Chaney v. Cooper

• Decision Date: 16 September 1997
• Docket Number: No. WD,WD
• Citation: 954 S.W.2d 510
• Parties: Marjorie Helen CHANEY and Virginia Lee Soetaert, Appellants, v. Bryan Lee COOPER, Personal Representative of the Estate of Virginia L. Gray, Respondent. 53281.
• Court: Missouri Court of Appeals

Page 510

954 S.W.2d 510

Marjorie Helen CHANEY and Virginia Lee Soetaert, Appellants, v. Bryan Lee COOPER, Personal Representative of the Estate of Virginia L. Gray, Respondent.

No. WD 53281.

Missouri Court of Appeals Western District.

Sept. 16, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 28, 1997.

Application to Transfer Denied

Nov. 25, 1997.

David G. Watkins, Pershing Road, Kansas City, for Appellants.

Alvin Shapiro, Main St., Kansas City, for Respondent.

HANNA, Judge.

Petitioners, Marjorie Chaney and Virginia Soetaert, filed an action for discovery of assets in the probate estate of Virginia Gray. Brian Cooper is the personal representative of the estate. The trial court sustained the respondent's motion to dismiss. Petitioners appeal.

The present proceeding is an off-shoot of a dispute over the ownership of certain assets, which originated from the condemnation proceeds of a family-owned farm in Missouri. The present petitioners, Marjorie Chaney and Virginia Soetaert, are daughters of Jess and Verda Gray. The respondent, Brian Cooper, is the personal representative of the estate of Virginia L. Gray, and he is also the son of Leslie Paul Gray, a deceased son of Jess and Verda. Leslie Paul was married to Virginia Gray. Verda Gray predeceased her daughter-in-law, Virginia Gray.

Jess Gray died in 1966, and his son, Leslie Paul Gray, was named the executor of the estate. Jess' wife, Verda Gray, died testate on January 1, 1989. Her son, Leslie Paul Gray, again served as the personal representative of the estate. Leslie Paul died testate in July 1991, and his wife, Virginia Gray, served as the personal representative of his estate.

The petitioners charge inter alia, that the deceased, Virginia Gray, and that Brian Cooper, in his capacity as the personal representative of Virginia Gray's estate, failed to conclude the administration of Verda Gray's estate, and failed to distribute to petitioners their two-thirds share of monthly and annual rent payments produced from real property located in Memphis, Shelby County, Tennessee. Verda Gray's will devised, inter alia, her one-half interest in the Tennessee property to her three surviving children, Leslie Paul Gray, Virginia Soetaert, and Marjorie Chaney, to be shared equally. Petitioners seek to recover the rent proceeds paid into the estate, which they claim to be theirs under Verda's will, with interest accrued since the date of Verda's death. As such, they have filed a petition for the discovery of assets in the probate court of Jackson County.

The first dispute involving these parties was over the interpretation of the will of Jess Gray, who originally owned the Missouri farm. In December 1991, the two present petitioners, together with the surviving spouses and surviving children of two of Jess and Verda's deceased sons, Vernon Harold Gray and Everett Woodrow Gray, filed suit against Virginia Gray, individually and as the personal representative of Leslie Paul's estate and the children of Leslie Paul and Virginia Gray. The plaintiffs claimed entitlement under Jess Gray's will to Verda Gray's interest in the Shelby County, Tennessee, real estate and approximately $300,000 in various bank accounts held in the joint names of Verda Gray and Leslie Paul Gray.

The trial court awarded plaintiffs $314,000. The defendants appealed without posting bond. While the appeal was pending, the plaintiffs executed on the trial court's judgment in their favor and garnished a total of $212,863.26 from five bank accounts. The money was paid out by the court administrator's office to the plaintiffs' law firm, where it was held in a separate interest-bearing account.

We reversed the trial court's judgment and found that Jess Gray's will granted to his wife, Verda Gray, a determinable fee simple estate. Chaney v. Gray, 898 S.W.2d 577 (Mo.App.1995) (Chaney I ). Our decision allowed Verda, who died without remarrying, to transfer or dispose of her proceeds by inter vivos gift or testamentary disposition. Id. at 583.

On remand, the defendants sought return of the $212,863.26 previously garnished from their bank accounts. Among other objections, the plaintiffs asserted three set-off claims against the defendants' claim of restitution. The first set-off claim was for accountant's fees, which the defendants agreed was proper. The second set-off was for rent from the Tennessee property, and the third set-off was for the plaintiffs' claimed interests in the Tennessee property and money in various bank accounts held in the joint names of Verda and Leslie Paul Gray. The trial court denied the second set-off claim, holding that it arose out of the plaintiffs' capacity as devisees under Verda's will, and that issue had not been decided by the court. The trial court further found that they had an adequate remedy at law in more appropriate forums. The third set-off claim was denied because it was identical to the claims presented in the original lawsuit, which was decided against the plaintiffs in Chaney I. We recently affirmed the trial court's decision in the restitution case in Chaney v. Cooper, 948 S.W.2d 621 (Mo.App.1997) (Chaney II).

In the present lawsuit for discovery of assets, respondent Cooper filed a motion to dismiss, with numerous attachments, arguing that res judicata and collateral estoppel barred the petitioners' lawsuit. Additionally, he asserted that petitioners' suit should be barred because the same claims are pending in other jurisdictions, that petitioners are estopped by virtue of the "unclean hands" doctrine and finally, the in terrorem clause in Verda's will. The trial court, without citing the basis for its decision, dismissed the plaintiffs' petition with prejudice. The defenses raised do not provide a basis for the trial court's ruling. The petition for discovery of assets should not have been dismissed.

On appeal, the petitioners allege that the defendant's motion to dismiss was actually a motion for summary judgment and, as such, it failed to comply with Supreme Court Rule 74.04. The petitioners also contend that none of the legal defenses cited in the respondent's motion in the circuit court (res judicata, collateral estoppel, pending litigation in other jurisdictions, "unclean hands," or the "in terrorem " clause in Verda's will) operated to bar their claims.

In the petitioners' first point, they claim that the motion to dismiss should have been considered as a motion for summary judgment because of the presentation of extraneous matters attached to the motion. Continuing, they contend that the motion for summary judgment was defective because the respondent did not state with particularity, in separately numbered paragraphs, each material fact about which there was no genuine issue. Therefore, the motion, as converted to a motion for summary judgment, failed to technically comply with Rule 74.04(c)(1). See King General Contractors, Inc. v. Reorganized Church of the Latter Day Saints, 821 S.W.2d 495, 498 (Mo. banc 1991).

While the motion was titled a motion to dismiss, attached to it were a number of documents which were an integral part of the motion. Motions to dismiss are ordinarily confined to the pleadings and construed in a light favorable to the plaintiff, but when matters outside of the pleadings are considered, and not excluded by the court, the court shall treat the motion to dismiss as one for summary judgment. See Gardner v. City of Cape Girardeau, 880 S.W.2d 652, 654 (Mo.App.1994). Because the extraneous documents were relied on by the respondent in his presentation to the trial court, the motion will be treated as one for summary judgment.

The respondent did not designate material facts about which there is no genuine issue. However, the documents all originated from court proceedings. Attached to the motion, in separately numbered paragraphs, were the petitioners' Second Amended Petition to Impose Constructive Trust in Chaney I, the circuit court's findings of fact and conclusions of law in Chaney I, judgment entries by the Jackson County circuit court, and this court's opinion and mandate in Chaney I. Regarding the pending litigation defense, the respondent attached and relied on Helen Chaney's objections to the admission of Verda Gray's will to probate in Tennessee, plaintiffs' objections to respondent's motion for an order of garnishment in the Kansas District court, and the petitioners' appeal to this court in Chaney II.

While there is considerable argument between the parties as to the legal effect of these documents and pleadings, there is no dispute as to their authenticity or existence. Also, the motion and the legal memoranda filed by both parties, made specific references to the documents which displayed a lack of any dispute as to such facts. Rule 74.04(c)(1). The arguments in the memoranda of both parties went to the legal effect of the documents. Specifically, the petitioners' memorandum filed in opposition does not contest the documents but rather argues why, as a matter of law, judgment should not be granted with respect to the issues raised by the respondent.

It is apparent that the parties and the court were informed of the issues and the lack of any genuine factual dispute with respect to these documents. The purpose of the rule has been met in that the requirement to apprise the opposing party, the trial court, and the appellate court of the specific basis on which the movant claims he is entitled to summary judgment has been met. The motion substantially complied with Rule 74.04(c)(1).

Our review of the propriety of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is viewed in the light most favorable to the party against whom summary judgment was entered, and that party is afforded all reasonable inferences that may be drawn from the evidence. See id. Facts in support of a...