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
