1 CYNTHIA HARRIS, ) ) Plaintiff-Appellant, ) ) v. ) N o. 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”) fi led this civil action (“the civi l case”) against Respondents in the Circuit Court of Phelps County (“the circuit court”). The petition alleged that Appellant’s decease d husband, Melvin Harris (“Dece dent”), had conveyed via a beneficiary deed two parcel s of land to Respondents in fr aud of Appellant’s marital rights. Respondents ar e heirs to Decedent’ s estate, which is b eing administered (“the probate proceeding”) in the Pr obate Division of the Circuit Cou rt of Phelps County (“the probate division”). In three points relied on, Appellant appeals the circuit court’ s judgment dismissing the civil case. Becau se the circuit court did not e rr in dismissing the case without prejudice based upon the do ctrine of abatement, we affi rm.2 Background The Probate Proceeding Decedent died on March 21, 2015. 1 No application for letters testamentary or administration were filed with in twenty days of his death, but on December 23, 2015, Anna Mae Edgar, Decedent’s sist er (“Sister”), filed an affidavi t in the probate division that alleged the appropriate cr iteria for opening a small-estat e 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 Requi re Supervised Administration of Decedent’s Estate” (“Motion to Convert”). The Moti on to Convert asked the probate division to “open a full estate” and appoint an administr ator. Appellant also filed an election of surviving spouse claim, a homestead allowance clai m, and a claim for an exempt p roperty allowance. The probate division denied Appe llant’s Motion to Convert, a de cision we reversed in Estate of Harris , 529 S.W.3d at 34. In reversing tha t decision, this court remanded the case with directi ons that the probate division ope n 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 require d full administration of Decede nt’s estate as Appellant had requested and as required by this court’s mandate; and (2) naming Sister to serve as personal representative. The or der also noted that if Sister m ade timely application for

1 Our recitation of actions taken i n the probate proceeding is t aken 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 record s in prior proceedings that are between the same parties and are concerned w ith the same basic facts involv ing 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 as ked us in her brief to take judicial notice of the record on appeal in th e probate proceeding. 2 All statutory references are t o RSMo 2016. All Rule reference s are to Missouri Cour t Rules (2019).3 letters of administration, “[a ]ny such application shall be fil ed as a new proceeding in this [c]ourt and shall be accompanied by any applicable supporting d ocuments and the appropriate filing fee.” Sister then timely filed her requ est for letters of administrat ion 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 Dec edent’s estate and began presiding over a full admini stration of that estate.
The Civil Case Meanwhile, on July 8, 2016, Appellant filed a petition in the c ircuit 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 al leged that Decedent had conveyed two parcels of real ty, worth nearly $900,000, in fraud of Appellant’s marital rights. The property at issu e had been transferred upon Decede nt’s death to Decedent’s trust via a beneficiary deed, a nd those parcels of real propert y are included at this point as a part of Decedent’s estate i n the probate pr oceeding. The pet ition also allege d that Sister was the recipient of the fraudul ent transfers and that other Re spondents/heirs may also have an interest in the fra udulently-conveyed property. On December 27, 2018, Respondents filed “ [RESPONDENT]S’ MOTION TO
DISMISS ” Appellant’s petition in the ci rcuit court (“Motion to Dismiss ”). As their basis for dismissal, Respondents allege d that the prope rty at issue w as “part of the estate pending in the [probate division,]” and because the probate div ision already had “competent jurisdiction” over Decedent’s estate, that jurisdict ion continued exclusively4 with the probate division until a final distribution of Deceden t’s estate took place. The circuit court agreed, granted t he Motion to Dismiss, and entere d the judgment Appellant now appeals. As of the date of this opinion, A ppellant’s appeal of the proba te proceeding remains pending and there has been no final settlement and dist ribution of Decedent’s

estate. 3 Analysis
Point 1 Appellant’s first point on appeal c laims the trial court erred in granting the Motion to Dismiss because “Res pondents[‘] invocation of their p ending action/competent jurisdiction defense was untim ely – in fact, they waived it – i n that Respondents failed to raise the defense in a timely answer or motion to dismiss the a mended 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 o f action this Court assumes that a ll the averments in the plainti ff’s petition are true, and liberally grants t o plaintiff all reasonable infe rences 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 th ey are credible or persuasive. Id. Meyer v. Meyer , 21 S.W.3d 886, 889 (Mo. App. E.D. 2000). Plaintiff filed her petition i n the circuit court on July 18, 2 016, followed by an amended petition on January 31, 2018. In December 2018, Respon dents filed the Motion to Dismiss, which claimed that Decedent’s property – the subjec t matter of Appellant’s amended petition in the circuit court – had been fraudulently t ransferred to Decedent’s

3 The distribution of Decedent’s estate (via the probate proceed ing) is the subject o f 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).5 trust, thereby making the dee d 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 [div ision] retains proper jurisdiction of the e ntire estate, includi ng the property which is the subject matter in this case.” Appellant opposed the Mot ion to Dismiss on several grou nds, the one at issue in this point being that it was untimely filed. In granting the M otion to Dismiss, the circuit court noted as follows: Although [the Motion to Dismiss] may not be in technically corr ect form, the court determines its wor ding is effective to raise th is court’s jurisdiction and the doc trine of abatement. In re Estate of Harris , 529 S.W.3[]d 31, 34 ([M o. App.] S.D. 2017). It is clear the court has conc urrent jurisdiction over the issu es in this case but that jurisdiction i s subject to the Doctrine of A batement. “Abatement holds that where a cl aim involves the same subject m atter and parties as a previously filed ac tion so that the [same] facts a nd issues are presented, resolution should o ccur 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 sta te that, “[w]hile this court ha s concurrent jurisdiction, ‘once competent jurisdiction is obtained by a pro bate [division] over an estate, it continues exclusively in that [division] as to all m atters pertaining directly to the settlement of the estate until final distribution and prior to such distribution no other court, not even a court of concur rent jurisdiction can interfer e with its actions.’ Meyer v. Meyer , supra at 890.” The circuit cour t therefore gr anted the Motio n to Dismiss “with leave [for Appellant] to pursue he r claim in the probate estate .”

4 In her “ OBJECTIONS TO PETITION FOR APPRO VAL OF STATEMENT OF ACCOUNT AND ORDER OF DISTRIBUTION, FINAL STATEMENT OF ACCOUNT AND SCHEDULE OF PROPOSED DISTRIBUTION[,] ” Appellant claimed that the pr operty 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 c onstituted a gift that, accordi ng to that statute, “may be recovered from the donee and persons taking from the decedent without adequate con sideration and applied to the payment of the spouse’s share, as in case of his or her election to take a gainst the will.” Section 474.150.1.6 The circuit court properly treat ed the Motion to Dismiss as sta ting 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 c itation omitted) (construin g two “dismissal motions” as motions for abatement and noting that it was not necessary f or the motions to cite Rule 55.27(a)(9) in order to present t he abatement issue to the cour t); 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 for estall 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 pr udential 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 cou rts must address abatement issues sua sponte ). Point 1 is denied.
Point 2 Point 2 claims the trial cour t erred in granting Respondent’s M otion to Dismiss “because Respondents[‘] pending action/competent jurisdiction a ffirmative defense was meritless[.]” Appellant supplies two reasons why said defense was meritless. We reject them in turn, based upon the follo wing principles of law. “Abatement, also known as the ‘p ending action doctrine,’ holds that where a claim involves the same subject matter and parties as a previously-filed acti on so that the same f acts and issues are p resented, resolution should occur through the p rior 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 occu rred here, another option is to stay the matter pending the outcome of the prior case. Sherman v. Missouri Prof’ls Mut. – Physic ians Prof’l Indem. Ass’n (MPM – PPIA) , 516 S.W.3d 867, 869-70 (Mo. App. W.D. 2017).7 (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 ju risdiction 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’ al ignment in the original suit is reverse d in the subseque nt action, it i s appropriate if the second cause of action is e ssentially identical to the firs t action filed. Id. When deciding whether to grant a motion to dismiss on grounds o f abatement, a trial court ma y look beyond the plaintiff’s petiti on to the facts alleged in the movant’s motion and supporting evidence at tached thereto. Estate of Holtmeyer v. Piontek, 913 S.W.2d 352, 357 (Mo.App. E.D.1996). In order for the abat ement doctrine to apply, the o bject, purpose and principles of law rai sed 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 he r petition in the civil case was filed before the probate proceeding began, such tha t there was no other “action pending between the same parties for the same cause in t his state[.]” We disagree. Under Rule 55.27(a)(9), a proper de fense to an action exists if “there is another action pending between the same pa rties for the same cause in t his state[.]” The circuit court rightly addressed Respondents’ timing argument as follows : [Appellant], in her Motion f or Summary Judgment,[ 6 ] says this action was filed before the pr obate case #17PH-PR00435. That i s not entirely accurate. [Decedent ] died March 21, 2015. [Sister] f iled an Affidavit for Administration of “a small estate” on Dec. 23, 20 15. [Appellant] herein filed a “Mo tion To Convert to Full Estate an d Require Supervised Administration of Decedent’s Estate.” That motion was denied by the pr obate [division], a decision th at was reversed by the Court of App eals on appeal of [Appellant] h erein. In re Estate of Harris , supra . Upon remand, and converted to a case of supervised estate administrati on, the case was assigned case nu mber 17PH-PR00418. Previously it had been #15PH-PR0435.

6 Appellant had filed a Motion for Summary Judgment in the circu it court prior to Respondents’ filing their Motion to Dismiss. Appellant’s Mo tion for Summary Judgment is not at issue in this appeal.8 That analysis is supported by the record. In Harris , our mandate directed that “[t]he probate division’s judgmen t [(denying Appellant’s Motion to Convert)] is reversed and the cause remanded for proceedings consistent with this opi nion.” 529 S.W.3d at 36. Upon remand, the probate division e ntered an order consistent w ith this mandate that directed Sister to file her app lication for letters of administ ration in what would then be given a new case number. When S ister did as ordered, the proba te division assigned the probate proceeding case number 17PH-PR00418. Despite the new c ase number, the action was a continuation of the s ame 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 pr esent action . . . is pointless and perverse” as it will require Appellant to incur a dditional legal fees, delay adjudication of the merits of he r cause of action, waste judici al resources, and frustrate the purposes of the abatement doctrine. First, no refiling will be require d as Appellant’s claim is sti ll pending in the probate proceeding. More importa ntly, 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 r ecognized as a legitimate concer n in this case. This concern is even more pres sing 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 t he subject of Appellant’s pending appeal in the probate pr oceeding. Appellant’s argument does not address the9 real danger of inconsistent j udgments regarding the property at issue if the circuit court were to allow the civi l case to continue. Further, Appellant makes no argum ent that adequate relief is no t available to her in the probate proceeding. Wh ile the probate division has issu ed its ruling on the issue in dispute here, that decisio n is currently under appeal, and no f inal distribution in Decedent’s estate has yet occurred. The abatement doctrine mak es clear that, “[o]nce competent jurisdiction i s obtained by a probate [divisi on] over an estate, it continues exclusively in that [division] as to all m atters pertaining directly to the settlement of the estate until the final distri bution and prior to such distribution no other cour t, not even a court of concur rent jurisdiction, can interfe re 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 th e trial court abused its discr etion by dismissing the case instead of consolidati ng the civil case and the probat e proceeding “because only consolidation would further the t win abatement goals of conserv ing judicial resources and avoiding inconsistent judgmen ts[.]” Yet again, we disagree

. “The decision to consolidate case s is within the circuit court’ s discretion and will be affirmed unless we find the c ircuit court abused its discret ion.” 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 Rul e 66.01(b), which states:10 When civil actions involving a c ommon question of law or fact a re pending before the court, it may or der 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 s uch orders concerning proceeding s 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 so 7 was not an abuse of its dis cretion. 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 ca ses. She merely asserted in her Suggestions in Opposition to Respondents’ Motion to Dismiss that consolidat ion was the proper remedy.