1 

 

 

 

 

 

 

 

 

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. 
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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). 
3 

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 
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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). 
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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. 
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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). 
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(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. 
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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 
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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: 
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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.