In re Nelson

• Decision Date: 28 October 2003
• Docket Number: No. WD 62082.,WD 62082.
• Citation: 119 S.W.3d 197
• Parties: In re the Matter of Nathan Neal NELSON, a Minor, Robert Neal Nelson, Appellant, v. Elaine Marsh, Respondent.
• Court: Missouri Court of Appeals

119 S.W.3d 197

In re the Matter of Nathan Neal NELSON, a Minor,

Robert Neal Nelson, Appellant, v. Elaine Marsh, Respondent.

No. WD 62082.

Missouri Court of Appeals, Western District.

October 28, 2003.

John H. Edmiston, Warrensburg, MO, for appellant.

Douglas B. Harris, Warrensburg, MO, for respondent.

Before BRECKENRIDGE, P.J., and EDWIN H. SMITH and HOWARD, JJ.

EDWIN H. SMITH, Judge.

Robert Neal Nelson appeals the judgment of the Circuit Court of Johnson County, Probate Division, dismissing, for failure to state a claim upon which relief could be granted, his "petition," which he contends was filed in accordance with § 511.250,¹ to set aside the court's order appointing Elaine Marsh (respondent), the Johnson County Public Administrator, the conservator of the estate of his son, Nathan Neal Nelson (Nathan), a minor. Although the probate court found that the appellant was a fit and proper person to serve as the conservator of Nathan's estate, the court did not appoint him because it found that he had certain conflicts of interest precluding his appointment.

In his sole point on appeal, the appellant claims that the probate court erred in dismissing his "petition" to set aside the court's prior judgment, appointing the respondent the conservator of Nathan's estate, because the facts pled therein and the reasonable inferences to be drawn therefrom, when taken as true and given their broadest intendment, stated a cause of action, under § 511.250, for setting aside the court's order as being irregular on its face.

We affirm.

Facts

On October 5, 2000, the appellant filed an application in the Circuit Court of Johnson County, Missouri, Probate Division, seeking to be named the conservator of the estate of his son Nathan, a minor. The estate was necessitated by reason of Nathan's being a beneficiary of his deceased mother's estate.

The appellant's application was taken up and heard on February 13, 2001. On February 23, 2001, the probate court entered its judgment, finding, inter alia, that while the appellant was a fit and proper person to serve as Nathan's conservator, he had certain conflicts of interest, which precluded his appointment. The court then ordered the respondent appointed the conservator of Nathan's estate.

On April 17, 2002, the appellant filed a "PETITION² [hereinafter referred to as a motion] TO SET ASIDE ORDER APPOINTING CONSERVATOR AND TO REOPEN THE HEARING ON ROBERT NEAL NELSON'S `APPLICATION FOR APPOINTMENT OF CONSERVATOR' SUCH AS TO ALLOW FOR THE PRESENTATION OF ADDITIONAL EVIDENCE." In his motion, the appellant alleged that the probate court's judgment should be set aside as being "irregular on its face." On April 30, 2002, the respondent filed a motion to dismiss the appellant's motion to set aside, alleging that it failed to state a claim upon which relief could be granted. On May 17, 2002, the respondent's motion to dismiss was taken up and heard by the probate court and sustained. The order of dismissal was made by docket entry and was not denominated a judgment.

The appellant appealed to this court the probate court's order of May 17, 2002, dismissing his motion to set aside the court's judgment of February 23, 2001. In Nelson v. Marsh (Nelson I ), WD61553, we dismissed the appeal for want of a final judgment, finding that the probate court's docket dismissal was not denominated a judgment, as required by Rule 74.01(a).³

On September 12, 2002, the appellant filed a notice of hearing, announcing that he was "call[ing] up for hearing and disposition the Motion to Dismiss filed on behalf of [the respondent] before the Circuit Court of Johnson County, Probate Division, at Warrensburg, on 2nd day of October, 2002, at 8:30 a.m.," the same motion that was sustained on May 17, 2002. On October 2, 2002, a hearing was held. In a docket entry of the same date, the probate court entered a "judgment," which reads:

ATTORNEYS JOHN H. EDMISTON AND DOUGLAS B. HARRIS APPEAR IN CHAMBERS. RECORD IS WAIVED. ARGUMENTS ARE HEARD. COURT FINDS THAT THE MOTION TO DISMISS HAS PREVIOUSLY BEEN TAKEN UP AND SUSTAINED BY THE COURT ON MAY 17, 2002, AS SET FORTH IN ITS DOCKET ENTRY OF THAT DATE, AND THAT THERE IS NOTHING PENDING BEFORE THE COURT AT THIS TIME TO BE RULED.

It is this judgment, from which the appellant purports to appeal.

Appellate Jurisdiction

Before addressing the merits of the appellant's claim, we first must address the respondent's contention that the October 2, 2002 judgment, dismissing the appellant's motion, from which the appellant purportedly appeals, does not address any issue raised by him on appeal, such that there is nothing preserved for this court to review. In other words, the respondent is claiming that the appellant is not appealing from a final and appealable judgment, such that this court is deprived of jurisdiction. See Lawrey v. Reliance Ins. Co., 26 S.W.3d 857, 864 (Mo.App.2000) (holding that unless otherwise authorized by rule or law, an appeal will lie only from a final judgment). Whether raised by a party or not, this court is to determine, sua sponte, its jurisdiction in every case. Schroff v. Smart, 73 S.W.3d 28, 30 (Mo.App.2002).

As noted, supra, the appellant purportedly appeals from the probate court's judgment of October 2, 2002, which was made by docket entry and reads:

JUDGMENT

ATTORNEYS JOHN H. EDMISTON AND DOUGLAS B. HARRIS APPEAR IN CHAMBERS. RECORD IS WAIVED. ARGUMENTS ARE HEARD. COURT FINDS THAT THE MOTION TO DISMISS HAS PREVIOUSLY BEEN TAKEN UP AND SUSTAINED BY THE COURT ON MAY 17, 2002, AS SET FORTH IN ITS DOCKET ENTRY OF THAT DATE, AND THAT THERE IS NOTHING PENDING BEFORE THE COURT AT THIS TIME TO BE RULED.

The hearing that caused this docket-entry judgment was noticed up by the appellant.

In the notice, filed September 12, 2002, the appellant indicated that he was "call[ing] up for hearing and disposition the Motion to Dismiss filed on behalf of [the respondent] before the Circuit Court of Johnson County, Probate Division, at Warrensburg, on 2nd day of October, 2002, at 8:30 a.m.," the same motion that was sustained on May 17, 2002. This notice was apparently precipitated by this court's dismissal of the appellant's appeal in Nelson I of the probate court's docket-entry order of May 17, 2002, which reads:

CONSERVATOR APPEARS BY ATTORNEY MONICA D. HUTCHINSON. PETITIONER APPEARS BY ATTORNEY JOHN H. EDMISTON. PETITION FOR SUBSTITUTION OF FIDUCIARY FILED BY ROBERT NEAL NELSON IS WITHDRAWN. CONSERVATOR'S MOTION TO DISMISS "PETITION TO SET ASIDE ORDER APPOINTING CONSERVATOR AND TO REOPEN THE HEARING ON ROBERT NEAL NELSON'S APPLICATION FOR APPOINTMENT OF CONSERVATOR SUCH AS TO ALLOW FOR THE PRESENTATION OF ADDITIONAL EVIDENCE" IS TAKEN UP. ARGUMENTS ARE HEARD. COURT THEREAFTER SUSTAINS THE MOTION AND ORDERS THAT THE PETITION IS DISMISSED.

In dismissing the appellant's appeal from that order, without opinion, this court ruled that the May 17, 2002 order sustaining the respondent's Rule 55.27(a)(6) motion to dismiss, was not a final judgment in that it was not denominated as a judgment, as required by Rule 74.01(a).

The appellant apparently incorrectly took from our dismissal of his appeal in Nelson I that he was entitled to a reconsideration of the probate court's order dismissing his motion to set aside the court's order appointing the respondent the conservator of Nathan's estate. What he should have taken from our dismissal was that, in order to appeal the probate court's order, he had to obtain, in conformity with Rule 74.01(a), a "writing signed by the judge and denominated `judgment'," dismissing his motion. Apparently confused by the appellant's notice of hearing, the probate court, rather than simply reviewing this court's dismissal of the appellant's appeal and entering an order dismissing the appellant's motion and denominating it a "judgment," entered what it denominated a "judgment," finding that "the motion to dismiss has previously been taken up and sustained by the court on May 17, 2002, as set forth in its docket entry of that date, and that there is nothing pending before the court at this time to be ruled."

In resolving the issue of whether an appeal would lie from the probate court's purported October 2, 2002 "judgment," we begin with the fact that this court's dismissal of the appellant's appeal in Nelson I, for failure to have a writing signed by the court and denominated a judgment, as provided in Rule 74.01(a), was improvident, in that it is well settled that Rule 74.01(a) does not apply to probate proceedings. State ex rel. Baldwin v. Dandurand, 785 S.W.2d 547, 549 (Mo. banc 1990); Estate of Clark, 83 S.W.3d 699, 701-02 (Mo.App.2002); Kemp v. Balboa, 959 S.W.2d 116, 118 (Mo.App.1997). Section 472.160.1(14) expressly authorizes an appeal from the probate division "[i]n all other cases [other than those enumerated in the statute] where there is a final order or judgment ... except orders admitting to or rejecting wills from probate." (Emphasis added). Thus, the fact that the probate court's May 17, 2002 docket entry was not denominated a judgment, as provided in Rule 74.01(a), was not sufficient cause for this court to have dismissed the appellant's appeal in Nelson I. The probate court's dismissal order of May 17, 2002, was a final order subject to appeal under § 472.160.1(14). Because we incorrectly dismissed the appellant's first appeal from the May 17, 2002 order, we will treat this appeal as an appeal from that order rather than an appeal from the October 2, 2002 "judgment," which simply found that there was nothing pending to rule upon, citing the May 17, 2002 order as being final.

The respondent further challenges the jurisdiction of this court contending that the appellant's motion to set aside the probate court's order appointing the respondent the conservator of Nathan's estate was time barred. If, in fact, the appellant's motion was barred, then the probate court would have lacked jurisdiction to rule,...