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Harris v. Edgar

Court of Appeals of Missouri, Southern District, Second Division

July 19, 2019

CYNTHIA HARRIS, Plaintiff-Appellant,
ANNA MAE EDGAR, et al., Defendants-Respondents.


          DON E. BURRELL, JUDGE.

         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.


         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 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 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]


         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 ...

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