Estate of McCormack v. McCormack, 48026

• Decision Date: 11 September 1984
• Docket Number: No. 48026,48026
• Citation: 676 S.W.2d 928
• Parties: In the ESTATE OF James H. McCORMACK, Deceased, Plaintiff-Appellant, v. Donna S. McCORMACK and Jackie McCormack, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 928

676 S.W.2d 928

In the ESTATE OF James H. McCORMACK, Deceased, Plaintiff-Appellant, v. Donna S. McCORMACK and Jackie McCormack, Defendant-Respondent.

No. 48026.

Missouri Court of Appeals,

Eastern District,

Division Three.

Sept. 11, 1984.

Robert L. Brown, Arnold, for plaintiff-appellant.

Dallas W. Cox, St. Louis, for defendant-respondent.

KAROHL, Presiding Judge.

In this appeal we are asked to decide whether the court correctly dismissed plaintiff estate's "First Amended Petition To Discover Assets." We find that the judgment is not a final judgment. We sustain respondents' motion to dismiss the appeal as premature.

The right to appeal is purely statutory. Plaza Point Investments, Inc. v. Dunnaway, 637 S.W.2d 303, 305-06 (Mo.App.1982). Section 512.020 RSMo 1978 permits an appeal only from a final judgment disposing of all parties and all issues. Hill v. Boles, 583 S.W.2d 141, 147 (Mo. banc 1979). As we view this case the ruling of the trial court did not and could not have disposed of all of the parties on any legal theory. We hold that the judgment was not a final judgment. Accordingly, we dismiss the appeal as premature and remand.

The "Order Dismissing Amended Petition" reads as follows:

Comes now this day [November 7, 1983] the court and sustains the respondents' motion to dismiss amended petition of the personal representative of the decedent's estate.

We begin by concluding that by implication the trial court allowed plaintiff estate to file its "First Amended Petition To Discover Assets." The amended petition is lodged in two counts. Count I attempts to allege a cause of action against decedent's son, Jackie McCormack, and his wife, Donna S. McCormack. Count II attempts to allege a cause of action against one Imogene Jones.

Before analyzing the allegations in Counts I and II it is significant that the plaintiff estate's original pleadings against respondents Jackie and Donna McCormack, only, were filed in April, 1983 and were followed by answers in the nature of general denials. The verified petitions alleged that respondent Donna McCormack was the custodian of certain accounts containing deposits belonging to the decedent and that she was in possession of miscellaneous savings bonds owned by the decedent. The claim against respondent Jackie McCormack alleged that he was in possession of cash and enumerated items of personal property belonging to the decedent. The estate requested the return of these items of decedent's property.

After a hearing was set on the original petitions plaintiff estate attempted to file a "First Amended Petition To Discover Assets." Count I of the proposed amended petition realleged the existence of custodial accounts containing property belonging to the decedent, possession of savings bonds belonging to the decedent, and that respondent Donna McCormack had breached a fiduciary duty in managing property of the decedent over a period of approximately eight years and was indebted to the estate for breach of her fiduciary duty. The amended petition in Count II alleged that Imogene Jones had in her possession some of the same savings bonds referred to in Count I and requested that they be returned to the estate.

Respondents McCormack filed an alternative motion to oppose leave to file the first amended petition or for dismissal of the first amended petition, if filed. In view of the form of the order here appealed we consider only the grounds for respondents' motion to dismiss: (1) that Count I raises issues equitable in nature over which the probate court has no jurisdiction; (2) that Counts I and II fail to state a claim upon which relief can be granted because it seeks to make assets of the estate accounts which were held in joint tenancy with right of survivorship and attempts to reach assets which have been expended and were not in existence at the time of death of James H. McCormack; (3) if the petition attempts to allege a cause of action in fraud it is barred by the statute of limitations, citing § 472.012 [sic § 472.013], RSMo Supp.1984 enacted January 1, 1981.

Dismissal for failure to state a cause of action was an error of law. Probate pleadings are not to be judged by the strict rules of pleadings applied to a petition in the circuit court. If the pleadings give reasonable notice of the nature and extent of the claim strict rules of pleadings applied to a petition in the circuit court are not required. See Jensen v. Estate of McCall, 426 S.W.2d 52, 55 (Mo.1968). Although the Jensen holding approved a claim against the estate we see no reason not to apply the general rule in pleadings on behalf of the estate. Further, "[t]he trial court's ruling on a motion to dismiss for failure to state a claim must be construed liberally and favorably to plaintiffs, giving them the benefit of all inferences fairly deducible from the facts stated therein (citation omitted). The facts alleged in the petition should be assumed to be true (citation omitted). The dismissal will be upheld only if plaintiff could not recover on any theory pleaded (citation omitted)." Gaines v. Monsanto Company, 655 S.W.2d 568, 570 (Mo.App.1983).

Applying these principles we find that the first amended petition states a cause of action against respondents McCormack. Although Count I is a confusing mixture of attempted claims it states a cause of action for the return of custodial accounts, savings bonds and personal property alleged to be in the possession of respondents McCormack. § 473.340.1 RSMo Supp.1984. It also states a common law cause of action for...