Young v. Perkins

• Decision Date: 30 June 1999
• Docket Number: 22575,Nos. 22521,s. 22521
• Parties: Dawn YOUNG, Terry Young, and Mary Beth Young, his wife, Plaintiffs-Appellants, v. Donald PERKINS and William Shay, Director of the U.S.D.A. Rural Development, Defendants-Respondents. Dawn Young, Terry Young, and Mary Beth Young, his wife, Plaintiffs-Appellants, v. Lee Davis, Defendant-Respondent, and Bobby Brewer, Defendant/Third-Party Plaintiff-Respondent, v. William Frank Watson, III, Third-Party Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 590

993 S.W.2d 590

Dawn YOUNG, Terry Young, and Mary Beth Young, his wife, Plaintiffs-Appellants, v. Donald PERKINS and William Shay, Director of the U.S.D.A.

Rural Development, Defendants-Respondents.

Dawn Young, Terry Young, and Mary Beth Young, his wife, Plaintiffs-Appellants, v. Lee Davis, Defendant-Respondent, and Bobby Brewer, Defendant/Third-Party Plaintiff-Respondent, v. William Frank Watson, III, Third-Party Defendant-Respondent.

Nos. 22521, 22575.

Missouri Court of Appeals,

Southern District,

Division Two.

June 30, 1999.

Don M. Henry, Henry, Henry, Henry, Engelbrecht & Williams, P.C., West Plains, for Appellants.

David G. Neal, Neal Law Firm, Eminence, for Respondent.

PHILLIP R. GARRISON, Chief Judge.

This consolidated appeal involves judgments entered by the circuit courts of Shannon and Oregon counties. In 1985 the Circuit Court of Oregon County entered a judgment on a jury verdict against Lee Davis ("Ms.Davis") in favor of Dawn Young ("Dawn") for $65,000, and in favor of her parents, Terry and Mary Beth Young, in the amount of $16,000. Thereafter, Ms. Davis's liability carrier paid $33,000, which was credited on Dawn's judgment. In 1991 the Circuit Court of Oregon County revived the judgment on the motion of Dawn and her parents (collectively referred to as "Appellants"). In response to a second motion to revive the judgment filed by Appellants in 1998, the court issued an order to Ms. Davis to show cause why the motion should not be sustained. When the show cause order was returned "non-est," it was learned that Ms. Davis had died in June 1996.

The record on appeal indicates that Donald Perkins ("Mr.Perkins") married Ms. Davis (hereinafter "Mrs. Perkins") in 1988, and that eighteen days prior to her death in 1996, she signed a quit claim deed conveying real estate that she owned prior to her marriage to she and Mr. Perkins as tenants by the entirety. No probate estate was opened for Mrs. Perkins.

Appellants filed a two-count petition in the Circuit Court of Shannon County against Mr. Perkins seeking to have the conveyance from Mrs. Perkins set aside on the theory that it was fraudulently made for the purpose of defeating their rights as creditors, or it was ineffective because it was an invalid testamentary disposition. The trial court sustained Mr. Perkins's motion to dismiss. In doing so, the court referred to Sections 473.370 and 473.444, RSMo 1994. ¹ After being permitted to do so, Appellants filed an amended petition in which they realleged the original two counts and added a third count for damages on a theory of civil conspiracy. Mr. Perkins again filed a motion to dismiss noting that the first two counts were essentially the same as those dismissed by the trial court earlier, and the trial court entered a judgment again dismissing those two counts. In doing so, the court found, pursuant to Rule 74.01(b), ² that there was no just reason for delay, and designated the judgment as final for purposes of appeal. Appellants appeal that judgment in Case No. 22521.

Appellants also caused the Circuit Court of Oregon County to serve Mr. Perkins with an order to show cause why the judgment against his late wife should not be revived. The parties stipulated that Mrs. Perkins had no heirs other than Mr. Perkins, her surviving spouse. The court denied Appellants' motion to revive the judgment. Appellants appeal that judgment of denial in Case No. 22575.

Appellants' first point on appeal is that the Shannon County Circuit Court erred in dismissing the first two counts of their amended petition. They argue that because the real estate became the property of Mr. Perkins upon his wife's death, and she had no estate to be probated, the probate court had no jurisdiction over the real estate and their only remedy was "by a suit in equity to enforce the lien upon the real estate as they [had] no remedy at law."

Condensed, Count I of the amended petition alleged the existence of the judgment; the quit claim deed conveying the property from Mrs. Perkins to she and Mr. Perkins as tenants by the entirety; that the quit claim deed "was made for the purpose of defrauding [Appellants] as creditors of [Mrs. Perkins]"; that no probate estate was opened for Mrs. Perkins following her death; that because more than one year had elapsed since Mrs. Perkins's death and any estate she might have had could no longer be admitted to probate, Appellants were without an adequate remedy at law by which to enforce their judgment against the property or assets owned by Mrs. Perkins at the time of her death. Appellants prayed for a judgment setting the quit claim deed aside and ordering Mr. Perkins to pay the outstanding judgments or, in the alternative, to order the property sold.

Appellants alleged in Count II that Mrs. Perkins intended to make a gift of the real estate by executing the quit claim deed because it was without consideration; that at the time of the deed she was in poor health and made it in contemplation of death; that the deed was ineffectual as a gift in contemplation of death because she did not part with possession, dominion or control of the property; and that the deed was ineffectual as a testamentary disposition because it was not executed with the requirements of a will. Count II prayed for the same relief as Count I.

The trial court sustained the motion to dismiss Counts I and II of the amended petition for the same reasons that it sustained the earlier motion attacking Counts I and II of the original petition. It concluded that any claim Appellants had against Mrs. Perkins had to be satisfied through her probate estate and, because no probate estate was opened and the time had expired within which to do so, setting the quit claim deed aside would not create any further available remedy.

Section 473.020, RSMo Cum.Supp.1996, provides that if no application for letters is filed by a person entitled thereto within twenty days after the death, "any interested person" may apply for letters. Pursuant to Section 472.010, RSMo 1994, a "creditor" is an interested person. Appellants, therefore, could have opened a probate estate for Mrs. Perkins when other authorized persons failed to do so. A petition for the issuance of letters, however, must be filed within one year after the date of death. Section 473.020.2. Section 473.444 provides that any claims against an estate of a deceased person are unenforceable and forever barred against the estate one year following the death.

A claim against an estate based on a judgment may be established by filing a copy of the judgment with the probate court, pursuant to Section 473.370. Matter of Wisely, 763 S.W.2d 691, 693 (Mo.App. E.D.1988). The requirement of the nonclaims statute, Section 473.360, RSMo 1994, that a claim be filed within six months after the first published notice of letters applies to claims based on a judgment entered before the decedent's death. Id. While a judgment survives the judgment debtor's death, satisfaction of that judgment from assets of the estate is controlled by the nonclaims statute. Id. Failure to timely file a judgment claim results in the claim being barred. Hatfield v. McCluney, 893 S.W.2d 822, 825 (Mo. banc 1995).

Appellants argue, however, that since Mrs. Perkins had no assets in her name at the time of her death, and no probate estate was opened for her, they are entitled to pursue a suit in equity to set aside the conveyance on the grounds alleged in their amended petition and to thereafter enforce their judgment against the real estate. They rely on Grace v. Lee, 227 Mo.App. 766, 57 S.W.2d 1095, 1096 (1933), for the proposition that the "administrator" of an estate may not question a conveyance of real estate during the decedent's lifetime, and the probate division of the circuit court has no jurisdiction over such real estate. That case also contains the following statement: "The estate being insolvent it was impossible to collect the judgment through administration and it was, therefore, held that plaintiff had no remedy at law and could only enforce the lien upon the land in the hand of a third person by a suit in equity." Id. at 1096-97. As pointed out by Mr. Perkins, however, that language is dicta in that the court proceeded to acknowledge that those were not the circumstances in that case. Id.

Appellants also direct our attention to Salia v. Pillman, 49 S.W.2d 215 (Mo.App.St.L.1932), merely saying that it "is similar in a number of respects to the case at bar" without explaining how. As pointed out by the trial court, however, Salia involved different facts than the instant case because there the claimant participated in a conventional probate and claim process. In other words, in Salia the real estate in question had been an asset of a probate estate and had been sold, albeit fraudulently, pursuant to an order by the probate court.

Appellants argue, in essence, that opening an estate for Mrs. Perkins and filing a copy of the judgment would have been fruitless because there would have been no assets in the estate. As noted above, Appellants could have required the opening of a probate...