Harris v. Edgar

• Decision Date: 19 July 2019
• Docket Number: No. SD 35905,SD 35905
• Parties: Cynthia HARRIS, Plaintiff-Appellant, v. Anna Mae EDGAR, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

583 S.W.3d 497

Cynthia HARRIS, Plaintiff-Appellant,

v.Anna Mae EDGAR, et al., Defendants-Respondents.

No. SD 35905

Missouri Court of Appeals, Southern District, Division Two.

Filed: July 19, 2019 Motion for Rehearing and/or Transfer to Supreme Court Denied August 13, 2019

ATTORNEYS FOR APPELLANT – DAVID M. LOWE, Waynesville MO, RONALD S. RIBAUDO. Ballwin, MO.

ATTORNEY FOR RESPONDENT – MARILYN W. DUNCAN, Van Alstyne, TX.

DON E. BURRELL, J.

Cynthia Harris ("Appellant") filed this civil action ("the civil case") against Respondents in the Circuit Court of Phelps County ("the circuit court"). The petition alleged that Appellant’s deceased husband, Melvin Harris ("Decedent"), had conveyed via a beneficiary deed two parcels of land to Respondents in fraud of Appellant’s marital rights. Respondents are heirs to Decedent’s estate, which is being administered ("the probate proceeding") in the Probate Division of the Circuit Court of Phelps County ("the probate division").

In three points relied on, Appellant appeals the circuit court’s judgment dismissing the civil case. Because the circuit court did not err in dismissing the case without prejudice based upon the doctrine of abatement, we affirm.

Background

The Probate Proceeding

Decedent died on March 21, 2015.¹ No application for letters testamentary or administration were filed within twenty days of his death, but on December 23, 2015, Anna Mae Edgar, Decedent’s sister ("Sister"), filed an affidavit in the probate division that alleged the appropriate criteria for opening a small-estate proceeding under section 473.097.² Sister also filed Decedent’s last will and codicil.

On February 5, 2016, Appellant filed in the probate proceeding a "Motion to Convert to Full Estate and Require Supervised Administration of Decedent’s Estate" ("Motion to Convert"). The Motion to Convert asked the probate division to "open a full estate" and appoint an administrator. Appellant also filed an election of surviving spouse claim, a homestead allowance claim, and a claim for an exempt property allowance.

The probate division denied Appellant’s Motion to Convert, a decision we reversed in Estate of Harris , 529 S.W.3d at 34. In reversing that decision, this court remanded the case with directions that the probate division open Decedent’s supervised estate and appoint an administrator. Id. at 35.

On remand, the probate division entered an order: (1) granting Appellant’s Motion to Convert, which required full administration of Decedent’s estate as Appellant had requested and as required by this court’s mandate; and (2) naming Sister to serve as personal representative. The order also noted that if Sister made timely application for letters of administration, "[a]ny such application shall be filed as a new proceeding in this [c]ourt and shall be accompanied by any applicable supporting documents and the appropriate filing fee."

Sister then timely filed her request for letters of administration in the probate division, and the proceeding was assigned case no. 17PH-PR00418. The probate division appointed Sister to serve as the personal representative of Decedent’s estate and began presiding over a full administration of that estate.

The Civil Case

Meanwhile, on July 8, 2016, Appellant filed a petition in the circuit court titled "PETITION TO SET ASIDE TRANSFER OF REAL PROPERTY AND DECLARATORY JUDGMENT [.]" The petition named as Respondents most of the heirs named in the ongoing probate proceeding. The petition alleged that Decedent had conveyed two parcels of realty, worth nearly $900,000, in fraud of Appellant’s marital rights. The property at issue had been transferred upon Decedent’s death to Decedent’s trust via a beneficiary deed, and those parcels of real property are included at this point as a part of Decedent’s estate in the probate proceeding. The petition also alleged that Sister was the recipient of the fraudulent transfers and that other Respondents/heirs may also have an interest in the fraudulently-conveyed property.

On December 27, 2018, Respondents filed "[RESPONDENT]S' MOTION TO DISMISS " Appellant’s petition in the circuit court ("Motion to Dismiss"). As their basis for dismissal, Respondents alleged that the property at issue was "part of the estate pending in the [probate division,]" and because the probate division already had "competent jurisdiction" over Decedent’s estate, that jurisdiction continued exclusively with the probate division until a final distribution of Decedent’s estate took place. The circuit court agreed, granted the Motion to Dismiss, and entered the judgment Appellant now appeals.

As of the date of this opinion, Appellant’s appeal of the probate proceeding remains pending and there has been no final settlement and distribution of Decedent’s estate.³

Analysis

Point 1

Appellant’s first point on appeal claims the trial court erred in granting the Motion to Dismiss because "Respondents['] invocation of their pending action/competent jurisdiction defense was untimely – in fact, they waived it – in that Respondents failed to raise the defense in a timely answer or motion to dismiss the amended petition (or even in a timely answer or motion to dismiss the original petition)." We disagree.

On review of a motion to dismiss for failure to state a cause of action this Court assumes that all the averments in the plaintiff’s petition are true, and liberally grants to plaintiff all reasonable inferences therefrom. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). We do not weigh any facts alleged as to whether they are credible or persuasive. Id.

Meyer v. Meyer , 21 S.W.3d 886, 889 (Mo. App. E.D. 2000).

Plaintiff filed her petition in the circuit court on July 18, 2016, followed by an amended petition on January 31, 2018. In December 2018, Respondents filed the Motion to Dismiss, which claimed that Decedent’s property – the subject matter of Appellant’s amended petition in the circuit court – had been fraudulently transferred to Decedent’s trust, thereby making the deed invalid and the property a part of Decedent’s estate currently pending in the probate proceeding.⁴ Respondents asserted that, "until the final distribution of the estate has been completed, the probate [division] retains proper jurisdiction of the entire estate, including the property which is the subject matter in this case." Appellant opposed the Motion to Dismiss on several grounds, the one at issue in this point being that it was untimely filed. In granting the Motion to Dismiss, the circuit court noted as follows:

Although [the Motion to Dismiss] may not be in technically correct form, the court determines its wording is effective to raise this court’s jurisdiction and the doctrine of abatement. In reEstate of Harris , 529 S.W.3[ ]d 31, 34 ( [Mo. App.] S.D. 2017).

It is clear the court has concurrent jurisdiction over the issues in this case but that jurisdiction is subject to the Doctrine of Abatement. "Abatement holds that where a claim involves the same subject matter and parties as a previously filed action so that the [same] facts and issues are presented, resolution should occur through the prior action and the second suit should be dismissed." Meyer v. Meyer , 21 S.W.3d 886, 889-[ ]90 ( [Mo. App.] E.D. 2000).

The circuit court went on to state that, "[w]hile this court has concurrent jurisdiction, ‘once competent jurisdiction is obtained by a probate [division] over an estate, it continues exclusively in that [division] as to all matters pertaining directly to the settlement of the estate until final distribution and prior to such distribution no other court, not even a court of concurrent jurisdiction can interfere with its actions.’ Meyer v. Meyer , supra at 890." The circuit court therefore granted the Motion to Dismiss "with leave [for Appellant] to pursue her claim in the probate estate."

The circuit court properly treated the Motion to Dismiss as stating conditions invoking the doctrine of abatement. See U.S. Bank, N.A. v. Coverdell , 483 S.W.3d 390, 403 (Mo. App. S.D. 2015) (internal citation omitted) (construing two "dismissal motions" as motions for abatement and noting that it was not necessary for the motions to cite Rule 55.27(a)(9) in order to present the abatement issue to the court)); see also Skaggs Chiropractic, L.L.C. v. Ford , 564 S.W.3d 633, 640-41 (Mo. App. S.D. 2018). More importantly, because the doctrine of abatement "operates to forestall the possibility of inconsistent judgments on the same claim[,] (internal citation omitted) [a] party has no ability to ‘waive’ this court’s authority to address its own prudential concern about the possibility of inconsistent judgments." Skaggs , 564 S.W.3d at 641 (citing In re KCP & L Greater Mo. Ops. Co. , 408 S.W.3d 175, 188 n.17 (Mo. App. W.D. 2013) ). See also Kelly v. Kelly , 245 S.W.3d 308, 314 (Mo. App. W.D. 2008) (suggesting that courts must address abatement issues sua sponte ).

Point 1 is denied.

Point 2

Point 2 claims the trial court erred in granting Respondent’s Motion to Dismiss "because Respondents['] pending action/competent jurisdiction affirmative defense was meritless[.]" Appellant supplies two reasons why said defense was meritless. We reject them in turn, based upon the following principles of law.

"Abatement, also known as the ‘pending action doctrine,’ holds that where a claim involves the same subject matter and parties as a previously-filed action so that the same facts and issues are presented, resolution should occur through the prior action and the second suit should be dismissed." ⁵Estate of Holtmeyer v. Piontek, 913 S.W.2d 352, 357 (Mo. App. E.D. 1996), citing State ex rel. J.E. Dunn v. Schoenlaub, 668 S.W.2d 72, 74–75 (Mo. banc 1984). The court in which the claim is first filed acquires exclusive jurisdiction over the matter. Bellon Wrecking & Salvage Co. v. David Orf, Inc., 983 S.W.2d 541, 548 (Mo. App. E.D. 1998). Though abatement generally does not apply where the parties' alignment

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