In the Estate of Trudy Miller v. Bailey

• Decision Date: 28 January 2000
• Citation: 9 S.W.3d 760
• Parties: (Mo.App. S.D. 2000) In the Estate of Trudy Miller, Deceased, Michelle Helton, Personal Representative, Appellant-Respondent, v. Blaine Bailey, Respondent-Appellant. 22801 and 22828 0
• Court: Missouri Court of Appeals

9 S.W.3d 760 (Mo.App. S.D. 2000)

In the Estate of Trudy Miller, Deceased, Michelle Helton, Personal Representative, Appellant-Respondent, v. Blaine Bailey, Respondent-Appellant.

22801 and 22828

Missouri Court of Appeals Southern District

01/28/2000

Appeal From: Circuit Court of Maries County, Hon. David Gregory Warren

Counsel for Appellant: G. Brad Crowell, Stephen F. Gaunt and David L. Steelman

Counsel for Respondent: Tyce S. Smith, Sr., and Colin P. Long

Opinion Summary: None

Montgomery, P.J., and Garrison, C.J., concur.

Robert S. Barney, Judge

These consolidated appeals arise from an order entered on January 21, 1999, by the Honorable David Gregory Warren, special judge, (the "Warren Order"), in the Probate Division of the Circuit Court of Maries County (the "probate court"). The Warren Order set aside a "Judgment and Order" previously entered by the Honorable B.B. Turley, also a judge of the probate court, on September 28, 1998, (the "Turley Judgment").

In the probate court proceedings underlying both of the appeals before us, Michelle L. Helton, personal representative of the Estate of Trudy L. Miller, deceased, ("Appellant") filed a petition for discovery of assets and to set aside a joint survivorship deed to a farm, in which Blaine A. Bailey ("Respondent") was a named joint tenant. In the Turley Judgment, the probate court, inter alia, granted Appellant's amended petition to discover assets and accordingly set aside, vacated and annulled the joint survivorship deed under consideration. Respondent filed several post-hearing motions to set aside the Turley Judgment. See infra. Judge Warren granted one of Respondent's post-hearing motions and set aside and voided the Turley Judgment on the basis that Respondent had not been a "Party to the Lawsuit."¹. The Warren Order further recited that "[a]ll other pending motions are herewith denied."

In Appeal No. 22801, Appellant now raises two points of trial court error. In her first point, she contends that the probate court erred in setting aside the Turley Judgment because Respondent was, indeed, a party to the probate proceedings in that he was specifically named in the pleadings at least six times; received notice of the nature and extent of the Appellant's interest in the property and was given ample opportunity to present his case. In her second point, she contends that the probate court erred in setting aside the Turley Judgment because Respondent had waived any defense of lack of personal jurisdiction by not making a timely motion claiming a lack of personal jurisdiction as provided by Rule 55.27.². We conclude that Appellant's first point, discussed infra, has merit. Accordingly, Appellant's second point is moot and will not be reviewed.

In Appeal No. 22828, Respondent also appeals from the Warren Order, positing probate court error in the denial of two of his other post-trial motions that sought to set aside the Turley Judgment. He first complains that the probate court erred as a matter of law in "failing to set aside the [Turley Judgment]" on the basis that under section 473.340.2 and Rules 44.01 and 55.25, he was entitled to a full 30 days to respond to Appellant's amended petition for discovery of assets/set aside deed.³. He therefore maintains that the Turley Judgment was entered prematurely and should have been set aside on this ground, as well. Second, Respondent also asserts probate court error in not setting aside the Turley Judgment on the basis of his Rule 74.05 motion ("Entry of Default Judgment"). He maintains that he filed this motion within a reasonable time; demonstrated good cause for not filing a responsive pleading because his attempts to obtain representation were futile; was incarcerated and "presented a meritorious defense that arguably could have defeated the Appellant's claims of lack of consideration and undue influence." We determine that Respondent's two points, discussed below, are not meritorious and are denied.

As a preliminary matter, we observe that Respondent has suggested in the jurisdictional statements of his briefs that this Court may lack jurisdiction to review these appeals because the Warren Order is not denominated a "judgment" as required under Rule 74.01. See City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997); Chambers v. Easter Fence Co., Inc., 943 S.W.2d 863, 865 (Mo. banc 1997).⁴. "A reviewing court has a duty to determine its jurisdiction sua sponte." Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997).

This Court has previously observed that the "requirement of Rule 74.01(a) that a document from which an appeal is taken must be labeled 'judgment' does not apply to appeals from probate proceedings." Estate of Brown, 955 S.W.2d 940, 941 n.4 (Mo.App. 1997)(citing In the Matter of Kemp v. Balboa, 959 S.W.2d 116, 118 (Mo.App. 1997)). We conclude that the Warren Order is a final order of the probate court and is appealable to this Court. See section 472.160.1(14); Estate of Brown, 955 S.W.2d 940, 941 (Mo.App. 1997).

Before reviewing Appellant's first point in Appeal No. 22801, we must first examine the procedural history underlying these appeals. The record shows that on June 30, 1998, Appellant filed her initial petition to discover assets and to set aside a general warranty deed conveying certain tracts of real properties in Maries County, Missouri, to Trudy L. Miller and Respondent, as joint tenants with rights of survivorship. In these same pleadings Appellant also prayed that Respondent be "joined as a party hereto . . . ." We further observe from the record that on this same date Appellant filed a "petition for temporary restraining order and injunction and permanent injunction to prevent waste"("injunctive relief"). Thereafter, a summons and copy of the foregoing pleadings was issued by the court on July 8, 1998; mailed to special process server, Rufus R. Harmon, for service; and subsequently served upon Respondent on July 15, 1998.⁵. The record does not show that Respondent ever filed an answer to these initial pleadings.

On August 12, 1999, Appellant filed an amended petition for discovery of assets and to set aside a general warranty deed in two counts ("amended petition for discovery of assets"). In this petition, she reiterated her initial petition for discovery of assets; requested the court to set aside the aforementioned deed (Count I); and further requested that the court declare certain personal properties, primarily consisting of quarter horses, to be the property of the Estate of Trudy L. Miller (Count II). Appellant also prayed in each count that Respondent "be joined as a party hereto . . . ." This amended petition for discovery of assets, together with amended pleadings seeking injunctive relief, was first served upon Respondent on August 19, 1998, by special process server, Rufus R. Harmon, who then filed his affidavit with the probate court on August 28, 1998. Again, the record does not show that Respondent filed any answer to these amended pleadings.

On August 28, 1998, the amended pleadings were again served upon Respondent by a Maries County Deputy Sheriff, shortly before the court conducted a hearing regarding the granting of a temporary restraining order pursuant to the amended petition for injunctive relief. Although Respondent was present during the course of the August 28, 1998, hearing, he was not represented by counsel. It is undisputed that the probate court never issued an order formally joining Respondent as a party in the discovery of assets litigation.

During the course of the August 28, 1998, hearing, Respondent acknowledged that he had received service of process on the amended petition for discovery of assets and injunctive relief. Judge Turley announced "what we're going to indicate on the record is that that (sic) service as being had upon you on the 28th day of August. Then by operation of the law, you have 30 days to file any response that you wish to file in that." Respondent stated, "[o]kay." Judge Turley then informed Respondent that he had an "opportunity now to -- to obtain counsel on that."⁶. Respondent filed no responsive pleadings prior to the September 28, 1998, hearing.

On September 28, 1998, the probate court conducted a hearing on the amended petition to discover assets. Respondent appeared pro se but was accompanied by the public defender, who was representing him in the criminal proceedings pending against him.⁷. The probate court questioned Respondent as to his legal representation relating to the probate proceedings. Respondent stated that he had made several attempts to obtain an attorney to represent him but was unable to do so. The court denied Respondent's request for appointment of a civil attorney in the action.

I. Returning to Appellant's first point, we first note that "[t]rial courts are vested with broad discretion when acting on motions to vacate judgments." Branson Hills Assoc. v. Millington, 926 S.W.2d 178, 180 (Mo.App. 1996). "Appellate courts will not interfere with those actions unless the record on appeal convincingly demonstrates a trial court's abuse of discretion." Id.

Secondly, we observe that Judge Warren set aside the Turley Judgment on the basis that Respondent had not been formally named as a "Party to the Lawsuit." In the Warren Order, Judge Warren cited to State ex rel. Morris v. McDonald, 817 S.W.2d 923 (Mo.App. 1991), as authority for his determination. However, this foregoing case did not relate to probate proceedings. Instead, it was a civil action involving third-party practice requirements under Rule 52.11, arising from a cross claim against third-party defendants, where the third-party plaintiff failed to obtain leave of court to join third-party defendants. While we recognize that section 473.340.2 (the discovery of assets statute) provides that "[s]ervice of summons, petition and answer thereto together with all subsequent proceedings shall be...