In re The Estate of Arthur E. Pethan, Mary Lu Brown, Personal Representative of the Estate of Arthur E. Pethan v. David A. Hein
2015 Mo. App. LEXIS 961
| Mo. Ct. App. | 2015Background
- Arthur Pethan died in 2009; his children Mary Lu Brown (Sister, personal representative) and David Hein (Brother) were heirs. Sister filed a discovery-of-assets petition alleging Brother removed estate property and executed a false bill of sale.
- Sister sought recovery of the Property (tractor, farm equipment, furniture) in Count I and punitive damages in Count II.
- Trial court entered a Sanctions Judgment (Nov. 1, 2013) striking Brother’s answer and ruling for Sister on Count I, ordered delivery of the Property, and reserved damages/punitive damages for later hearing.
- Parties entered a Consent Order (Dec. 2, 2013): Brother agreed to deliver the Property by Feb. 1, 2014 and post a $20,000 bond; Sister agreed to postpone the punitive damages hearing. Brother performed and the Property was later auctioned.
- Sister moved to forfeit the bond and for contempt, alleging Brother intentionally damaged items; the trial court granted those motions (Nov. 20, 2014), ordering $12,500 taken from the bond ($5,000 fine for contempt and $7,500 for diminished value). Brother appealed; Sister later voluntarily dismissed Count II.
Issues
| Issue | Plaintiff's Argument (Brown) | Defendant's Argument (Hein) | Held |
|---|---|---|---|
| 1. Whether the Sanctions Judgment is reviewable | Sanctions judgment was proper; discovery violations justified striking answer and judgment on Count I | Sanctions judgment erroneous for lack of prejudice from discovery violations; appeals seeks reversal | Appeal as to sanctions is moot because Brother voluntarily agreed to and performed under the Consent Order (thus impliedly accepted the Sanctions Judgment), so reversal would have no practical effect |
| 2. Whether the Order granting bond forfeiture and contempt is appealable and merits review (laches defense) | Order properly enforced Consent Order; forfeiture and contempt relief appropriate | Motions were barred by laches; also challenges enforceability/appealability | Appeal dismissed: the order was not denominated a "judgment" as required by Rule 74.01(a) (and probate rules made Rule 74 applicable), so it is not appealable here |
Key Cases Cited
- Ndegwa v. KSSO, LLC, 371 S.W.3d 798 (Mo. banc 2012) (final judgment requirement for appellate review)
- Gibson v. Brewer, 952 S.W.2d 239 (Mo. banc 1997) (definition of final judgment)
- Crest Const. II, Inc. v. Hart, 439 S.W.3d 246 (Mo. App. W.D. 2014) (damages are essential to finality)
- Dotson v. Kander, 435 S.W.3d 643 (Mo. banc 2014) (mootness/justiciability threshold)
- Bailey v. Innovative Mgmt. & Inv., Inc., 890 S.W.2d 648 (Mo. banc 1994) (interlocutory order can become final after voluntary dismissal of remaining claims)
- City of St. Louis v. Hughes, 950 S.W.2d 850 (Mo. banc 1997) (Rule 74.01(a) requires writings denominated "judgment" for appeal)