In re The Estate of Arthur E. Pethan, Mary Lu Brown, Personal Representative of the Estate of Arthur E. Pethan v. David A. Hein

In the
Missouri Court of Appeals
Western District
IN RE THE ESTATE OF ARTHUR E. )
PETHAN, DECEASED; )
) WD78157
MARY LU BROWN, PERSONAL )
REPRESENTATIVE OF THE ) OPINION FILED:
ESTATE OF ARTHUR E. PETHAN, ) September 22, 2015
DECEASED, )
)
Respondent, )
)
v. )
)
DAVID A. HEIN, )
)
Appellant. )
Appeal from the Circuit Court of Cooper County, Missouri
The Honorable Keith M. Bail, Judge
Before Division One: Cynthia L. Martin, Presiding Judge, Joseph M. Ellis, Judge and
James E. Welsh, Judge
David A. Hein ("Brother") appeals a judgment that sanctioned him for discovery
violations by striking his answer and affirmative defenses and that entered judgment in
favor of Mary Lu Brown ("Sister") on one of two counts in Sister's petition seeking the
discovery of assets in a probate proceeding. Brother also appeals from an order granting
Sister's motions for bond forfeiture and civil contempt after Brother violated the terms of
a consent order.
Because Brother's appeal from the sanctions judgment is moot, and because
Brother has appealed an order that is not designated as a "judgment," we dismiss
Brother's appeal.
Factual and Procedural History
Arthur Pethan ("Pethan") died in November 2009. Brother and Sister were
Pethan's heirs. Pethan's estate was opened on May 21, 2010. Sister was appointed as the
personal representative for Pethan's estate on November 1, 2011.
On November 17, 2011, Sister filed a discovery of assets petition against Brother.
Sister alleged in Count I that Brother had removed a tractor, farm equipment, and various
furniture items ("Property") from Pethan's estate after Pethan's death and had executed a
false bill of sale for the Property. Sister requested an award of punitive damages in
Count II of the petition.
Sister filed a motion for sanctions against Brother on September 3, 2013, alleging
discovery violations. Sister requested that Brother's answer be stricken, the entry of
judgment in her favor on her petition, and an evidentiary hearing to calculate punitive
damages and attorney's fees.
Following a hearing, the trial court entered its "Order Relating to Motion for
Sanctions and Judgment" ("Sanctions Judgment") on November 1, 2013. The Sanctions
Judgment sustained Sister's motion for sanctions, struck Brother's answer and affirmative
defenses, and entered judgment "in favor of [Sister] and against [Brother] on Count I of
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[Sister's] Petition for Discovery of Assets." The Sanctions Judgment ordered Brother to
deliver the Property to Sister at the Cooper County Fairgrounds on November 30, 2013.
The Sanctions Judgment scheduled a hearing for December 9, 2013, "to hear additional
evidence as to damages" including "evidence regarding punitive damages . . . if [Brother]
fails to deliver the [Property]" to Sister. The Sanctions Judgment thus resolved Count I
of Sister's petition but reserved determination of Count II of Sister's petition.
Following entry of the Sanctions Judgment, Brother filed pleadings seeking to stay
his obligation to deliver the Property, to continue the damages hearing, and to set aside
the Sanctions Judgment.
On December 2, 2013, the trial entered a "Consent Order." The Consent Order
directed that "[u]pon the agreement of the parties" Brother would deliver the Property to
Sister by February 1, 2014; Brother would post a $20,000 bond by December 13, 2013,1
which would be forfeited and paid to Sister if Brother failed to deliver the Property; and
that the hearing on Sister's punitive damages claim would be continued until sometime
after February 1, 2014. The Consent Order also reflected Brother's agreement to permit
Sister to prove up her attorney's fees claim by the submission of an affidavit.
Brother delivered some of the Property to the Cooper County Fairgrounds on
January 18, 2014, and delivered the balance of the Property by February 1, 2014. Sister
thereafter secured the trial court's authority to sell the Property at auction.
1
On December 13, 2013, the trial court entered a "Stipulation and Order" reiterating Brother's and Sister's
agreements which led to entry of the Consent Order and which reflected the parties' further agreement to permit
Brother until December 16, 2013, to post the agreed upon $20,000 bond.
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After the auction, Sister filed a motion for bond forfeiture and a motion for
contempt against Brother. Sister alleged that Brother had intentionally sabotaged some
of the Property that was delivered, causing it to decline in value.
Following a hearing, the trial court entered an order on November 20, 2014,
granting Sister's motions for bond forfeiture and contempt ("Order"). The Order noted
the parties' agreements giving rise to the Consent Order. The trial court found that
Brother had intentionally and willfully violated the trial court's previous orders and that
Brother's conduct had resulted in a decrease in the fair market value of the Property by
$7,500. The Order found Brother in contempt and fined him $5,000 "in order to
compensate the Estate of Arthur Pethan for its actual damages and attorney's fees the
estate has incurred in connection with [Sister's] Motions and to deter [Brother] from such
conduct in the future." The Order directed that the amount of $12,500 "shall be paid
from the $20,000 bond [Brother] previously posted with the Court," with the $7,500
balance of the bond to be refunded to Brother.
On November 26, 2014, Brother appealed. On December 15, 2014, Sister
voluntarily dismissed Count II of her petition.
Analysis
Brother asserts two points on appeal. In his first point, Brother claims that the
Sanctions Judgment was entered in error because Sister failed to establish she was
prejudiced by Brother's discovery violations. In his second point, Brother claims that the
Order was entered in error because Sister's motions to forfeit the bond and for contempt
4
were barred by the doctrine of laches. Both points require that we first discern whether
we may entertain Brother's appeal.
"Prior to reaching the merit of the issues in this case, this Court must determine,
sua sponte, if there is a final judgment." Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801
(Mo. banc 2012) (citing Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997)). A
final judgment is a prerequisite to appellate review." Id. If the circuit court's judgment
was not a final judgment, then the appeal must be dismissed." Id. "A final judgment
'resolves all issues in a case, leaving nothing for future determination.'" Id. (quoting
Gibson, 952 S.W.2d at 244). "Damages are an essential element of a claim and must be
resolved for a judgment to be final and appealable." Crest Const. II, Inc. v. Hart, 439
S.W.3d 246, 249 (Mo. App. W.D. 2014) (internal quotations omitted). Moreover, "[a]s a
threshold matter, appellate courts must determine if a controversy is moot." Dotson v.
Kander, 435 S.W.3d 643, 644 (Mo. banc 2014) (citing State ex rel. Reed v. Reardon, 41
S.W.3d 470, 473 (Mo. banc 2001)). An appellate court is obligated to examine an appeal
for mootness "either upon motion of a party or acting sua sponte." Missouri Municipal
League v. State, No. SC94493, 2015 WL4627486, at *1 (Mo. banc August 4, 2015).
"Mootness implicates the justiciability of a controversy and is a threshold issue to
appellate review." LeBeau v. Commissioners of Franklin County, 459 S.W.3d 436, 438
(Mo. banc 2015) (citing Reed, 41 S.W.3d at 473). "To exercise appellate jurisdiction,
there must be an actual controversy that is 'susceptible of some relief.'" Dotson, 435
S.W.3d at 644 (quoting Reed, 41 S.W.3d at 473). "When an event occurs which makes a
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court's decision unnecessary or makes granting effectual relief impossible, the case is
moot and should be dismissed." Id.
Point one of Brother's appeal claims error with respect to entry of the Sanctions
Judgment. By its plain terms, the Sanctions Judgment did not resolve all issues, as it
expressly reserved determination of Count II of Sister's petition. The Sanctions Judgment
was not, therefore, a final judgment at the time Brother filed his appeal. Crest Const. II,
Inc., 439 S.W.3d at 249.
We recognize that Sister dismissed Count II of her petition nearly a month after
Brother filed his appeal. And we recognize that there is authority for the proposition that
a party's voluntary dismissal of remaining claims or parties following entry of an
interlocutory judgment can render the interlocutory judgment final for purposes of
appeal. See Bailey v. Innovative Management & Inv., Inc., 890 S.W.2d 648, 649-50 (Mo.
banc 1994) (finding that an interlocutory summary judgment in favor of one defendant
became final and appealable when the plaintiff later voluntarily dismissed the remaining
defendant); Magee v. Blue Ridge Professional Bldg. Co., Inc., 821 S.W.2d 839, 842 (Mo.
banc 1991) (finding that an interlocutory order dismissing claims against one defendant
became final and appealable when the plaintiff later voluntarily dismissed claims against
all remaining defendants).
Assuming, arguendo, that Sister's post-appeal voluntary dismissal of Count II of
her petition converted the interlocutory Sanctions Judgment into a final judgment, and
6
assuming that Rule 81.05(b)2 would thus apply to require us to consider Brother's
premature appeal as having been filed immediately after the Sanctions Judgment became
final, Brother's claim of error regarding the Sanctions Judgment must nonetheless be
dismissed. Brother's voluntary agreement to, and performance of, the terms of the
Consent Order constituted voluntary performance of the Sanction's Judgment, rendering
Brother's claim of error relating to the Sanctions Judgment moot.
The Sanctions Judgment ordered Brother to deliver the Property that was the
subject of the discovery of assets claim to a particular location by a particular date. The
Sanctions Judgment ordered a hearing on Sister's remaining claim for punitive damages,
and on her claim for an award of attorney's fees. Brother contested the Sanctions
Judgment and filed a motion to set it aside, sought continuances of the damages hearing,
and sought a continuance of the deadline for delivery of the Property.
Thereafter, the trial court entered the Consent Order based on the agreement of the
parties. Pursuant to the Consent Order, Brother voluntarily agreed to deliver the Property
to a specified location by February 1, 2014, and to post a bond to ensure his performance
of this obligation. Sister agreed to defer a hearing on her punitive damage claim until
sometime after the date agreed upon for delivery of the Property. And both parties
agreed that Sister's attorney's fee claim could be ruled by the trial court based on
submitted affidavits. The Consent Order represented "a recital of an agreement," and
"not a judicial determination of rights." Henze v. Schallert, 92 S.W.3d 317, 319 (Mo.
App. E.D. 2002). More to the point, the Consent Order represented Brother's voluntary
2
All citations to the Rules are to Missouri Court Rules Volume I--State (2015).
7
agreement to the manner in which he would perform the obligation to deliver the
Property described in the Sanctions Judgment.
"[A] party may estop himself from taking an appeal by performing acts after the
rendition of the order or judgment which are clearly inconsistent with the right of
appeal." Stevens Family Trust v. Huthsing, 81 S.W.3d 664, 667 (Mo. App. S.D. 2002)
(internal quotations omitted). "The estoppel may consist of any voluntary act which
expressly or impliedly recognizes the validity of the judgment, order or decree." Id.
"Accordingly, it is also generally recognized that when a defendant voluntarily pays a
judgment rendered against him, he may not appeal from that judgment." Id. "When the
judgment has been paid, the issue is settled and the question is moot." Id.
"An involuntary payment, however, does not render an appeal moot." Two
Pershing Square, L.P. v. Boley, 981 S.W.2d 635, 638 (Mo. App. W.D. 1998). "A
payment is considered involuntary when it is made to forestall collection and no
supersedeas bond is posted." Id. "A payment is also considered involuntary when it is
made after execution or writ of garnishment in aid of execution has issued because it is
presumed to have been made as a result of legal coercion." Id. "A payment made to cut
off the accrual of interest on a judgment is also considered involuntary." Id.
Brother's agreement to the terms of the Consent Order, and his delivery of the
Property pursuant to the terms of the Consent Order, were not in response to collection
procedures or to any attempt to enforce the Sanctions Judgment by execution or
garnishment. The Sanctions Judgment did not provide for the accrual of interest,
rendering it unnecessary for Brother to enter into the Consent Order or to deliver the
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Property to cutoff the accrual of interest. Rather, Brother voluntarily agreed to terms by
which he would perform the obligation to deliver the Property described in the Sanctions
Judgment. By agreeing to the terms set forth in the Consent Order, and by proceeding to
perform the terms of the Consent Order, Brother impliedly recognized the validity of the
Sanctions Judgment. Braveheart Real Estate Co. v. Peters, 157 S.W.3d 231, 233-34
(Mo. App. E.D. 2004) (holding that "[i]f the defendant's surrender of . . . property is
voluntary, he or she effectively concedes the correctness of the judgment, thereby
rendering the appeal moot").
In his Reply Brief, Brother nonetheless argues that his delivery of the Property
was involuntary. He claims that he was legally coerced into delivering the Property
because he otherwise would have been found in contempt of court and exposed to
punitive damages.3 We disagree. No contempt proceedings were pending when Brother
agreed to the terms of the Consent Order. In any event, even had they been, a similar
argument was rejected in Peters, when the Eastern District found that the surrender of
real property upon threat of contempt constituted a voluntary act. Peters, 157 S.W.3d at
233-34.
In short, Brother voluntarily agreed to entry of the Consent Order, which included
his agreement to deliver the Property to Sister. Brother thus impliedly recognized the
validity of the Sanctions Judgment. Brother thereafter delivered the Property as he
agreed to do pursuant to the Consent Order. The Property has been sold at auction. The
3
Brother also argues that he had no choice but to comply with the Sanctions Judgment because it was not a
final judgment and could not be appealed given Sister's outstanding punitive damages claim. This argument in
Brother's Reply Brief is in stark and irreconcilable conflict with the jurisdictional statement in Brother's principle
Brief where Brother argues that the Sanctions Judgment is a final, appealable judgment.
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relief awarded by the Sanctions Judgment has been voluntarily performed. Any decision
from this court resolving Brother's current complaint that the Sanctions Judgment was
improvidently entered would have no practical effect, rendering Brother's first point on
appeal moot.4
Point one is dismissed as moot.
Point two of Brother's appeal claims error in the entry of an Order granting Sister's
motions for bond forfeiture and contempt because both motions should have been barred
by the doctrine of laches.
Rule 74.01(a) states that a "[j]udgment . . . includes a decree and any order from
which an appeal lies" and that "[a] judgment is entered when a writing signed by the
judge and denominated 'judgment' or 'decree' is filed." "Thus, a written judgment must
be signed by the judge and must be designated a 'judgment.'" City of St. Louis v. Hughes,
950 S.W.2d 850, 853 (Mo. banc 1997). "The designation of 'judgment' may occur at the
top of the writing, within the body of the writing, or in a docket-sheet entry, but it must
be clear from the writing that the trial court is calling the document or docket-sheet entry
a judgment." Id. Generally, an appeal from an order that is not designated as a
"judgment" must be dismissed. See Gateway Directory Pub. Group, Inc. v. Fischer, 84
S.W.3d 496, 497 (Mo. App. E.D. 2002) (dismissing an appeal from an order that was not
designated as a "judgment.")
4
There are recognized exceptions to the mootness doctrine where a case becomes moot after it is argued
and submitted or where a case presents an unsettled issue of public interest that is likely to recur and to evade
review. Floyd v. Department of Mental Health, 452 S.W.3d 154, 158 (Mo. App. W.D. 2014). Neither exception
applies here.
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It is true that pursuant to Rule 41.01(b), "[t]he provisions of Rule 74 are not
applicable to probate proceedings . . . unless the judge of the probate division orders that
it shall be applicable in a particular matter . . . ." In Estate of Downs, 400 S.W.3d 360,
361 (Mo. App. W.D. 2013) (citing Rule 41.01(b)); Burgess, Care & Treatment of v.
State, 34 S.W.3d 430, 431 n. 2 (Mo. App. S.D. 2000). Here, the trial court entered an
order on February 24, 2011, directing that Rules 41 through 101 were applicable to the
proceedings. It was thus essential that the Order comply with Rule 74.01(a) as a
condition to Brother's right to appeal the Order.5
Plainly, the Order is not designated a "judgment," and there is no indication within
the body of the Order that the trial court considered the Order to be a judgment. The
Order is not appealable.6
Point two is dismissed.
5
Even where this not the case, Brother has not explained how or whether the Order falls within one of the
categories of immediately appealable probate orders enumerated by section 472.160.1(1)-(14).
6
The Order granted two motions--Sister's motion for bond forfeiture and Sister's motion for an order
holding Brother in contempt. Contempt orders are not exempt from Rule 74.01(a)'s "denomination as a judgment"
requirement. However, civil contempt orders, even if denominated as a "judgment," are not final for purposes of
appeal until they are enforced, either through the imposition of fines or imprisonment. In re Marriage of Crow and
Gilmore, 103 S.W.3d 778, 781 (Mo. banc 2003). Here, the record does not reveal whether the contempt portion of
the Order (which ordered the payment of a $5,000 fine to Sister from the bond Brother posted) has been enforced.
More to the point, as Brother notes in his Brief, the $5,000 fine imposed for contempt was not "for the
purpose of coercing compliance with relief that had already been granted . . . but [was] instead awarded to punish
[Brother] for failing to comply with the court's order." [Appellant's Brief, p. 19] This calls into question whether
the Order found Brother to be in civil or criminal contempt. "Civil contempt is intended to benefit a party for whom
an order, judgment, or decree was entered. Its purpose is to coerce compliance with the relief granted." State ex rel.
Chassaing v. Mummert, 887 S.W.2d 573, 578 (Mo. banc 1994). In contrast, criminal contempt is authorized as a
part of a court's inherent constitutional power and by section 476.110 to punish a person's refusal to abide by a
court's authority as to protect the dignity of the judicial system. See Smith v. Pace, 313 S.W.3d 124, 129-30 (Mo.
banc 2010); Teefey v. Teefey, 533 S.W.2d 563, 565 (Mo. banc 1976). A criminal contemnor has no right of appeal.
Smith, 313 S.W.3d at 129.
We express no opinion as to whether the contempt aspect of the Order can be appealed, even assuming the
Order is hereinafter designated as a "judgment."
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Conclusion
Brother's appeal is dismissed.
__________________________________
Cynthia L. Martin, Judge
All concur.
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