9 S.W.3d 760 | Mo. Ct. App. | 2000
These consolidated appeals arise from an order entered on January 21, 1999, by the Honorable David Gregory Warren, special judge, (the “Warren Order”), in the Probate Division of the Circuit Court of Maries County (the “probate court”). The Warren Order set aside a “Judgment and Order” previously entered by the Honorable B.B. Turley, also a judge of the probate court, on September 28, 1998, (the “Turley Judgment”).
In the probate court proceedings underlying both of the appeals before us, Michelle L. Helton, personal representative of the Estate of Trudy L. Miller, deceased, (“Appellant”) filed a petition for discovery of assets and to set aside a joint survivor-ship deed to a farm, in which Blaine A. Bailey (“Respondent”) was a named joint tenant. In the Turley Judgment, the probate court, inter alia, granted Appellant’s amended petition to discover assets and accordingly set aside, vacated and annulled the joint survivorship deed under consideration. Respondent filed several post-hearing motions to set aside the Turley Judgment. See infra. Judge Warren granted one of Respondent’s post-hearing motions and set aside and voided the Turley Judgment on the basis that Respondent had not been a “Party to the Lawsuit.”
In Appeal No. 22801, Appellant now raises two points of trial court error. In her first point, she contends that the probate court erred in setting aside the Tur-ley Judgment because Respondent was, indeed, a party to the probate proceedings in that he was specifically named in the pleadings at least six times; received notice of the nature and extent of the Appellant’s interest in the property and was given ample opportunity to present his case. In her second point, she contends that the probate court erred in setting aside the Turley Judgment because Respondent had waived any defense of lack of personal jurisdiction by not making a timely motion claiming a lack of personal jurisdiction as provided by Rule 55.27.
In Appeal No. 22828, Respondent also appeals from the Warren Order, positing probate court error in the denial of two of his other post-trial motions that sought to set aside the Turley Judgment. He first complains that the probate court erred as a matter of law in “failing to set aside the [Turley Judgment]” on the basis that under section 473.340.2 and Rules 44.01 and 55.25, he was entitled to a full 30 days to respond to Appellant’s amended petition for discovery of assets/set aside deed.
As a preliminary matter, we observe that Respondent has suggested in the jurisdictional statements of his briefs that this Court may lack jurisdiction to review these appeals because the Warren Order is not denominated a “judgment” as required under Rule 74.01. See City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997); Chambers v. Easter Fence Co., Inc., 943 S.W.2d 863, 865 (Mo.App.1997).
This Court has previously observed that the “requirement of Rule 74.01(a) that a document from which an appeal is taken must be labeled ‘judgment’ does not apply to appeals from probate proceedings.” Estate of Brown, 955 S.W.2d 940, 941 n. 4 (Mo.App.1997)(citing In the Matter of Kemp v. Balboa, 959 S.W.2d 116, 118 (Mo.App.1997)). We conclude that the Warren Order is a final order of the probate court and is appealable to this Court. See § 472.160.1(14); Estate of Brown, 955 S.W.2d 940, 941 (Mo.App.1997).
Before reviewing Appellant’s first point in Appeal No. 22801, we must first examine the procedural history underlying these appeals. The record shows that on June 30, 1998, Appellant filed her initial petition to discover assets and to set aside a general warranty deed conveying certain tracts of real properties in Maries County, Missouri, to Trudy L. Miller and Respondent, as joint tenants with rights of surviv-orship. In these same pleadings Appellant also prayed that Respondent be “joined as a party hereto....” We further observe from the record that on this same date Appellant filed a “petition for temporary restraining order and injunction and permanent injunction to prevent waste”(“in-junctive relief’). Thereafter, a summons and copy of the foregoing pleadings was issued by the court on July 8,1998; mailed to special process server, Rufus R. Harmon, for service; and subsequently served upon Respondent on July 15, 1998.
On August 12, 1999, Appellant filed an amended petition for discovery of assets and to set aside a general warranty deed in two counts (“amended petition for discovery of assets”). In this petition, she reiterated her initial petition for discovery of assets; requested the court to set aside the aforementioned deed (Count I); and further requested that the court declare certain personal properties, primarily consisting of quarter horses, to be the property of the Estate of Trudy L. Miller (Count II). Appellant also prayed in each count that Respondent “be joined as a party hereto.... ” This amended petition for discovery of assets, together with amended pleadings seeking injunctive relief, was
On August 28, 1998, the amended pleadings were again served upon Respondent by a Maries County Deputy Sheriff, shortly before the court conducted a hearing regarding the granting of a temporary restraining order pursuant to the amended petition for injunctive relief. Although Respondent was present during the course of the August 28,1998, hearing, he was not represented by counsel. It is undisputed that the probate court never issued an order formally joining Respondent as a party in the discovery of assets litigation.
During the course of the August 28, 1998, hearing, Respondent acknowledged that he had received service of process on the amended petition for discovery of assets and injunctive relief. Judge Turley announced “what we’re going to indicate on the record is that that (sic) service as being had upon you on the 28 th day of August. Then by operation of the law, you have 30 days to file any response that you wish to file in that.” Respondent stated, “[o]kay.” Judge Turley then informed Respondent that he had an “opportunity now to — to obtain counsel on that.”
On September 28, 1998, the probate court conducted a hearing on the amended petition to discover assets. Respondent appeared pro se but was accompanied by the public defender, who was representing him in the criminal proceedings pending against him.
I.
Returning to Appellant’s first point, we first note that “[t]rial courts are vested with broad discretion when acting on motions to vacate judgments.” Branson Hills Assoc. v. Millington, 926 S.W.2d 178, 180 (Mo.App.1996). “Appellate courts will not interfere with those actions unless the record on appeal convincingly demonstrates a trial court’s abuse of discretion.” Id.
Secondly, we observe that Judge Warren set aside the Turley Judgment on the basis that Respondent had not been formally named as a “Party to the Lawsuit.” In the Warren Order, Judge Warren cited to State ex rel. Morris v. McDonald, 817 S.W.2d 923 (Mo.App.1991), as authority for his determination. However, this foregoing case did not relate to probate proceedings. Instead, it was a civil action involving third-party practice requirements under Rule 52.11, arising from a cross claim against third-party defendants, where the third-party plaintiff failed
Although not specifically named in the caption of the amended petition for discovery of assets, Respondent was, nevertheless, named at least a half dozen times in the body of the pleadings. “There is nothing in the discovery of assets statute that requires a specific caption in order to state a cause of action under § 473.340.... ” In re Estate of Foster, 878 S.W.2d at 898. Furthermore, the “character in which one is made a party to a suit, and the capacity in which a party sues or is sued, must be determined from the allegations of the pleadings, and not from its title alone.” In re Estate of Dawes, 891 S.W.2d 510, 517 (Mo.App.1994).
II.
We now turn our attention to Appeal No. 22828. In Point One, Respondent complains that he was not given 30 days to respond to the amended petition for discovery of assets which was served on him on August 28, 1998, and that Judge Warren erred in denying Respondent’s post-trial motion to set aside the Turley Judgment for that reason. See Rule 55.25. In
As to Point One, we initially observe that Respondent was served with the first amended petition for discovery of assets on August 19,1998, more than 30 days before the September 28, 1998 hearing, thereby satisfying the 30 day time requirement imposed under Rule 55.25. We attach no significance to the fact that during the August 28, 1998, hearing Judge Turley gratuitously informed Respondent that he had 30 days to file his answer. Given the factual scenario as revealed in the record, it is reasonable to conclude that with the limited information available to him Judge Turley was attempting to explain in lay language a procedural process to a person whom the judge considered to be a pro se party. Furthermore, it is also reasonable to conclude that Judge Turley did not know that Respondent had been previously served with the same amended petition for discovery of assets on August 19, 1998. Had he known of this prior service on Respondent he would not have made his sua sponte remarks.
Turning to Respondent’s second point, Respondent contends that the Warren Court erred in not setting aside the Turley Judgment because he had met all of the conditions required preliminary to the setting aside of a default judgment as set out in Rule 74.05. We first observe
There has been no showing of abuse of discretion by the Warren Court in denying Respondent’s Rule 74.05 motion. See In re Marriage of Clark, 813 S.W.2d 123, 125 (Mo.App.1991). Point denied.
In Appeal No. 22801, that portion of the Warren Order setting aside the Turley Judgment is reversed. The portions of the Warren Order appealed from by Respondent in Appeal No. 22828, are affirmed.
. Judge Turley had earlier recused himself on October 13, 1998.
. All rule references are to Missouri Court Rules (1998), unless otherwise designated. All statutory references are to RSMo 1994, unless otherwise set out.
.In both his points, Respondent refers to the Turley Judgment as a ''default” judgment, a misnomer that will be addressed infra.
. Respondent has also stated that "[s]hould this court find that the Order appealed from is an appealable judgment then the Respondent would submit that the jurisdiction of this court is proper.”
. An "affidavit of service” by Rufus R. Harmon was filed with the court on August 31, 1998, showing service on Respondent on the "15 th of July, 1998.” In a "notice” filed with the probate court, Respondent set out that the summons and petition were delivered to Fulton State Hospital at Fulton, Missouri, “on or about July 15, 1998....” Respondent was in confinement at that institution arising from first degree murder charges filed against him in connection with the death of Trudy L. Miller. In the "notice,” Respondent informed the court and all parties that “he does not have the mental capacity to receive service, sue or be sued.”
. As best we can glean from our review of the transcript of the August 28, 1998, proceedings, the probate court does not indicate that it was aware of the August 19, 1998, service of the amended pleadings on Respondent. However, the probate court made the following remarks during the course of the September 28, 1998, hearing:
[Probate Court]: It's my recollection that on August 28 th when we were here, that we provided and had [Respondent] served with a new amended petition; is that not correct?
[Appellant’s attorney]: That is correct, Your Honor.
[Probate Court]: So that we know that he has at least one service, and possibly two services on that.
. The public defender made it clear that she did not intend to participate in the hearing but was present only to inform the court that Respondent wished to assert certain state and federal constitutional rights against self-incrimination and other rights accorded him.
. We observe that while Judge Turley made no formal joinder of Respondent in the litigation, he addressed Respondent as one who is considered a party to a suit in both the August 28, 1998, hearing and the September 28, 1998, hearing. During the latter hearing Judge Turley determined that he had been served with at least two petitions for discovery of assets; asked Respondent if he were represented by counsel; determined that Respondent appeared pro se; allowed him to participate in the hearings; and gave Respondent opportunity to question all of the witnesses, as any party is normally entitled to do.
. Respondent does not argue that Judge Tur-ley's sua sponte remarks were enough to start the clock anew, so to speak. Nor does he cite to any case law supporting such a position.
. It is noteworthy to observe that in St. Louis County v. Police Officers Ass'n, 652 S.W.2d 142 (Mo.App.1983), plaintiff posited trial court error because defendants failed to answer a count. The Eastern District of this Court observed that "[a]lthough the filing of an answer is mandatory, the opposing party waives the requirement unless it requests enforcement by timely and proper action.” Id. at 145. In Mahurin v. St. Luke's Hosp., 809 S.W.2d 418 (Mo.App.1991), the Western District of this Court observed that "[e]ven when an answer is required but not filed, if a cause is tried as if an answer had been filed, on appeal the matter is treated as if an answer traversing the allegations of the petition was filed.” Id. at 421 "This is not to say that the filing of an answer is not required; it is to say that enforcement of the requirement of an answer is waived unless the opposing party invokes its enforcement by timely and proper action.” Id.; accord Estate of Schubert v. Holleman, 683 S.W.2d 324, 325-26 (Mo.App.1984); Great Western Trading Co. v. Mercantile Trust Co. Nat. Assoc., 661 S.W.2d 40, 44 (Mo.App.1983).