Opinion
No. WD55608 (Consolidated with WD56048).
OPINION FILED: May 11, 1999.
APPEAL FROM THE CIRCUIT COURT OF PETTIS COUNTY, MISSOURI, HONORABLE ROBERT L. KOFFMAN, JUDGE.
Max E. Mitchell, Sedalia, MO, Attorney for Appellant.
Matthew B. Woods, Columbia, MO, Attorney for Respondents.
Before: Spinden, P.J., and Smith and Riederer, JJ.
Lisa Williams-Payton (Lisa) appeals from the judgment of the Probate Division of the Circuit Court of Pettis County dismissing a claim for punitive damages against her mother, Alyce M. Williams (Alyce), in a discovery of assets proceeding filed by Lisa pursuant to § 473.340 wherein she alleged that Alyce was adversely withholding $103,560 of annuity contract payments from the estate of the deceased, Bennie James Williams, II, (the estate). Bennie was the son of Alyce and the brother of Lisa. Alyce cross-appeals from the probate court's granting of Lisa's motion for summary judgment.
All statutory references are to RSMo 1994, unless otherwise indicated.
Lisa, in her sole point on appeal, claims that the probate court erred in dismissing the claim for punitive damages for a lack of subject matter jurisdiction because a probate court does have jurisdiction in a discovery of assets proceeding, pursuant to § 473.340, to award punitive damages in that such a proceeding is similar to a common law action for conversion, which will support a claim for punitive damages, and § 473.340 does not expressly or implicitly exclude the right to recover punitive damages. Alyce raises two points on cross-appeal. She claims that the probate court erred in sustaining Lisa's motion for summary judgment because: (1) the court lacked subject matter jurisdiction over the discovery of assets proceeding in that it failed to join the administrator ad litem of the estate as an indispensable party; and (2) there was a genuine dispute of material fact as to whether Alyce was adversely withholding assets of the estate in that, prior to his death, Bennie entered into an oral contract with her whereby he agreed to execute a will devising to her any remaining payments due under the annuity contract at the time of his death in return for her care and support until his death.
We affirm.
Facts
On June 15, 1993, Bennie, through his attorney-in-fact and mother, Alyce, entered into a single premium life annuity contract with First Colony Life Insurance Company (First Colony) whereby he was to receive payments in the amount of $3,452 on the 15th of each month beginning July 15, 1993. Such payments were guaranteed for twenty years or for the balance of his life, whichever was longer. The contract further provided that such payments were payable to him, as payee, or, upon his death, to the contingent payee, which was listed as "[t]he Estate of Bennie James Williams II or any person(s) designated by the Personal Representatives of the Estate of Bennie James Williams II of whom the Assignee is notified in writing prior to any payment being made." The first payment was made to Bennie on July 15, 1993. He died on July 28, 1993.
Following Bennie's death and prior to July 6, 1994, Alyce received five annuity contract payments from First Colony, totaling $17,260, payable to Bennie, which she endorsed and deposited in her personal bank account. On July 6, 1994, the probate court issued letters of administration to Alyce pursuant to § 473.110.2. On August 9, 1994, Alyce's attorney, pursuant to her request, informed First Colony that she, as the personal representative of Bennie's estate, had designated herself as the payee of the remaining annuity contract payments. On August 28, 1994, Alyce received a check from First Colony in the amount of $27,616, representing the balance of all payments due under the contract as of that date, which was made payable to her as the personal representative of the estate. She deposited the check in the estate's bank account.
Between September 15, 1994, and August 15, 1995, Alyce received twelve annuity payments from First Colony, each for $3,452, all payable to her as the personal representative of the estate. She deposited all of these payments in her personal bank account. On August 21, 1995, Alyce's attorney, again pursuant to her request, informed First Colony that future payments should not be made payable to Alyce as the personal representative of the estate, but should be made payable to her personally.
On or about September 19, 1995, pursuant to § 473.540, Alyce filed a settlement of the estate in the probate court. In the settlement, she stated that the estate had collected $27,616 from First Colony. She did not include any of the other payments made by First Colony following her son's death.
Between September 6, 1995, and July 15, 1996, Alyce received eleven annuity contract payments from First Colony totaling $37,972, payable to her, which she deposited in her personal bank account. Between September 15, 1996, and October 15, 1996, she received two additional payments totaling $6,904, payable to her, which she also deposited in her personal bank account. The First Colony annuity payment paid on August 15, 1996, as well as all payments made from November 15, 1996, to the present, were deposited in the estate's bank account.
On February 18, 1997, Lisa filed a petition for discovery of assets pursuant to § 473.340 in the Probate Division of the Circuit Court of Pettis County, Missouri, wherein she alleged that all annuity contract payments made by First Colony following her brother's death, totaling $103,560, were assets of his estate and that Alyce had adversely withheld them from the estate. Lisa sought to have these payments returned to the estate, including interest. She further alleged that Alyce had breached her fiduciary duty to the heirs of the estate and sought punitive damages in the amount of $250,000.
As an heir of Bennie's intestate estate, § 474.010(2)(b), Lisa was an interested party to the discovery of assets proceeding. § 473.340.
On April 14, 1997, the probate court "withdrew" Alyce's letters of administration and appointed an administrator ad litem, pending the outcome of the discovery of assets proceeding. On March 10, 1997, Alyce filed her answer to Lisa's petition and alleged that Bennie had wished for her, not his other heirs, to have the remaining annuity payments. On December 19, 1997, Lisa filed a motion for partial summary judgment on her claim for the return of the annuity payments to the estate. In her response to Lisa's motion, Alyce filed her affidavit wherein she stated that Bennie had entered into an oral contract with her whereby he agreed to execute a will devising to her any remaining payments due under the annuity contract at the time of his death in return for her care and support until his death.
On February 19, 1998, the probate court sustained Lisa's motion for partial summary judgment, finding that all annuity contract payments made by First Colony, following Bennie's death, were assets of his estate and that Alyce had wrongfully withheld $103,560 in payments. Accordingly, the court entered judgment in favor of the estate against Alyce in the amount of $103,560, plus interest.
On March 26, 1998, Alyce filed a motion to dismiss the unresolved claim for punitive damages, alleging that the probate court was without jurisdiction to hear it. On June 2, 1998, the probate court sustained Alyce's motion to dismiss, finding that punitive damages were not recoverable in a discovery of assets proceeding.
This appeal and cross-appeal follow.
Discussion
Logically, we must first address Alyce's claim in her cross-appeal that the probate court lacked subject matter jurisdiction over the discovery of assets proceeding for failure to join an indispensable party. This is so in that if she is correct as to her claim, we would not be required to address her remaining claim on cross-appeal, that the court erred in sustaining, in part, Lisa's motion for summary judgment because there was a genuine dispute of material fact, or Lisa's claim on appeal that the court erred in dismissing the claim for punitive damages. Cunningham v. Director of Revenue , 965 S.W.2d 883, 884 (Mo. App. 1998).
Alyce's Cross-Appeal
I. Did the Probate Court Have Subject Matter Jurisdiction Over the Discovery of Assets Proceeding?
In her first point, Alyce claims that the probate court erred in sustaining Lisa's motion for summary judgment because the court lacked subject matter jurisdiction over the discovery of assets proceeding in that the court failed to join the administrator ad litem of the estate as an indispensable party. Specifically, Alyce claims that because the probate court "withdrew" her letters of administration and appointed an administrator ad litem, pending the outcome of the discovery of assets proceeding, she was dismissed, as the personal representative of the estate, as a party to the proceeding, requiring the court to join the administrator ad litem, as an indispensable party, to represent the estate's interests. In response, Lisa contends that: (1) the administrator ad litem was not an indispensable party because Alyce, as the personal representative of the estate, was never actually dismissed as a party to the lawsuit; and (2) even if she, as the personal representative, was no longer a party to the proceeding, the estate benefited from the summary judgment and no more advantageous outcome could have been reached had the administrator ad litem been joined. Because we agree with Lisa that the administrator ad litem was not an indispensable party to the discovery of assets proceeding, for the reasons stated, infra, we find that the probate court did have subject matter jurisdiction over the proceeding.
Section 473.340, governing discovery of assets proceedings, provides, in pertinent part, as follows:
4. If the court finds that a complete determination of the issues cannot be had without the presence of other parties, the court may order them to be brought in by an amended or supplemental petition. The court shall order the joinder of the personal representative of the estate if he is not named as a party.
Alyce claims that this statute required the probate court to join the administrator ad litem of the estate in the discovery of assets proceeding after she, as the personal representative of the estate, was dismissed as a party to the lawsuit. "The lack of an indispensable party is a jurisdictional failure which may be raised at any stage of the proceedings, even on appeal." Beck v. Pilla (In re Estate of Pilla), 735 S.W.2d 103, 105 (Mo. App. 1987).
In Simpson v. Shelker , 747 S.W.2d 259 (Mo. App. 1988), four of the decedent's children filed a petition to discover assets pursuant to § 473.340, claiming that one of their siblings, Alberta Shelker, was adversely withholding assets from the estate. The personal representative of the estate was not made a party to the lawsuit. Id. On appeal, Shelker claimed that the personal representative was an indispensable party such that the trial court lacked jurisdiction over the proceeding. Id. In holding that the personal representative was not an indispensable party under Rule 52.04 and § 473.340.4, the court found that the purpose of § 473.340 was to protect the estate and that the purpose had been fulfilled in that
the trial court's judgment benefited the estate; no more advantageous outcome was possible. The duty of the personal representative of [the] estate was fulfilled by respondents. The estate . . . was not harmed by the failure of the trial court to join the personal representative as a party. The interests of the estate were fully protected and the personal representative in that capacity was not affected.
Id. at 260. The court noted that neither Shelker nor the personal representative had alleged any prejudice to the estate for the court's failure to join the personal representative. Id. The holding in Simpson teaches us that where the probate court's judgment in a discovery of assets proceeding benefits the estate and no more advantageous outcome was possible, the personal representative or administrator ad litem is not an indispensable party because his or her duty was fulfilled by the parties filing the petition. Id.
Here, in the probate court's partial summary judgment, it found that all the annuity payments made to Alyce and deposited in her personal account following Bennie's death were assets of the estate and that she was adversely withholding them in the amount of $103,560, which she was ordered to return to the estate, with interest. As such, the court's judgment clearly benefited the estate. However, Alyce argues that because the probate court dismissed the claim against her for punitive damages, a more advantageous outcome for the estate was possible if the administrator ad litem had been joined as a party. This argument is without merit in that we hold, infra, that punitive damages are not recoverable in a discovery of assets proceeding pursuant to § 473.340. Consequently, in this case, even if the administrator ad litem had been joined as a party to the discovery of assets proceeding, the most advantageous outcome possible was the return to the estate of the annuity payments with interest, which, in fact, occurred.
Alyce cites Delaney v. Meiners , 842 S.W.2d 565 (Mo. App. 1992), Schwarz v. Stemme (In re Bloemker), 766 S.W.2d 687 (Mo. App. 1989), and Beck v. Pilla (In re Estate of Pilla), 735 S.W.2d 103 (Mo. App. 1987) for the proposition that a personal representative or administrator ad litem of an estate is always an indispensable party in discovery of assets proceedings. However, in each of the cases cited, the judgment was rendered in favor of the defendant, not the estate. Thus, Alyce's reliance on them is misplaced.
For the reasons stated, even assuming, arguendo, that Alyce, in her role as personal representative of the estate, was dismissed as a party to the discovery of assets proceeding, the administrator ad litem was not an indispensable party to the proceeding and the failure of the probate court to join the administrator ad litem did not deprive it of subject matter jurisdiction over the proceeding.
Point denied.
II. Was There a Genuine Dispute of Material Fact as to Whether Alyce Was Adversely Withholding Assets From the Estate?
In her second point, Alyce claims that the probate court erred in sustaining Lisa's motion for partial summary judgment on her petition for discovery of assets pursuant to § 473.340 because there was a genuine dispute of material fact as to whether she adversely withheld $103,560 in annuity payments from the estate, a material fact on which Lisa relied for summary judgment. Specifically, she claims that her withholding of these payments was not done adversely because, prior to his death, Bennie entered into an oral contract with her whereby he agreed to execute a will devising to her any remaining payments due under the annuity contract at the time of his death in return for her care and support until his death. We disagree.
When considering appeals from summary judgments, the [c]ourt will review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.
Our review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.
ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993) (citations omitted). Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. at 377.
To be entitled to summary judgment under Rule 74.04, Lisa, as the movant, must have established that (1) there was no genuine dispute as to the material facts on which she relied to recover and had the burden of persuasion at trial, and that (2) on these undisputed facts, she was entitled to judgment as a matter of law. Id. at 381. As the claimant, she was required to establish, with undisputed evidence, each and every element of her claim for discovery of assets. Id. Additionally, where the non-movant has raised an affirmative defense, as in the instant case, a claimant's right to summary judgment depends just as much on the non-viability of that affirmative defense as it does on the viability of the claimant's claim. Id. It does not matter that the non-movant will bear the burden on this issue at trial. Id.
[A] claimant moving for summary judgment in the face of an affirmative defense must also establish that the affirmative defense fails as a matter of law. Unlike the burden of establishing all of the facts necessary to his claim, however, the claimant may defeat an affirmative defense by establishing that any one of the facts necessary to support the defense is absent. At this stage of the proceeding, the analysis centers on Rule 74.04(c); it is irrelevant what the non-movant has or has not said or done.
Id.
To be entitled to summary judgment on her petition for discovery of assets, Lisa was required to show that: (1) Bennie held title to the annuity contract at the time of his death, and (2) Alyce was adversely withholding payments due under the contract from the estate. State ex rel. Abele v. Harman , 962 S.W.2d 945, 947 (Mo. App. 1998). As to these elements, there is no dispute that Bennie held title to the annuity contract at the time of his death on July 28, 1993. Further, there is no dispute that Alyce withheld annuity payments from the estate in the amount of $103,560. The dispute centers on whether Alyce adversely withheld the payments.
In order to defeat Lisa's motion for summary judgment, Alyce contends that she raised an affirmative defense in her pleadings, which was not refuted by the undisputed facts in this case. In this respect, she argued that she raised the affirmative defense that she was entitled to the annuity payments under her alleged oral contract with Bennie for the execution of a will. And, if in fact she did raise this affirmative defense, Lisa's right to summary judgment depended as much on the non-viability of Alyce's affirmative defense as it did on the viability of Lisa's petition for discovery of assets. ITT Commercial Fin. , 854 S.W.2d at 381. As such, in order to make a prima facie case for summary judgment, Lisa was not only required to establish the elements of her action for discovery of assets, but to establish that Alyce's affirmative defense failed as a matter of law. Id.
With regard to Alyce's alleged affirmative defense, Lisa contends that it was not properly pled and, even if it was, it did not defeat her motion for summary judgment because an oral contract to make a will is not enforceable, as a matter of law, in Missouri. For the reasons stated, infra, we find that the alleged oral contract to make a will between Bennie and Alyce was unenforceable at law such that her affirmative defense was not viable as a matter of law.
Section 474.155 governs contracts to make a will and provides, in pertinent part, as follows:
A contract to make a will or devise, to revoke or not to revoke a will or devise, or to die intestate, if executed after January 1, 1981, can be established only by
(1) Provisions of a will stating material provisions of the contract;
(2) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
(3) A writing signed by the decedent evidencing the contract.
Section 474.155 provides for only three methods for establishing a contract to make a will. § 474.155; Wells v. Bryant , 782 S.W.2d 721, 723 (Mo. App. 1989). The statute applies only to such contracts entered into after January 1, 1981. Nolte v. Wittmaier , 977 S.W.2d 52, 58 (Mo. App. 1998). As such, contracts to make a will entered into after January 1, 1981, are enforceable only if one of the three provisions set forth in the statute is satisfied. Wells , 782 S.W.2d at 723.
Here, Bennie entered into a single premium life annuity contract with First Colony on June 18, 1993. The first annuity contract payment to him was made on July 15, 1993. He died on July 28, 1993. As such, if he entered into an oral contract with Alyce to make a will whereby he would devise to her the remaining payments due under the annuity contract in exchange for her care and support until his death, he had to have done so between the date he entered into the contract with First Colony on June 18, 1993, and the date of his death on July 28, 1993. Therefore, any contract to make a will between Bennie and Alyce was entered into after January 1, 1981, and, thus, § 474.155 applied. Nolte , 977 S.W.2d at 58. Since Bennie died intestate, the first two methods for establishing a contract to make a will under § 474.155 were precluded. As to the third method, in her response to Lisa's motion for summary judgment, Alyce strictly relied on her alleged oral contract with Bennie to make a will and never alleged that she possessed any writing signed by the decedent evidencing their contract. Thus, even assuming that Alyce's affirmative defense was sufficiently pled, under § 474.155 the alleged oral contract between Bennie and Alyce to make a will, which formed the basis for her defense was unenforceable, as a matter of law, § 474.155; Wells , 782 S.W.2d at 723, causing her affirmative defense to fail.
Alyce cites McVey v. Munzert (In re Estate of Munzert), 887 S.W.2d 764 (Mo. App. 1994), Osborn v. Boatmen's National Bank , 811 S.W.2d 431 (Mo. App. 1991), and Arrington v. Westport Bank , 577 S.W.2d 166 (Mo. App. 1979) for the proposition that oral contracts to make a will are enforceable in Missouri. However, in all three cases, the contracts in question were alleged to have been made before January 1, 1981, prior to which Missouri courts recognized oral contracts to make a will. See Osborn , 811 S.W.2d at 434-35; Bailey v. Cronin , 694 S.W.2d 518, 520 (Mo. App. 1985). However, as discussed, supra, § 474.155 changed the substantive law relating to how contracts to make a will were required to be established. In re Estate of Cates v. Brown , 973 S.W.2d 909, 915 n. 7 (Mo. App. 1998); Wells , 782 S.W.2d at 723. Thus, Alyce's reliance on these cases is misplaced.
In order to defeat Lisa's motion for summary judgment, Alyce raised only the issue of her affirmative defense. Thus, because Alyce's affirmative defense must fail as a matter of law, and Lisa established both proof elements of her petition for discovery of assets, the trial court did not err in sustaining Lisa's motion for partial summary judgment.
Point denied.
Lisa's Appeal
III. Did the Probate Court Have Subject Matter Jurisdiction to Award Punitive Damages in a Discovery of Assets Proceeding?
In her sole point on appeal, Lisa claims that the probate court erred in dismissing the claim for punitive damages for lack of subject matter jurisdiction because a probate court has jurisdiction in a discovery of assets proceeding, pursuant to § 473.340, to award punitive damages. Specifically, she claims that because a discovery of assets proceeding is similar to a common law action for conversion, which will support a claim for punitive damages, and § 473.340 does not expressly or implicitly exclude the right to recover punitive damages, then, even though a discovery of assets proceeding is strictly statutory in nature, punitive damages are recoverable in such a proceeding. We disagree.
The decision to dismiss a claim for lack of subject matter jurisdiction can arise in two ways.
First, the movant may allege that the pleadings fail to establish jurisdiction as a matter of law. In this situation the facts are stipulated, and the question of jurisdiction is purely one of law. Second, the movant may allege that certain conditions of jurisdiction do not exist, and thus raise a factual issue.
Parmer v. Bean , 636 S.W.2d 691, 694 n. 1 (Mo. App. 1982). In this case, the essential facts are undisputed. The issue is whether the probate court had jurisdiction in a discovery of assets proceeding to award punitive damages. This then is a question of law, which we review de novo, rather than for an abuse of discretion. Cook v. Polineni , 967 S.W.2d 687, 690 (Mo. App. 1998). A trial court's dismissal of a claim will be upheld if sustainable on any grounds. Meyer v. Steele (In re Estate of Webster ), 920 S.W.2d 600, 605 (Mo. App. 1996).
Even though a discovery of assets proceeding is similar to the common law actions of trover and conversion, it was not an action at common law. State ex rel. Knight v. Harman , 961 S.W.2d 951, 954 (Mo. App. 1998). It exists solely by reason of statute, specifically § 473.340, over which the probate court has original and exclusive jurisdiction. Chaney v. Cooper , 954 S.W.2d 510, 519 (Mo. App. 1997). Because the probate court is a court of limited jurisdiction and derives its jurisdiction only from statute such that it cannot act outside the authority granted to it by the General Assembly, Moore v. Campbell , 904 S.W.2d 378, 380 (Mo. App. 1995), the court's jurisdiction in a discovery of assets proceeding is limited to that as set forth in § 473.340. Brunig v. Humburg , 957 S.W.2d 345, 347 (Mo. App. 1997).
Lisa cites Overman v. Southwestern Bell Telephone Co. , 675 S.W.2d 419 (Mo. App. 1984), for the proposition that, because punitive damages were recoverable at common law for the tort of conversion, the right to recover them exists in a discovery of assets proceeding, unless § 473.340 expressly or implicitly excludes their recovery. The Overman court addressed the issue of whether a plaintiff suing pursuant to § 392.350, which governs a telecommunications company's liability for loss or damage, could recover punitive damages where § 392.350 did not expressly or implicitly exclude the right to recover them. Id. at 424. There, the court held that, when the right to recover punitive damages existed at common law and the statute in question neither expressly nor implicitly takes away that right, punitive damages are recoverable. Id. Thus, in Overman , because the court found that § 392.350 did not expressly or implicitly take away the right to recover punitive damages, it held that they were recoverable against the telecommunications company. Id.
Overman is distinguishable from the case at bar in that there the statute in question provided for a cause of action cognizable in a court of general jurisdiction. Section 473.340, on the other hand, provides for a cause of action cognizable only in the probate division of the circuit court, Chaney , 954 S.W.2d at 519, which is not a court of general jurisdiction. Moore , 904 S.W.2d at 380. And, as discussed, supra, because the probate court is a court of limited jurisdiction, it cannot act outside the authority granted it by the General Assembly. Id. Hence, unlike the proceeding pursuant to § 392.350 in Overman , in a discovery of assets proceeding the probate court only has that jurisdiction given to it by § 473.340. Id. As such, the issue for us to decide in determining whether the probate court had subject matter jurisdiction is whether § 473.340 expressly or implicitly authorizes the award of punitive damages in a discovery of assets proceeding.
In order to decide the issue presented, we necessarily must interpret § 473.340. In interpreting statutes to ascertain the intent of the General Assembly, we look to the language used, giving the words their plain and ordinary meaning. State ex rel. Riordan v. Dierker , 956 S.W.2d 258, 260 (Mo. banc 1997). The courts are without authority to read into a statute a legislative intent which is contrary to the intent made evident by the plain and ordinary language employed in the statute. Kearney Special Rd. Dist. v. County of Clay , 863 S.W.2d 841, 842 (Mo. banc 1993). When a word used in a statute is not defined, the plain and ordinary meaning of the word is derived from a dictionary. Missouri Ethics Comm'n v. Wilson , 957 S.W.2d 794, 799 (Mo. App. 1997). Courts can resort to rules of statutory construction only when the intent of the General Assembly cannot be ascertained from the plain language of the statute and it is ambiguous. Bosworth v. Sewell , 918 S.W.2d 773, 777 (Mo. banc 1996); Butler v. Mitchell-Hugeback, Inc. , 895 S.W.2d 15, 19 (Mo. banc 1995). When the intent of the General Assembly cannot be determined from the plain and ordinary meaning of the language used and the statute is ambiguous, it should be given a reasonable reading and construed in a manner consistent with the General Assembly's purpose in enacting it. Sullivan v. Carlisle , 851 S.W.2d 510, 512 (Mo. banc 1993).
Section 473.340 governs discovery of assets proceedings and provides, in pertinent part, as follows:
1. Any personal representative, administrator, creditor, beneficiary or other person who claims an interest in property which is claimed to be an asset of an estate or which is claimed should be an asset of an estate may file a verified petition in the probate division of the circuit court in which said estate is pending seeking determination of the title, or right of possession thereto, or both. The petition shall describe the property, if known, shall allege the nature of the interest of the petitioner and that title or possession of the property, or both, are being adversely withheld or claimed. The court may order the joinder, as a party, of any person who may claim an interest in or who may have possession of any such property.
. . .
3. Upon a trial of the issues, the court shall determine the persons who have an interest in said property together with the nature and extent of any such interest. The court shall direct the delivery or transfer of the title or possession, or both, of said property to the person or persons entitled thereto and may attach the person of any party refusing to make delivery as directed. If the party found to have adversely withheld the title or possession, or both, of said property has transferred or otherwise disposed of the same, the court shall render a money judgment for the value thereof with interest thereon from the date the property, or any interest therein, was adversely withheld. In addition to a judgment for title and possession, or either, or for the value thereof, the court may enter a judgment for all losses, expenses and damages sustained, if any, but not including attorney fees, if it finds that the property was wrongfully detained, transferred or otherwise disposed of.
The general purpose of the statute is to search for assets of the estate and to determine whether "'the decedent held title at his death to certain described property and [whether] this property is being adversely withheld [from the estate] by another person.'" Harman , 961 S.W.2d 954-55 ( quoting In re Estate of Mitchell , 610 S.W.2d 681, 684 (Mo. App. 1980)). "The remedy provided by the statute was intended to permit a person interested in the estate of the deceased to recover assets asserted to be wrongfully or 'adversely withheld or claimed' by another." Id. at 955 ( quoting § 473.340.1). In addition to a judgment for title and possession of the estate's asset, or for the value thereof, the statute expressly provides that the probate court has the jurisdiction to enter a judgment for "all losses, expenses and damages sustained." § 473.340.3. Lisa relies on the "all losses, expenses and damages sustained" language in the statute to argue that the probate court has jurisdiction in a discovery of assets proceeding to award punitive damages. There is no dispute that punitive damages are not losses or expenses. The question is whether they are "damages sustained."
WEBSTER'S NEW WORLD COLLEGE DICTIONARY 1349 (3 rd ed. 1997) defines the word "sustain" as: "to bear up against; endure; withstand . . . to undergo or suffer (an injury, loss, etc.)." Using this definition, we find that punitive damages are not "sustained." This is so in that, unlike compensatory damages, which are "awarded as compensation to [the] plaintiff for the injuries or loss sustained by him" and serve as compensation for actual injuries, Haynam v. Laclede Elec. Coop., Inc. , 889 S.W.2d 148, 153 (Mo. App. 1994) (emphasis added), the purpose of punitive damages is to inflict punishment and to serve as an example and a deterrent to similar conduct. Call v. Heard , 925 S.W.2d 840, 849 (Mo. banc 1996). Given the purpose of punitive damages, as opposed to compensatory damages, a party does not sustain them in the context of § 473.340.3. And, as such, we find that § 473.340.3 does not expressly or implicitly authorize the recovery of punitive damages in a discovery of assets proceeding such that the probate court did not err in dismissing the claim for punitive damages for Alyce's adverse withholding of annuity payments from the estate.
Point denied.
Conclusion
The partial summary judgment of the circuit court in favor of the estate on Lisa's discovery of assets petition and its order dismissing the claim for punitive damages are affirmed.
All concur.