Meadows v. Jeffreys

• Court: Missouri Court of Appeals
• Writing for the Court: GARRISON; MONTGOMERY, P.J., and BARNEY
• Citation: Meadows v. Jeffreys, 929 S.W.2d 746 (Mo. App. 1996)
• Decision Date: 30 April 1996
• Docket Number: Nos. 20282,s. 20282
• Parties: Rebecca MEADOWS, Individually; as Personal Representative of the Estate of Hazel I. Greer, Deceased; and as Trustee of the Paage N. Weis Trust, Plaintiff/Appellant, v. Flossie G. JEFFREYS, Beverly Thornton and Frank Thornton, Defendants/Cross-Appellants. & 20299.

Page 746

929 S.W.2d 746

Rebecca MEADOWS, Individually; as Personal Representative of the Estate of Hazel I. Greer, Deceased; and as Trustee of the Paage N. Weis Trust Plaintiff/Appellant, v. Flossie G. JEFFREYS, Beverly Thornton and Frank Thornton Defendants/Cross-Appellants.

Nos. 20282 & 20299.

Missouri Court of Appeals,

Southern District,

Division One.

April 30, 1996.

Rehearing Denied May 22, 1996.

Lee Chestnut, Springfield, for plaintiff-appellant.

Douglas W. Greene, III, Jason W. Johnson, Twibell, Greene, Johnson & Kizer, Springfield, for defendants/cross-appellants.

GARRISON, Judge.

In this consolidated appeal, Rebecca Meadows (Plaintiff) appeals, in Case No. 20282, from an order sustaining Defendants' motion to dismiss her petition for failure to state a claim. Flossie G. Jeffreys (Deceased), ¹ Frank Thornton and Beverly Thornton (Defendants) appeal, in Case No. 20299, from the trial court's order denying their motion for damages on an attachment bond. The following is a summary of the facts as we glean them from the record.

Hazel I. Greer had two bank accounts at Boatmen's Bank of Southern Missouri totalling $60,279.98. Each account was held in the names of Ms. Greer, Plaintiff and Defendant Flossie Jeffreys as joints tenants with rights of survivorship. Ms. Greer died on February 12, 1994, and on February 25, 1994, Defendant Flossie Jeffreys withdrew the funds from these accounts and purchased two certificates of deposit, titled to her and Defendant Beverly Thornton as joint tenants.

Plaintiff filed this suit on March 14, 1994, individually, as personal representative of the estate of Hazel I. Greer, deceased, and as trustee of the Paage N. Weis Trust. ² The suit originally named Flossie G. Jeffreys and Beverly Thornton as defendants, but Frank Thornton (Beverly's husband) was later added as a defendant. In her petition, Plaintiff sought damages, an accounting, and a writ of attachment as a result of the removal of the money from the joint accounts. She also filed an attachment bond and obtained the issuance of a writ of attachment which was served the following day on Defendants. A garnishment was also served on Boatmen's Bank of Southern Missouri on the same day. All of the funds from the certificates of deposit were withdrawn from Boatmen's by Defendants, notwithstanding the earlier service of the writ of attachment and garnishment.

On March 17, 1994, the court issued a show cause order to the Thorntons pursuant to Plaintiff's motion to hold them in contempt. Later, Defendants filed a motion to dissolve the attachment, a motion to examine the attachment bond, and the motion to dismiss for failure to state a claim. On March 31, 1994, at the conclusion of an evidentiary hearing on the motions to dissolve the attachment and to hold Defendants in contempt, the court announced that it was dissolving the attachment and quashing the garnishment. In doing so, the court made comments on the record, summarized as follows:

1.) It did not believe Plaintiff was a proper plaintiff because there had been no estate opened for Ms. Greer and she had not, therefore, been appointed personal representative.

2.) That Hazel Greer effected a nonprobate transfer of the moneys, pursuant to §§ 461.003-.081, ³ when she placed them into a joint account. The court also noted that § 461.071 provides that beneficiaries of a nonprobate transfer or others receiving property of the decedent by a transfer other than from the administration of the decedent's probate estate are liable to account to the personal representative for a pro rata share of the value received to the extent necessary to discharge unpaid claims. It also indicated that § 461.071.2 provides that only the decedent's personal representative may enforce such obligations after receiving a written demand by a creditor or other specified persons. Plaintiff, however, had not been appointed to that capacity. In addition, the court said that the probate division of the circuit court has jurisdiction to hear and determine such matters.

3.) Because Plaintiff was not a creditor, the attachment was improvidently granted.

4.) "I would--although I'm not acting today, as far as I know, on a motion to dismiss, I must tell you that if a motion to dismiss the action on the pleadings comes my way, it's likely that I'm going to dismiss the whole lawsuit because I think if there's going to be a lawsuit under this--on this problem, it's more properly done in probate court under Section 461.071." ⁴

The following day, Plaintiff filed a motion for reconsideration, and on June 22, 1994, Defendants filed a motion for damages on the attachment bond. On October 17, 1994, Plaintiff's counsel wrote the trial court informing it that Flossie G. Jeffreys had died. Thereafter, the court, on May 9, 1995, entered an order finding that "defendants, as joint tenants, had the absolute right to withdraw the funds" and granted this motion to dismiss. The court also denied Plaintiff's motion to reconsider dissolution of the attachment as well as Defendants' motion for damages on the attachment bond.

Plaintiff and Defendants, in their respective notices of appeal, have identified the order or judgment appealed from as that of May 9, 1995. ⁵ These appeals, although consolidated by this court, will be discussed separately.

CASE NO. 20282

According to the record before us, Flossie G. Jeffreys died on September 8, 1994. The fact of her death was the subject of the letter by Plaintiff's counsel to the court dated October 17, 1994, a copy of which was sent to opposing counsel. ⁶ This was after the evidentiary hearing on the motion to dissolve the attachment, and after the parties argued the motion to dismiss, but before the trial court entered the order and judgment from which this appeal flows.

Rule 52.13(a)(1) provides, in pertinent part:

If a party dies and the claim is not thereby extinguished, the court may, upon motion, order substitution of the proper parties. Suggestion of death may be made by any party or person in interest by the service of a statement of the fact of the death as provided herein for the service of a motion.... Unless a motion for substitution is served within 90 days after a suggestion of death is filed, the action shall be dismissed as to the deceased party without prejudice.

In the instant case, nothing occurred with reference to substituting a party for Ms. Jeffreys before the court entered its judgment and order dismissing the petition and denying the motion for damages on the attachment bond on May 9, 1995, which was more than 90 days following the suggestion of death.

Plaintiff's claim against the Defendants, including Ms. Jeffreys, was for a money judgment, an accounting and an attachment. Ms. Jeffreys' death did not extinguish those claims against her. Pursuant to Rule 52.13(a)(1), however, the trial court was required to dismiss the suit against Ms. Jeffreys, without prejudice, as a result of the failure to file a motion for substitution within 90 days after the suggestion of death. ⁷ As indicated earlier, the dismissal in the instant case was involuntary and, by reason of Rule 67.03, was without prejudice. The trial court, therefore, dismissed the suit against Ms. Jeffreys without prejudice, as it was required to do. The fact that it correctly did so but for the wrong reasons does not require reversal. Metropolitan Tickets, Inc. v. City of St. Louis, 849 S.W.2d 52, 53 (Mo.App.E.D.1993).

The dismissal of the claims against Ms. Jeffreys did not affect the continuation of the action against the remaining Defendants and the ruling concerning the claims against them. See Loven v. Davis, 783 S.W.2d at 154. Accordingly, we will consider the merits of Plaintiff's appeal concerning the dismissal of the Petition as it relates to the remaining Defendants.

Before doing so, we note that Defendants have filed a motion to dismiss Plaintiff's appeal, alleging that her points relied on violate Rule 84.04. Subsection (d) of that rule requires that points relied on "state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous...." Three things are required with respect to points relied on: (1) a statement of the action or ruling of the trial court about which the party complains; (2) a statement that specifies why the ruling was erroneous; and (3) a statement informing the appellate court wherein the evidence at trial supports the position the party asserts the trial court should have taken. Bentlage v. Springgate, 793 S.W.2d 228, 229 (Mo.App.S.D.1990). Defendants argue that Plaintiff's points relied on violate each of these requirements.

As explained in Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978):

[C]ompliance with these requirements is a matter of common sense if counsel bear in mind the informational purpose of the brief. After stating the ruling the trial court actually made, it stands to reason that the point should then specify why the ruling was erroneous. This requirement essentially contemplates a statement which ordinarily will closely approximate what appellant believes should have been the trial court's conclusion of law on the point being addressed. After stating why the ruling was erroneous, the court then must be informed wherein the testimony or evidence gives rise to the ruling for which appellant contends.

The requirements of Rule 84.04 are mandatory. In re Marriage of Sowers, 733 S.W.2d 19, 20 (Mo.App.S.D.1987). Although in this case we deny Defendants' motion to dismiss, we will discuss violations of Rule 84.04 in conjunction with our discussion of each of the points on appeal.

Plaintiff's first point is:

POINT ONE

The trial court's decision that the deceased had effected a nonprobate transfer of the funds in her account, thus apparently bringing this matter under the exclusive jurisdiction of the probate court on a request for relief was in error...