In re The Estate of Arthur E. Pethan, Mary Lu Brown, Personal Representative of the Estate of Arthur E. Pethan v. David A. Hein

In the

Missouri Court of Appeals

Western District

IN RE THE ESTATE OF ARTHUR E. )

PETHAN, DECEASED; )

) WD78157

MARY LU BROWN, PERSONAL )

REPRESENTATIVE OF THE ) OPINION FILED:

ESTATE OF ARTHUR E. PETHAN, ) September 22, 2015

DECEASED, )

)

Respondent, )

)

v. )

)

DAVID A. HEIN, )

)

Appellant. )

Appeal from the Circuit Court of Cooper County, Missouri

The Honorable Keith M. Bail, Judge

Before Division One: Cynthia L. Martin, Presiding Judge, Joseph M. Ellis, Judge and

James E. Welsh, Judge

David A. Hein ("Brother") appeals a judgment that sanctioned him for discovery

violations by striking his answer and affirmative defenses and that entered judgment in

favor of Mary Lu Brown ("Sister") on one of two counts in Sister's petition seeking the

discovery of assets in a probate proceeding. Brother also appeals from an order granting

Sister's motions for bond forfeiture and civil contempt after Brother violated the terms of

a consent order.

Because Brother's appeal from the sanctions judgment is moot, and because

Brother has appealed an order that is not designated as a "judgment," we dismiss

Brother's appeal.

Factual and Procedural History

Arthur Pethan ("Pethan") died in November 2009. Brother and Sister were

Pethan's heirs. Pethan's estate was opened on May 21, 2010. Sister was appointed as the

personal representative for Pethan's estate on November 1, 2011.

On November 17, 2011, Sister filed a discovery of assets petition against Brother.

Sister alleged in Count I that Brother had removed a tractor, farm equipment, and various

furniture items ("Property") from Pethan's estate after Pethan's death and had executed a

false bill of sale for the Property. Sister requested an award of punitive damages in

Count II of the petition.

Sister filed a motion for sanctions against Brother on September 3, 2013, alleging

discovery violations. Sister requested that Brother's answer be stricken, the entry of

judgment in her favor on her petition, and an evidentiary hearing to calculate punitive

damages and attorney's fees.

Following a hearing, the trial court entered its "Order Relating to Motion for

Sanctions and Judgment" ("Sanctions Judgment") on November 1, 2013. The Sanctions

Judgment sustained Sister's motion for sanctions, struck Brother's answer and affirmative

defenses, and entered judgment "in favor of [Sister] and against [Brother] on Count I of

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[Sister's] Petition for Discovery of Assets." The Sanctions Judgment ordered Brother to

deliver the Property to Sister at the Cooper County Fairgrounds on November 30, 2013.

The Sanctions Judgment scheduled a hearing for December 9, 2013, "to hear additional

evidence as to damages" including "evidence regarding punitive damages . . . if [Brother]

fails to deliver the [Property]" to Sister. The Sanctions Judgment thus resolved Count I

of Sister's petition but reserved determination of Count II of Sister's petition.

Following entry of the Sanctions Judgment, Brother filed pleadings seeking to stay

his obligation to deliver the Property, to continue the damages hearing, and to set aside

the Sanctions Judgment.

On December 2, 2013, the trial entered a "Consent Order." The Consent Order

directed that "[u]pon the agreement of the parties" Brother would deliver the Property to

Sister by February 1, 2014; Brother would post a $20,000 bond by December 13, 2013,1

which would be forfeited and paid to Sister if Brother failed to deliver the Property; and

that the hearing on Sister's punitive damages claim would be continued until sometime

after February 1, 2014. The Consent Order also reflected Brother's agreement to permit

Sister to prove up her attorney's fees claim by the submission of an affidavit.

Brother delivered some of the Property to the Cooper County Fairgrounds on

January 18, 2014, and delivered the balance of the Property by February 1, 2014. Sister

thereafter secured the trial court's authority to sell the Property at auction.

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On December 13, 2013, the trial court entered a "Stipulation and Order" reiterating Brother's and Sister's

agreements which led to entry of the Consent Order and which reflected the parties' further agreement to permit

Brother until December 16, 2013, to post the agreed upon $20,000 bond.

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After the auction, Sister filed a motion for bond forfeiture and a motion for

contempt against Brother. Sister alleged that Brother had intentionally sabotaged some

of the Property that was delivered, causing it to decline in value.

Following a hearing, the trial court entered an order on November 20, 2014,

granting Sister's motions for bond forfeiture and contempt ("Order"). The Order noted

the parties' agreements giving rise to the Consent Order. The trial court found that

Brother had intentionally and willfully violated the trial court's previous orders and that

Brother's conduct had resulted in a decrease in the fair market value of the Property by

$7,500. The Order found Brother in contempt and fined him $5,000 "in order to

compensate the Estate of Arthur Pethan for its actual damages and attorney's fees the

estate has incurred in connection with [Sister's] Motions and to deter [Brother] from such

conduct in the future." The Order directed that the amount of $12,500 "shall be paid

from the $20,000 bond [Brother] previously posted with the Court," with the $7,500

balance of the bond to be refunded to Brother.

On November 26, 2014, Brother appealed. On December 15, 2014, Sister

voluntarily dismissed Count II of her petition.

Analysis

Brother asserts two points on appeal. In his first point, Brother claims that the

Sanctions Judgment was entered in error because Sister failed to establish she was

prejudiced by Brother's discovery violations. In his second point, Brother claims that the

Order was entered in error because Sister's motions to forfeit the bond and for contempt

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were barred by the doctrine of laches. Both points require that we first discern whether

we may entertain Brother's appeal.

"Prior to reaching the merit of the issues in this case, this Court must determine,

sua sponte, if there is a final judgment." Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801

(Mo. banc 2012) (citing Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997)). A

final judgment is a prerequisite to appellate review." Id. If the circuit court's judgment

was not a final judgment, then the appeal must be dismissed." Id. "A final judgment

'resolves all issues in a case, leaving nothing for future determination.'" Id. (quoting

Gibson, 952 S.W.2d at 244). "Damages are an essential element of a claim and must be

resolved for a judgment to be final and appealable." Crest Const. II, Inc. v. Hart, 439

S.W.3d 246, 249 (Mo. App. W.D. 2014) (internal quotations omitted). Moreover, "[a]s a

threshold matter, appellate courts must determine if a controversy is moot." Dotson v.

Kander, 435 S.W.3d 643, 644 (Mo. banc 2014) (citing State ex rel. Reed v. Reardon, 41

S.W.3d 470, 473 (Mo. banc 2001)). An appellate court is obligated to examine an appeal

for mootness "either upon motion of a party or acting sua sponte." Missouri Municipal

League v. State, No. SC94493, 2015 WL4627486, at *1 (Mo. banc August 4, 2015).

"Mootness implicates the justiciability of a controversy and is a threshold issue to

appellate review." LeBeau v. Commissioners of Franklin County, 459 S.W.3d 436, 438

(Mo. banc 2015) (citing Reed, 41 S.W.3d at 473). "To exercise appellate jurisdiction,

there must be an actual controversy that is 'susceptible of some relief.'" Dotson, 435

S.W.3d at 644 (quoting Reed, 41 S.W.3d at 473). "When an event occurs which makes a

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court's decision unnecessary or makes granting effectual relief impossible, the case is

moot and should be dismissed." Id.

Point one of Brother's appeal claims error with respect to entry of the Sanctions

Judgment. By its plain terms, the Sanctions Judgment did not resolve all issues, as it

expressly reserved determination of Count II of Sister's petition. The Sanctions Judgment

was not, therefore, a final judgment at the time Brother filed his appeal. Crest Const. II,

Inc., 439 S.W.3d at 249.

We recognize that Sister dismissed Count II of her petition nearly a month after

Brother filed his appeal. And we recognize that there is authority for the proposition that

a party's voluntary dismissal of remaining claims or parties following entry of an

interlocutory judgment can render the interlocutory judgment final for purposes of

appeal. See Bailey v. Innovative Management & Inv., Inc., 890 S.W.2d 648, 649-50 (Mo.

banc 1994) (finding that an interlocutory summary judgment in favor of one defendant

became final and appealable when the plaintiff later voluntarily dismissed the remaining

defendant); Magee v. Blue Ridge Professional Bldg. Co., Inc., 821 S.W.2d 839, 842 (Mo.

banc 1991) (finding that an interlocutory order dismissing claims against one defendant

became final and appealable when the plaintiff later voluntarily dismissed claims against

all remaining defendants).

Assuming, arguendo, that Sister's post-appeal voluntary dismissal of Count II of

her petition converted the interlocutory Sanctions Judgment into a final judgment, and

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assuming that Rule 81.05(b)2 would thus apply to require us to consider Brother's

premature appeal as having been filed immediately after the Sanctions Judgment became

final, Brother's claim of error regarding the Sanctions Judgment must nonetheless be

dismissed. Brother's voluntary agreement to, and performance of, the terms of the

Consent Order constituted voluntary performance of the Sanction's Judgment, rendering

Brother's claim of error relating to the Sanctions Judgment moot.

The Sanctions Judgment ordered Brother to deliver the Property that was the

subject of the discovery of assets claim to a particular location by a particular date. The

Sanctions Judgment ordered a hearing on Sister's remaining claim for punitive damages,

and on her claim for an award of attorney's fees. Brother contested the Sanctions

Judgment and filed a motion to set it aside, sought continuances of the damages hearing,

and sought a continuance of the deadline for delivery of the Property.

Thereafter, the trial court entered the Consent Order based on the agreement of the

parties. Pursuant to the Consent Order, Brother voluntarily agreed to deliver the Property

to a specified location by February 1, 2014, and to post a bond to ensure his performance

of this obligation. Sister agreed to defer a hearing on her punitive damage claim until

sometime after the date agreed upon for delivery of the Property. And both parties

agreed that Sister's attorney's fee claim could be ruled by the trial court based on

submitted affidavits. The Consent Order represented "a recital of an agreement," and

"not a judicial determination of rights." Henze v. Schallert, 92 S.W.3d 317, 319 (Mo.

App. E.D. 2002). More to the point, the Consent Order represented Brother's voluntary

2

All citations to the Rules are to Missouri Court Rules Volume I--State (2015).

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agreement to the manner in which he would perform the obligation to deliver the

Property described in the Sanctions Judgment.

"[A] party may estop himself from taking an appeal by performing acts after the

rendition of the order or judgment which are clearly inconsistent with the right of

appeal." Stevens Family Trust v. Huthsing, 81 S.W.3d 664, 667 (Mo. App. S.D. 2002)

(internal quotations omitted). "The estoppel may consist of any voluntary act which

expressly or impliedly recognizes the validity of the judgment, order or decree." Id.

"Accordingly, it is also generally recognized that when a defendant voluntarily pays a

judgment rendered against him, he may not appeal from that judgment." Id. "When the

judgment has been paid, the issue is settled and the question is moot." Id.

"An involuntary payment, however, does not render an appeal moot." Two

Pershing Square, L.P. v. Boley, 981 S.W.2d 635, 638 (Mo. App. W.D. 1998). "A

payment is considered involuntary when it is made to forestall collection and no

supersedeas bond is posted." Id. "A payment is also considered involuntary when it is

made after execution or writ of garnishment in aid of execution has issued because it is

presumed to have been made as a result of legal coercion." Id. "A payment made to cut

off the accrual of interest on a judgment is also considered involuntary." Id.

Brother's agreement to the terms of the Consent Order, and his delivery of the

Property pursuant to the terms of the Consent Order, were not in response to collection

procedures or to any attempt to enforce the Sanctions Judgment by execution or

garnishment. The Sanctions Judgment did not provide for the accrual of interest,

rendering it unnecessary for Brother to enter into the Consent Order or to deliver the

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Property to cutoff the accrual of interest. Rather, Brother voluntarily agreed to terms by

which he would perform the obligation to deliver the Property described in the Sanctions

Judgment. By agreeing to the terms set forth in the Consent Order, and by proceeding to

perform the terms of the Consent Order, Brother impliedly recognized the validity of the

Sanctions Judgment. Braveheart Real Estate Co. v. Peters, 157 S.W.3d 231, 233-34

(Mo. App. E.D. 2004) (holding that "[i]f the defendant's surrender of . . . property is

voluntary, he or she effectively concedes the correctness of the judgment, thereby

rendering the appeal moot").

In his Reply Brief, Brother nonetheless argues that his delivery of the Property

was involuntary. He claims that he was legally coerced into delivering the Property

because he otherwise would have been found in contempt of court and exposed to

punitive damages.3 We disagree. No contempt proceedings were pending when Brother

agreed to the terms of the Consent Order. In any event, even had they been, a similar

argument was rejected in Peters, when the Eastern District found that the surrender of

real property upon threat of contempt constituted a voluntary act. Peters, 157 S.W.3d at

233-34.

In short, Brother voluntarily agreed to entry of the Consent Order, which included

his agreement to deliver the Property to Sister. Brother thus impliedly recognized the

validity of the Sanctions Judgment. Brother thereafter delivered the Property as he

agreed to do pursuant to the Consent Order. The Property has been sold at auction. The

3

Brother also argues that he had no choice but to comply with the Sanctions Judgment because it was not a

final judgment and could not be appealed given Sister's outstanding punitive damages claim. This argument in

Brother's Reply Brief is in stark and irreconcilable conflict with the jurisdictional statement in Brother's principle

Brief where Brother argues that the Sanctions Judgment is a final, appealable judgment.

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relief awarded by the Sanctions Judgment has been voluntarily performed. Any decision

from this court resolving Brother's current complaint that the Sanctions Judgment was

improvidently entered would have no practical effect, rendering Brother's first point on

appeal moot.4

Point one is dismissed as moot.

Point two of Brother's appeal claims error in the entry of an Order granting Sister's

motions for bond forfeiture and contempt because both motions should have been barred

by the doctrine of laches.

Rule 74.01(a) states that a "[j]udgment . . . includes a decree and any order from

which an appeal lies" and that "[a] judgment is entered when a writing signed by the

judge and denominated 'judgment' or 'decree' is filed." "Thus, a written judgment must

be signed by the judge and must be designated a 'judgment.'" City of St. Louis v. Hughes,

950 S.W.2d 850, 853 (Mo. banc 1997). "The designation of 'judgment' may occur at the

top of the writing, within the body of the writing, or in a docket-sheet entry, but it must

be clear from the writing that the trial court is calling the document or docket-sheet entry

a judgment." Id. Generally, an appeal from an order that is not designated as a

"judgment" must be dismissed. See Gateway Directory Pub. Group, Inc. v. Fischer, 84

S.W.3d 496, 497 (Mo. App. E.D. 2002) (dismissing an appeal from an order that was not

designated as a "judgment.")

4

There are recognized exceptions to the mootness doctrine where a case becomes moot after it is argued

and submitted or where a case presents an unsettled issue of public interest that is likely to recur and to evade

review. Floyd v. Department of Mental Health, 452 S.W.3d 154, 158 (Mo. App. W.D. 2014). Neither exception

applies here.

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It is true that pursuant to Rule 41.01(b), "[t]he provisions of Rule 74 are not

applicable to probate proceedings . . . unless the judge of the probate division orders that

it shall be applicable in a particular matter . . . ." In Estate of Downs, 400 S.W.3d 360,

361 (Mo. App. W.D. 2013) (citing Rule 41.01(b)); Burgess, Care & Treatment of v.

State, 34 S.W.3d 430, 431 n. 2 (Mo. App. S.D. 2000). Here, the trial court entered an

order on February 24, 2011, directing that Rules 41 through 101 were applicable to the

proceedings. It was thus essential that the Order comply with Rule 74.01(a) as a

condition to Brother's right to appeal the Order.5

Plainly, the Order is not designated a "judgment," and there is no indication within

the body of the Order that the trial court considered the Order to be a judgment. The

Order is not appealable.6

Point two is dismissed.

5

Even where this not the case, Brother has not explained how or whether the Order falls within one of the

categories of immediately appealable probate orders enumerated by section 472.160.1(1)-(14).

6

The Order granted two motions--Sister's motion for bond forfeiture and Sister's motion for an order

holding Brother in contempt. Contempt orders are not exempt from Rule 74.01(a)'s "denomination as a judgment"

requirement. However, civil contempt orders, even if denominated as a "judgment," are not final for purposes of

appeal until they are enforced, either through the imposition of fines or imprisonment. In re Marriage of Crow and

Gilmore, 103 S.W.3d 778, 781 (Mo. banc 2003). Here, the record does not reveal whether the contempt portion of

the Order (which ordered the payment of a $5,000 fine to Sister from the bond Brother posted) has been enforced.

More to the point, as Brother notes in his Brief, the $5,000 fine imposed for contempt was not "for the

purpose of coercing compliance with relief that had already been granted . . . but [was] instead awarded to punish

[Brother] for failing to comply with the court's order." [Appellant's Brief, p. 19] This calls into question whether

the Order found Brother to be in civil or criminal contempt. "Civil contempt is intended to benefit a party for whom

an order, judgment, or decree was entered. Its purpose is to coerce compliance with the relief granted." State ex rel.

Chassaing v. Mummert, 887 S.W.2d 573, 578 (Mo. banc 1994). In contrast, criminal contempt is authorized as a

part of a court's inherent constitutional power and by section 476.110 to punish a person's refusal to abide by a

court's authority as to protect the dignity of the judicial system. See Smith v. Pace, 313 S.W.3d 124, 129-30 (Mo.

banc 2010); Teefey v. Teefey, 533 S.W.2d 563, 565 (Mo. banc 1976). A criminal contemnor has no right of appeal.

Smith, 313 S.W.3d at 129.

We express no opinion as to whether the contempt aspect of the Order can be appealed, even assuming the

Order is hereinafter designated as a "judgment."

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Conclusion

Brother's appeal is dismissed.

__________________________________

Cynthia L. Martin, Judge

All concur.

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