Opinion
No. 69321, 69528 69675
OPINION FILED: February 25, 1997
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS HONORABLE DAVID C. MASON.
Boatmen's Trust Company, successor trustee, sought instructions for distribution of the proceeds of a testamentary trust established by Ewing Hill, who died in 1912. The case has been here before, Boatmen's Trust Co. v. Conklin, 888 S.W.2d 347 (Mo.App.E.D. 1994), but the present appellant and respondent were not in an adversarial position during the first appeal.
In Conklin, the provision as to which the successor trustee sought instruction provided life income for the testator's daughter, Florence Hill Buysse, and her descendants living at the time of the testator's death, and went on to read in pertinent part as follows:
Upon the death of any child of my said daughter participating in this trust, leaving issue, such issue shall take parent's share of said trust estate. Upon the death of such child of my said daughter, without issue, the surviving child or children shall take the share of the one so dying. Upon the death of all of the children of my said daughter participating in this trust without leaving issue surviving, then the trust estate shall pass to my heirs-at-law.
Conklin, 888 S.W.2d at 348-349.
Ewing Hill Buysse, a grandson of the testator, died in 1990. He was the last surviving income beneficiary, and so distribution was in order. He had no biological descendants, but had legally adopted Sharon Lynn Conklin and Alan Thomas Coker when they were adults. They were made parties-defendants and filed answers claiming, primarily, that they were "issue" as that term was used in the will, and, alternatively, that they were "heirs-at-law."Id. at 350.
The petition specifically mentioned Conklin and Coker as potential claimants and requested instructions as to whether they were entitled to any portion of the distribution. Id. at 349. They filed motions for summary judgment contending that the provisions of the will should be construed as of the date of the death of the life tenant in 1990, so as to give effect to statutes enacted after 1912 expanding the rights of adopted children. Id. at 350. If Conklin and Coker could establish themselves as "issue" of Ewing Hill Buysse they would take the entire corpus to the exclusion of the descendants of the testator in other lines. As heirs-at-law, they would share a one-sixth interest in the corpus.
The other defendants were natural descendants of the testator, in five distinct lines. For our present purposes the significant claimants are Kathryn Marion and Michael Holmes, who are blood siblings and great-great grandchildren of the testator. Marion, however, had been adopted away from the testator's blood line by her stepfather before the life tenant died. The petition made no mention of this adoption, nor did the answers of Marion and Holmes. Marion filed an answer contending that the law in effect in 1911, when the will was executed, should be applied in interpreting the will, so that Conklin and Coker would not qualify either as "issue" or "next-of-kin." Holmes argued for the law in effect at the testator's death in 1912, which would yield the same result. He made no claim which would put him in a position adverse to Marion.
Several other parties, including Holmes, also filed motions for summary judgment. All opposed Conklin and Coker by arguing for a 1911 or 1912 date. Holmes's motion asked the court to hold specifically that "the adopted children are not the `issue' nor the `heirs-at-law' of Ewing Hill Buysse and therefore cannot take under the corpus of the trust of Ewing Hill," and that "the heirs-at-law should be determined as of the death of Hill in 1912."
The trial court rejected the claims of Coker and Conklin, finding that the law in effect at the date of the testator's death should be applied in interpreting the will provision. The court directed distribution among the other defendants, allocating one-tenth of the corpus remaining after payment of attorneys' fees to Michael J. Holmes and one-tenth to Kathryn J. Marion.
Conklin and Coker were the only appellants. Conklin, 888 S.W.2d at 348. No other party appealed. Holmes filed no post-judgment motions, nor did he appeal. Holmes and Marion joined in a brief urging full affirmance of the decree. This court affirmed in part and reversed in part, finding that Coker and Conklin were not "issue," but that, under certain possible findings, they might qualify as heirs-at-law so as to qualify them for a one-sixth share. Id. at 354. The opinion did not discuss, and had no occasion to discuss, any other issue. This court remanded the case for further consideration of their claims. Id. at 356. Before final judgment was entered by the trial court on the remand, Coker and Conklin reached a settlement with the other parties and there is no remaining issue as to them.
Following remand, Holmes joined in a request for an order confirming his right and the right of Marion to a 1/12 interest in the corpus rather than a 1/10 interest and the court entered a tentative order. Several weeks later, however, he took a different position, arguing that, by reason of her having been adopted by her stepfather, his sister Marion could not qualify as an "heir-at-law" under the law in effect in 1990, and that he was entitled to the entire share allocated to his line of descent. He had not suggested this position in the earlier proceedings, although he and his counsel were aware that his older sister had been adopted. (The attorney presently appearing for Holmes advises us that she was not personally aware of the adoption but concedes that her predecessor from the same office was informed. Her personal lack of knowledge is immaterial. Each attorney participating in the representation of a client is charged with the knowledge of other attorneys in the same representation). The trial court allowed the new claim and sustained it, holding that, by reason of Sec. 453.090.1, RSMo 1994, initially enacted in 1917, Marion lost her status as a presumptive heir-at-law of the testator when she was adopted. She appeals, arguing principally that Holmes had the obligation to present all claims that he had prior to the entry of the initial judgment in the case, and that, having neither presented his new claims in a timely manner nor having appealed from the initial decree, he was now precluded from asserting these claims.
We agree with Marion's contention and reverse. The plaintiff trustee gave all claimants the opportunity to present whatever claims they had to the corpus of the trust. Our procedural rules permit the filing of alternative and contingent claims. Rule 55.06; see also Autenrieth v. Bartley, 176 S.W.2d 546, 549 (Mo.App. 1943) (holding that a litigant who had unsuccessfully sought to have title to a fee interest quieted in him could not prosecute a second action asserting an easement in the same property). Holmes and his counsel were possessed of all material facts and did not choose to present the claim that Marion was barred on account of her having been adopted. See Lucas v. Enkvetchakul, 812 S.W.2d 256, 263 (Mo.App. 1991).
Holmes could have realized his maximum recovery by establishing first, that the applicable law was that in effect at the death of the life tenant in 1990, so that Marion was barred on account of her having been adopted out of the testator's line; and second, that Conklin and Coker could not claim either as issue or as heirs-at-law, because they were adopted as adults for the express purpose of establishing them as takers under the will, thus bringing the holding of Davis v. Nelson, 871 S.W.2d 35 (Mo.App.W.D. 1993) into play. By this argument Holmes would be entitled to one-fifth of the corpus remaining.
Holmes could put himself in a position to claim a one-sixth interest if the 1990 law were applied and either Conklin or Coker were recognized as an heir-at-law. This was the result reached in the trial court following remand.
Holmes, however, did not argue either of these possibilities during the first submission. His position was consistent and unequivocal in arguing for the application of the law in effect at the testator's death in 1912. The decree was wholly responsive to Holmes's contentions in awarding both him and Marion a one-tenth interest. By taking the position he did in the trial court Holmes fixed his maximum recovery. The final decree reached the result he sought, and so he was in no position to appeal. By the established general rule, a party who does not appeal may not secure relief more favorable than that received at the hands of the trial court. Duncan v. Duncan, 751 S.W.2d 763, 767 (Mo.App., 1988). This principle would apply a fortiori to a party disabled from appealing for failure to present a claim to the trial court. Cases also hold uniformly that a party is not aggrieved and cannot complain on appeal about a judgment or decree actively sought by that party. Manchester Enterprises, Inc. v. Sharma, 805 S.W.2d 186, 187 (Mo.App. 1991); Ford v. Missouri Div. of Employment Sec., 670 S.W.2d 203, 204 (Mo.App. 1984)
Holmes's counsel perhaps thought that his client's interest lay initially in establishing that the law of 1911 or 1912 should apply, because Holmes would have been excluded completely if Conklin and Coker could successfully establish that they were "issue." Counsel might have perceived a risk in departing from the united front supporting application of the earlier law. But this does not justify Holmes's failure to present other possible claims known to him at the trial level. The argument for applying the 1990 law in determining who qualified as heirs-at-law was as available to him then as it was to Conklin and Coker.
This court, indeed, had no authority to order relief on the first appeal in addition to that sought by the appealing parties. By Rule 84.13(a) alleged errors which are not raised in the trial court or briefed on appeal may not be considered. Rule 84.14 states that "[n]o new trial shall be ordered as to issues in which no error appears." See Pruellage v. De Seaton Corporation, 380 S.W.2d 403, 405 (Mo. 1964). Appeals are common in which some parties appeal and others do not, or in which error is preserved as to some issues but not as to others. Claims for relief are waived as to issues not preserved on appeal. Stevenson v. City of St. Louis School Dist., 820 S.W.2d 609, 611 (Mo.App. 1991). There is virtue in disposing of as much of the case as possible in an initial trial, especially in a case such as this one in which all parties are obliged to state their claims to the corpus of the trust. Had all claims been presented prior to the first appeal, furthermore, the parties might be disposed to settle this protracted and complicated litigation, and settlement might have been very much in the interest of all.
The parties cite numerous cases about the authority of a trial judge following remand. These are purely tangential because the issue presently involved never reached the appellate court and so there would be no occasion for directions on remand.
Holmes points to the principle that there may be only one final judgment in a case, and that the trial court has full authority over all phases of a case until final judgment is rendered. He suggests that even though the initial decree became final, its finality was subject to reversal on appeal and that the decree, having been reversed in part, was open for modification as to all issues following remand. State ex rel. Berbiglia, Inc. v. Randall, 423 S.W.2d 765 (Mo. banc 1968) is instructive in demonstrating that "finality" has varying meanings. Until a final judgment disposing of all parties and all issues is rendered, there may be no ordinary appeal.Id. at 769. The judgment is final in a sense, even though it might be partially or totally annulled by the order of an appellate court. The authority of the appellate court, however, is limited to giving relief to appealing parties on issues properly proposed and presented, and the trial court's order on remand extends only to matters as to which the appellate court has found error. Those portions of the judgment which are not properly appealed become final. In People's Bank of Glasgow v. Yager, 46 S.W.2d 585 (Mo. 1932), two signers were sued on a promissory note. One suffered a judgment by default while the other appealed. The court held that the default judgment was final and appropriate for execution even though the judgment against the other defendant was subject to reversal or modification on appeal. Id. at 587.
The parties argue about whether the principle to be applied is "res judicata," "collateral estoppel," or "law of the case." Inasmuch as the portions of the judgment not appealed from became final in the sense of the law, the proper term is "res judicata." Even though there may be only one initial final judgment, portions of that judgment may become final through failure to appeal. People's Bank of Glasgow v. Yager, supra.
The respondent Holmes places strong reliance on Noll v. Shelter Ins. Companies, 731 S.W.2d 393 (Mo.App. 1987). That case involved an action of garnishment seeking to apply the proceeds of two insurance policies to the payment of a judgment. The trial court initially held that there was no coverage because the person to whom the insured had lent his car was not driving at the time of the accident. Id. at 394. The court of appeals reversed, finding that the permittee could be found to be "using" the automobile even though he was not driving.Id. at 395. On remand the insurer argued that the plaintiff could have resort only to one of the policies because of an anti-stacking clause, and the trial court agreed. Noll v. Shelter Ins. Companies, 774 S.W.2d 147, 149 (Mo. banc 1989). On appeal after remand, the plaintiff argued that the insurer was obliged to raise the stacking point in the first appeal. Id. The Supreme Court disagreed, holding that, in the first appeal, the insurer was obliged only to defend the judgment in its favor, and had no standing to appeal an issue on which it was not aggrieved. Id. at 149-150. The Court also held that the plaintiff could recover only in accordance with the terms of the policy containing the anti-stacking clause, which the Court found valid. Id. at 152. TheNoll case differs from this one in that the insurer inNoll never sought to depart from the terms of the judgment from which the first appeal was taken.
Counsel also cites Butcher v. Main, 426 S.W.2d 356 (Mo. 1968) (Butcher II), relied on by the trial court. In that case, the appellant contended that the issue of Main's liability in an automobile accident was determined by a prior decision of the Missouri Supreme Court in Butcher v. O'Connor, 401 S.W.2d 490, 493 (Mo. 1966) (Butcher I). In rejecting appellant's contention, the Supreme Court quoted from Creason v. Harding, 344 Mo. 452, 126 S.W.2d 1179, 1183 (1939) as follows: "If [a case] is remanded generally all issues are open to consideration on a new trial. The pleadings may be amended or new and controlling facts produced. Often a second appeal presents a totally different case from that appearing on the first appeal." Butcher, 426 S.W.2d at 358. Butcher I involved an appeal from a judgment on a jury verdict. The Supreme Court ordered a new trial which, for want of contrary directions in the opinion, would extend to all issues. Id. If a case is tried to a jury, the court's power is limited. When the trial is to the court, however, the decision on remand should make use of matters resolved in the initial judgment of the court and not challenged by points properly raised on appeal in the manner specified in the rules.
The respondent, finally, cites cases for the proposition that the doctrine of waiver cannot give rise to a right of inheritance. Inheritance, however, is not at issue. The problem is one of interpretation of a will. See Davis v. Wilson, supra. (holding that a person who is legally an heir-at-law through adoption does not necessarily qualify to take as a member of a class limited to heirs-at-law). By established procedural law cited earlier a party may be held to have waived an available claim if the claim is not included in an appropriate pleading.
What has just been said responds also to Holmes's claim that the trial court, in the initial proceeding, never reached a definitive conclusion as to who were the "heirs-at-law" of the testator. The initial decree determined that Holmes and Marion shared one moiety of the corpus, and also determined the persons severally entitled to the other four shares. Conklin and Coker had no interest in the details of these determinations, and had no occasion to appeal from anything except the denial of their claims. The interests recognized in the initial decree might be subject to elimination or dilution based on the result of the appeal, but there was no reason to relitigate matters settled to the apparent satisfaction of all respondents in the first appeal.
The case of Duncan, 751 S.W.2d at 763, is virtually on all fours. A corporation was a party in a suit to quiet title and for partition, along with four individuals, whom we will call C, G, M, and L. C, G, and M took the position that title was in the corporate party, while L claimed an undivided one-fourth interest. Id. at 764. The trial court ruled for the corporation and only L appealed. Id. She was successful and the appellate court held that she was the owner of an undivided one-fourth interest in the property, remanding the case for partition. Id. at 764-765. C, G, and M then sought to change their position so as to claim individual interests, asserting that the same arguments L had used on appeal supported their claims. Id. at 766. The court held emphatically that they could not depart from the position they first took after the judgment they actively sought had been entered in the initial trial proceedings. Id. at 766. The opinion also stated that the appellate court's "correction" of the judgment as to the one-fourth interest left it intact as to the remaining three-fourths interest. Id. at 767. By the rule of theDuncan case the initial judgment sought by Holmes fixed his maximum recovery even though it was subject to reduction in the event of success by other parties in their appeals.
The Duncan opinion also distinguished In re Estate of Leonard, 467 S.W.2d 84 (Mo. 1971), which might superficially provide some support for Holmes's claims. There, 23 legatees of a specific bequest of corporate stock claimed that they were entitled to stock dividends declared after the will was executed but before the testator's death. The trial court rejected the claim and 17 of the 23 appealed while 6 did not.Id. at 88. The court found that the appeals were well taken and held that the 6 legatees who did not appeal should have the benefit of the reversal. Id. The court made it clear that the holding was contrary to the general rule that a party who does not appeal cannot obtain a better result at a later stage of the case, but listed recognized exceptions when the judgment is "indivisible" and consistent with the non-appealing party's position in the trial court. Id. Here, the first judgment determined the persons entitled to share in one moiety, and Holmes got what he asked for in the first trial.
Marion also protests the failure to allow her attorneys' fees. Inasmuch as we have upheld her contention as to distribution, it would be in order for the court to reconsider the question of fees on remand. We need not decide whether the trial court erred in denying her attorneys' fees as a part of its holding that she was not entitled to participate in the distribution. We caution, however, that the trial court's criticism of Marion for not disclosing her adoption in earlier proceedings was not appropriate. She was entitled to advance her own claim that, under the law which she thought should govern, the circumstance of adoption was immaterial. The only person who possibly could have benefitted by disqualifying her as an heir-at-law was Holmes, who well knew that she had been adopted. Under an adversary system the burden of adducing Marion's status as an adoptee in order to eliminate her as a claimant was on Holmes. It is also appropriate to observe that Holmes, by his belated raising of the issue, was undoubtedly responsible for a substantial additional expenditure of attorneys' and judges' time.
The judgment is reversed and the cause is remanded with directions to award Marion a share in the distribution equal to that of Holmes, and for further consideration of claims for attorneys' fees.
Clifford H. Ahrens, C.J. and William H. Crandall, Jr., J.: Concur
OPINION SUMMARY
Defendant-Marion appeals from the judgment of the trial court in favor of defendant-Holmes on judgment to disqualify Marion from taking a share of the proceeds of a testamentary trust established in 1912.
REVERSED AND REMANDED.
Division Five holds: (1) defendant-Holmes is precluded from presenting his claim that defendant-Marion is barred from taking her share of the trust proceeds because Holmes didn't present this claim in the initial proceeding,Boatmen's Trust Co. v. Conklin, 888 S.W.2d 347 (Mo.App.E.D. 1994), and thus abandoned it; and (2) in light of our holding that defendant-Marion is entitled to a share of the trust proceeds, the court should reconsider the question of attorneys' fees on remand.