CYNTHIA HARRIS v. ANNA MAE EDGAR, Defendants-Respondents

CYNTHIA HARRIS, )
)
Plaintiff-Appellant, )
)
v. ) No. SD35905
)
ANNA MAE EDGAR, et al., ) Filed: July 19, 2019
)
Defendants-Respondents. )
APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY
Honorable John D. Beger
AFFIRMED
Cynthia Harris (“Appellant”) filed this civil action (“the civil case”) against
Respondents in the Circuit Court of Phelps County (“the circuit court”). The petition
alleged that Appellant’s deceased husband, Melvin Harris (“Decedent”), had conveyed
via a beneficiary deed two parcels of land to Respondents in fraud of Appellant’s marital
rights. Respondents are heirs to Decedent’s estate, which is being administered (“the
probate proceeding”) in the Probate Division of the Circuit Court of Phelps County (“the
probate division”).
In three points relied on, Appellant appeals the circuit court’s judgment
dismissing the civil case. Because the circuit court did not err in dismissing the case
without prejudice based upon the doctrine of abatement, we affirm.
1
Background
The Probate Proceeding
Decedent died on March 21, 2015.1 No application for letters testamentary or
administration were filed within twenty days of his death, but on December 23, 2015,
Anna Mae Edgar, Decedent’s sister (“Sister”), filed an affidavit in the probate division
that alleged the appropriate criteria for opening a small-estate proceeding under section
473.097.2 Sister also filed Decedent’s last will and codicil.
On February 5, 2016, Appellant filed in the probate proceeding a “Motion to
Convert to Full Estate and Require Supervised Administration of Decedent’s Estate”
(“Motion to Convert”). The Motion to Convert asked the probate division to “open a full
estate” and appoint an administrator. Appellant also filed an election of surviving spouse
claim, a homestead allowance claim, and a claim for an exempt property allowance.
The probate division denied Appellant’s Motion to Convert, a decision we
reversed in Estate of Harris, 529 S.W.3d at 34. In reversing that decision, this court
remanded the case with directions that the probate division open Decedent’s supervised
estate and appoint an administrator. Id. at 35.
On remand, the probate division entered an order: (1) granting Appellant’s
Motion to Convert, which required full administration of Decedent’s estate as Appellant
had requested and as required by this court’s mandate; and (2) naming Sister to serve as
personal representative. The order also noted that if Sister made timely application for
1
Our recitation of actions taken in the probate proceeding is taken from our opinion in Estate of Harris,
529 S.W.3d 31 (Mo. App. S.D. 2017). See Underwood v. Kahala, LLC, 554 S.W.3d 485, 496 (Mo. App.
S.D. 2018) (“A court may take judicial notice of its own records in prior proceedings that are between the
same parties and are concerned with the same basic facts involving the same general claims for relief[.]”
(quoting In Interest of A.C.G., 499 S.W.3d 340, 346 (Mo. App. W.D. 2016)). Appellant also asked us in
her brief to take judicial notice of the record on appeal in the probate proceeding.
2
All statutory references are to RSMo 2016. All Rule references are to Missouri Court Rules (2019).
2
letters of administration, “[a]ny such application shall be filed as a new proceeding in this
[c]ourt and shall be accompanied by any applicable supporting documents and the
appropriate filing fee.”
Sister then timely filed her request for letters of administration in the probate
division, and the proceeding was assigned case no. 17PH-PR00418. The probate division
appointed Sister to serve as the personal representative of Decedent’s estate and began
presiding over a full administration of that estate.
The Civil Case
Meanwhile, on July 8, 2016, Appellant filed a petition in the circuit court titled
“PETITION TO SET ASIDE TRANSFER OF REAL PROPERTY AND
DECLARATORY JUDGMENT[.]” The petition named as Respondents most of the
heirs named in the ongoing probate proceeding. The petition alleged that Decedent had
conveyed two parcels of realty, worth nearly $900,000, in fraud of Appellant’s marital
rights. The property at issue had been transferred upon Decedent’s death to Decedent’s
trust via a beneficiary deed, and those parcels of real property are included at this point as
a part of Decedent’s estate in the probate proceeding. The petition also alleged that Sister
was the recipient of the fraudulent transfers and that other Respondents/heirs may also
have an interest in the fraudulently-conveyed property.
On December 27, 2018, Respondents filed “[RESPONDENT]S’ MOTION TO
DISMISS” Appellant’s petition in the circuit court (“Motion to Dismiss”). As their basis
for dismissal, Respondents alleged that the property at issue was “part of the estate
pending in the [probate division,]” and because the probate division already had
“competent jurisdiction” over Decedent’s estate, that jurisdiction continued exclusively
3
with the probate division until a final distribution of Decedent’s estate took place. The
circuit court agreed, granted the Motion to Dismiss, and entered the judgment Appellant
now appeals.
As of the date of this opinion, Appellant’s appeal of the probate proceeding
remains pending and there has been no final settlement and distribution of Decedent’s
estate.3
Analysis
Point 1
Appellant’s first point on appeal claims the trial court erred in granting the
Motion to Dismiss because “Respondents[‘] invocation of their pending action/competent
jurisdiction defense was untimely – in fact, they waived it – in that Respondents failed to
raise the defense in a timely answer or motion to dismiss the amended petition (or even in
a timely answer or motion to dismiss the original petition).” We disagree.
On review of a motion to dismiss for failure to state a cause of
action this Court assumes that all the averments in the plaintiff’s petition
are true, and liberally grants to plaintiff all reasonable inferences
therefrom. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo.
banc 1993). We do not weigh any facts alleged as to whether they are
credible or persuasive. Id.
Meyer v. Meyer, 21 S.W.3d 886, 889 (Mo. App. E.D. 2000).
Plaintiff filed her petition in the circuit court on July 18, 2016, followed by an
amended petition on January 31, 2018. In December 2018, Respondents filed the Motion
to Dismiss, which claimed that Decedent’s property – the subject matter of Appellant’s
amended petition in the circuit court – had been fraudulently transferred to Decedent’s
3
The distribution of Decedent’s estate (via the probate proceeding) is the subject of a separate appeal
pending before this court in Cynthia C. Harris v. Anna Mae Edgar, et al., case nos. SD35971 and
SD35908 (consolidated for purposes of appeal).
4
trust, thereby making the deed invalid and the property a part of Decedent’s estate
currently pending in the probate proceeding.4 Respondents asserted that, “until the final
distribution of the estate has been completed, the probate [division] retains proper
jurisdiction of the entire estate, including the property which is the subject matter in this
case.” Appellant opposed the Motion to Dismiss on several grounds, the one at issue in
this point being that it was untimely filed. In granting the Motion to Dismiss, the circuit
court noted as follows:
Although [the Motion to Dismiss] may not be in technically correct
form, the court determines its wording is effective to raise this court’s
jurisdiction and the doctrine of abatement. In re Estate of Harris, 529
S.W.3[]d 31, 34 ([Mo. App.] S.D. 2017).
It is clear the court has concurrent jurisdiction over the issues in
this case but that jurisdiction is subject to the Doctrine of Abatement.
“Abatement holds that where a claim involves the same subject matter and
parties as a previously filed action so that the [same] facts and issues are
presented, resolution should occur through the prior action and the second
suit should be dismissed.” Meyer v. Meyer, 21 S.W.3d 886, 889-[]90
([Mo. App.] E.D. 2000).
The circuit court went on to state that, “[w]hile this court has concurrent
jurisdiction, ‘once competent jurisdiction is obtained by a probate [division] over an
estate, it continues exclusively in that [division] as to all matters pertaining directly to the
settlement of the estate until final distribution and prior to such distribution no other
court, not even a court of concurrent jurisdiction can interfere with its actions.’ Meyer v.
Meyer, supra at 890.” The circuit court therefore granted the Motion to Dismiss “with
leave [for Appellant] to pursue her claim in the probate estate.”
4
In her “OBJECTIONS TO PETITION FOR APPROVAL OF STATEMENT OF ACCOUNT AND
ORDER OF DISTRIBUTION, FINAL STATEMENT OF ACCOUNT AND SCHEDULE OF
PROPOSED DISTRIBUTION[,]” Appellant claimed that the property transferred to Decedent’s trust via
beneficiary deeds was transferred in derogation of Appellant’s marital rights and, pursuant to section
474.150, the beneficiary deeds constituted a gift that, according to that statute, “may be recovered from the
donee and persons taking from the decedent without adequate consideration and applied to the payment of
the spouse’s share, as in case of his or her election to take against the will.” Section 474.150.1.
5
The circuit court properly treated the Motion to Dismiss as stating conditions
invoking the doctrine of abatement. See U.S. Bank, N.A. v. Coverdell, 483 S.W.3d 390,
403 (Mo. App. S.D. 2015) (internal citation omitted) (construing two “dismissal motions”
as motions for abatement and noting that it was not necessary for the motions to cite Rule
55.27(a)(9) in order to present the abatement issue to the court); see also Skaggs
Chiropractic, L.L.C. v. Ford, 564 S.W.3d 633, 640-41 (Mo. App. S.D. 2018). More
importantly, because the doctrine of abatement “operates to forestall the possibility of
inconsistent judgments on the same claim[,] (internal citation omitted) [a] party has no
ability to ‘waive’ this court’s authority to address its own prudential concern about the
possibility of inconsistent judgments.” Skaggs, 564 S.W.3d at 641 (citing In re KCP &
L Greater Mo. Ops. Co., 408 S.W.3d 175, 188 n.17 (Mo. App. W.D. 2013)). See also
Kelly v. Kelly, 245 S.W.3d 308, 314 (Mo. App. W.D. 2008) (suggesting that courts must
address abatement issues sua sponte).
Point 1 is denied.
Point 2
Point 2 claims the trial court erred in granting Respondent’s Motion to Dismiss
“because Respondents[‘] pending action/competent jurisdiction affirmative defense was
meritless[.]” Appellant supplies two reasons why said defense was meritless. We reject
them in turn, based upon the following principles of law.
“Abatement, also known as the ‘pending action doctrine,’ holds
that where a claim involves the same subject matter and parties as a
previously-filed action so that the same facts and issues are presented,
resolution should occur through the prior action and the second suit should
be dismissed.”[5] Estate of Holtmeyer v. Piontek, 913 S.W.2d 352, 357
5
Although dismissal is what occurred here, another option is to stay the matter pending the outcome of the
prior case. Sherman v. Missouri Prof’ls Mut. – Physicians Prof’l Indem. Ass’n (MPM – PPIA), 516
S.W.3d 867, 869-70 (Mo. App. W.D. 2017).
6
(Mo.App. E.D.1996), citing State ex rel. J.E. Dunn v. Schoenlaub, 668
S.W.2d 72, 74–75 (Mo. banc 1984). The court in which the claim is first
filed acquires exclusive jurisdiction over the matter. Bellon Wrecking &
Salvage Co. v. David Orf, Inc., 983 S.W.2d 541, 548 (Mo.App. E.D.1998).
Though abatement generally does not apply where the parties’ alignment
in the original suit is reversed in the subsequent action, it is appropriate if
the second cause of action is essentially identical to the first action filed.
Id.
When deciding whether to grant a motion to dismiss on grounds of
abatement, a trial court may look beyond the plaintiff’s petition to the
facts alleged in the movant’s motion and supporting evidence attached
thereto. Estate of Holtmeyer v. Piontek, 913 S.W.2d 352, 357 (Mo.App.
E.D.1996). In order for the abatement doctrine to apply, the object,
purpose and principles of law raised in the two actions must be the same.
Estate of Holtmeyer v. Piontek, 913 S.W.2d at 357.
Meyer, 21 S.W.3d at 889–90.
Appellant first claims that her petition in the civil case was filed before the
probate proceeding began, such that there was no other “action pending between the same
parties for the same cause in this state[.]” We disagree.
Under Rule 55.27(a)(9), a proper defense to an action exists if “there is another
action pending between the same parties for the same cause in this state[.]” The circuit
court rightly addressed Respondents’ timing argument as follows:
[Appellant], in her Motion for Summary Judgment,[6] says this
action was filed before the probate case #17PH-PR00435. That is not
entirely accurate. [Decedent] died March 21, 2015. [Sister] filed an
Affidavit for Administration of “a small estate” on Dec. 23, 2015.
[Appellant] herein filed a “Motion To Convert to Full Estate and Require
Supervised Administration of Decedent’s Estate.”
That motion was denied by the probate [division], a decision that
was reversed by the Court of Appeals on appeal of [Appellant] herein. In
re Estate of Harris, supra. Upon remand, and converted to a case of
supervised estate administration, the case was assigned case number
17PH-PR00418. Previously it had been #15PH-PR0435.
6
Appellant had filed a Motion for Summary Judgment in the circuit court prior to Respondents’ filing their
Motion to Dismiss. Appellant’s Motion for Summary Judgment is not at issue in this appeal.
7
That analysis is supported by the record. In Harris, our mandate directed that
“[t]he probate division’s judgment [(denying Appellant’s Motion to Convert)] is reversed
and the cause remanded for proceedings consistent with this opinion.” 529 S.W.3d at 36.
Upon remand, the probate division entered an order consistent with this mandate that
directed Sister to file her application for letters of administration in what would then be
given a new case number. When Sister did as ordered, the probate division assigned the
probate proceeding case number 17PH-PR00418. Despite the new case number, the
action was a continuation of the same matter involving the same parties and the same
disputed issues. Thus, the probate proceeding – filed in 2015 – preceded Appellant’s
initiation of the civil case.
Appellant also argues that “dismissing and then refiling the present action . . . is
pointless and perverse” as it will require Appellant to incur additional legal fees, delay
adjudication of the merits of her cause of action, waste judicial resources, and frustrate
the purposes of the abatement doctrine.
First, no refiling will be required as Appellant’s claim is still pending in the
probate proceeding. More importantly, the abatement doctrine “operates to forestall the
possibility of inconsistent judgments on the same claim[,]” Skaggs, 564 S.W.3d at 641,
which the trial court rightly recognized as a legitimate concern in this case.
This concern is even more pressing in that the probate division recently ruled that
the real property at issue, conveyed via non-probate transfer, was not required to be listed
on the inventory filed in Decedent’s estate. That finding is the subject of Appellant’s
pending appeal in the probate proceeding. Appellant’s argument does not address the
8
real danger of inconsistent judgments regarding the property at issue if the circuit court
were to allow the civil case to continue.
Further, Appellant makes no argument that adequate relief is not available to her
in the probate proceeding. While the probate division has issued its ruling on the issue in
dispute here, that decision is currently under appeal, and no final distribution in
Decedent’s estate has yet occurred. The abatement doctrine makes clear that,
“[o]nce competent jurisdiction is obtained by a probate [division] over an
estate, it continues exclusively in that [division] as to all matters pertaining
directly to the settlement of the estate until the final distribution and prior
to such distribution no other court, not even a court of concurrent
jurisdiction, can interfere with its actions.” Stephens v. Estate of
Campbell, 865 S.W.2d 411, 412 (Mo.App. E.D.1993), citing Black v.
Stevens, 599 S.W.2d 54 (Mo.App.1980). “A circuit court may not intrude
on a probate [division]’s jurisdiction when adequate relief is available in
the probate [division].” Id., citing State ex rel. Standefer v. England, 328
S.W.2d 732, 735 (Mo.App.1959).
Meyer, 21 S.W.3d at 890–91.
Point two is denied.
Point 3
Appellant’s final point claims the trial court abused its discretion by dismissing
the case instead of consolidating the civil case and the probate proceeding “because only
consolidation would further the twin abatement goals of conserving judicial resources
and avoiding inconsistent judgments[.]” Yet again, we disagree.
“The decision to consolidate cases is within the circuit court’s discretion and will
be affirmed unless we find the circuit court abused its discretion.” Fields v. Millsap and
Singer, P.C., 295 S.W.3d 567, 572 (Mo. App. W.D. 2009). The consolidation of civil
actions is governed by Rule 66.01(b), which states:
9
When civil actions involving a common question of law or fact are
pending before the court, it may order a joint hearing or trial of any or all
the matters in issue in the civil actions; it may order all the civil actions
consolidated; and it may make such orders concerning proceedings therein
as may tend to avoid unnecessary costs or delay.
Rule 66.01(b.).
While it may be that the circuit court could have consolidated the two actions, its
denial of Appellant’s request to do so7 was not an abuse of its discretion. For the reasons
already discussed, the circuit court did not err in dismissing the civil case based upon the
doctrine of abatement.
Point 3 is also denied, and the judgment is affirmed.
DON E. BURRELL, J. – OPINION AUTHOR
JEFFREY W. BATES, C.J., - CONCURS
DANIEL E. SCOTT, P.J. – CONCURS
7
Appellant did not actually file a motion to consolidate the cases. She merely asserted in her Suggestions
in Opposition to Respondents’ Motion to Dismiss that consolidation was the proper remedy.
10