Karen Finley, In her Capacity as Personal Representative of the Estate of Susan M. Finley and In her Capacity as Trustee of the Susan M. Finley Living Trust dated October 1, 2002 v. Steven R. Finley, and Cynthia D. Finley

• Court: Missouri Court of Appeals
• Decided: March 15, 2022
• Docket: ED109676
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION THREE KAREN FINLEY, IN HER CAPACITY AS ) No. ED109676 PERSONAL REPRESENTATIVE OF THE ) ESTATE OF SUSAN M. FINLEY AND IN ) Appeal from the Circuit Court of HER CAPACITY AS TRUSTEE OF THE ) St. Louis County SUSAN M. FINLEY LIVING TRUST ) Cause No. 18SL-CC03183 and DATED OCTOBER 1, 2002, ) 18SL-PR01711 ) Appellant, ) Honorable Ellen S. Levy ) vs. ) Filed: March 15, 2022 ) STEVEN R. FINLEY AND CYNTHIA D. ) FINLEY, ) ) Respondents. ) OPINION

This appeal arises from a dispute over the administration of the Susan M. Finley Living

Trust, dated October 1, 2002 (“Trust”). There is not yet a final judgment in this case, and we

must dismiss the appeal as premature.

I. Background

Susan Finley1 died on June 1, 2017, survived by her two children Karen Finley and

Steven Finley. Karen is the trustee of the Trust, which contains all of the assets of Susan’s estate.

Karen and Steven are the sole beneficiaries. In May of 2018, Steven filed a five-count petition

1 Because all of the parties have the same last name, we refer to them by their first names to avoid confusion. We mean no familiarity or disrespect.

1 against Karen regarding her handling of the Trust. He asserted that Karen: breached her fiduciary

duty by delaying administration of the Trust; was unfit to be the trustee and should be removed;

tortiously interfered with Steven’s expectation that he would receive half of Susan’s estate under

the Trust; was unjustly enriched by delaying administration of the Trust; and fraudulently

misrepresented the reasons for that delay. Steven sought various remedies: compensatory and

punitive damages, attorney’s fees, costs, removal of Karen and appointment of Steven as trustee,

an accounting, and an order compelling Karen to properly administer the Trust. In October of

2018, Karen filed a multi-count petition against Steven and his wife, Cynthia Finley, to recover

unpaid loan amounts allegedly owed to Susan’s estate. That case was transferred to the probate

division of the circuit court and consolidated with Steven’s case.

On January 7, 2019, a Memorandum of Understanding (“MOU”) was entered and filed,

signed by Karen, Steven, their attorneys and the trial court. The MOU stated “The parties agree

that they have reached an agreement settling all issues herein.” Among other terms distributing

various Trust assets, the parties agreed that Susan’s house, known as “Hargrove House,” would

be distributed to Karen at the value of $335,000.00. Paragraph 9 of the MOU stated: “Cash

distribution to Steve[n] of $167,500.00 in consideration of distribution of Hargrove House to

Karen.” The parties also expressly agreed that they “shall dismiss their respective claims herein,

with prejudice, upon satisfaction of all terms of settlement.”

On February 19, 2019, the trial court entered an order (“February Order”) after a motion

hearing at which the parties had agreed to amend certain terms of the MOU. Among other things,

the price of a farm to be sold under the MOU was amended and a provision was added stating

that the difference in price, $14,000.00, would be withheld “from other funds subject to

distribution pending resolution of allocation of said amount” and that “the parties reserve all

2 other issues for purposes of determining this allocation.” Except as amended thereby, the MOU

was “to remain in full force and effect.”

Despite the above agreements, discontent surrounding the distribution of assets persisted.

In the spring and summer of 2019, the parties filed the following motions: (1) Steven filed a

motion for sanctions, equitable relief, and accounting, alleging that Karen had not distributed the

Trust assets as required by the February Order and asking that Karen be sanctioned with payment

of his attorney’s fees and for an accounting; (2) Karen filed a counter motion for sanctions,

claiming that it was Steven--not Karen--who was violating the terms of the settlement agreement

set out in the MOU and February Order; (3) Steven filed another motion for sanctions, equitable

relief, and accounting, asserting that Karen continued to breach her fiduciary duties to the Trust

and asking the trial court to remove and replace Karen as trustee and award Steven fifty percent

of the Trust assets, his costs and attorney’s fees; (4) Karen filed another counter motion seeking

sanctions, alleging that Steven was trying to pursue the relief sought in his petition, which she

maintained was “no longer pending” as a result of the settlement agreement. The trial court held

an evidentiary hearing on these four pending motions. Due to what it described as the “wide

gamut” of relief requested in these motions, the trial court allowed in evidence pertaining to both

Karen’s handling of the Trust and to the existence and terms of any settlement agreement.

After the hearing, the trial court entered an Amended Order and Judgment on May 27,

2020 (“2020 Amended Judgment”). At the outset, the trial court recited the procedural history of

the litigation and the relevant terms of the MOU and February Order, noting that the parties had

agreed that $14,000.00 of the farm sale proceeds would be withheld “from other funds, subject to

distribution at a later date.” The trial court held that the MOU and February Order “are, and

continue to be, a binding settlement agreement enforceable against the parties.” The trial court

3 found an ambiguity in paragraph 9 of the MOU and resolved it by determining that the cash

distribution to Steven in consideration for Karen’s receipt of the Hargrove House should have

been paid from Karen personally or her share of Trust funds, not from the general Trust funds. It

entered judgment against Karen and in Steven’s favor for $83,750.00 (representing the amount

she had been unjustly enriched). “In all other respects, the relief sought in the parties’ respective

motions is denied.” The trial court specifically declined to sanction either party “at this time.”

Karen filed a motion to amend or vacate the 2020 Amended Judgment, which was denied on

August 28, 2020.

Steven sought to hold Karen in contempt of the 2020 Amended Judgment. Karen filed a

motion asking the trial court to (1) hold a hearing on and determine how the $14,000.00 should

be allocated and distributed, (2) dispose of the underlying claims by the parties raised in their

pleadings, and (3) enter a final judgment in this case under Rule 74.01 disposing of all claims

and issues, leaving nothing for future determination. After a hearing on these motions, the trial

court entered an order denying Steven’s motion for contempt without prejudice, stating that the

2020 Amended Judgment was “a final determination of the issues before it” and that the

settlement agreement governed “the allocation and distribution of any remaining trust assets.”

“Further, the parties agreed to dismiss their claims, with prejudice, upon satisfaction of all terms

of settlement.” The trial court agreed to schedule a hearing on the $14,000.00 issue.

After that hearing, the trial court entered an Order and Consent Judgment on May 25,

2021 (“2021 Consent Judgment”). The trial court found that the settlement agreement did not

actually require the trial court to allocate the $14,000.00 and, in fact, by the time of the hearing

the parties had already agreed to a fifty-fifty allocation. Therefore, the trial court granted Karen’s

motion only “as to the entry of the parties’ consent allocation of the $14,000.00,” and the

4 remainder of her motion was denied. That is, the trial court did not grant Karen’s request to

dispose of the parties’ underlying claims or enter a final judgment under Rule 74.01. The court

also denied another motion by Steven to hold Karen in contempt of the 2020 Amended

Judgment.

The day after the 2021 Consent Judgment, Karen filed a notice of appeal of the 2020

Amended Judgment, claiming the trial court erred in its interpretation of paragraph 9 of the

MOU. Shortly thereafter, she voluntarily dismissed her petition against Steven and Cynthia.

Steven’s petition against Karen has not been dismissed.

Steven has filed a motion to dismiss this appeal. We agree the appeal must be dismissed,

but not for the reasons stated in the motion.

II. Discussion

To be final and appealable, a judgment must dispose of all parties and all issues in the

case and leave nothing for further determination. Hidritch-Hamann v. Hidritch, 420 S.W.3d 671,

674 (Mo. App. E.D. 2014). Karen contends that because the 2020 Amended Judgment did not

allocate or distribute the $14,000.00, it did not become final until that issue was resolved in the

2021 Consent Judgment. Steven claims that the 2020 Amended Judgment did distribute the

$14,000.00 and that judgment became final on September 7, 2020 (ten days after the post-

judgment motion was denied), meaning this appeal is untimely. But irrespective of when the

$14,000.00 issue was resolved, the 2020 Amended Judgment is still not final for purposes of

appeal.

A judgment enforcing a settlement agreement cannot be deemed final for purposes of

appeal until all of the underlying claims are dismissed. See id.; Bauman v. Monia, 905 S.W.2d

127, 128 (Mo. App. E.D. 1995); see also generally Southwest Parts Supply, Inc. v. Winterer, 360

5 S.W.3d 349, 352-53 (Mo. App. E.D. 2012). Enforcement of a settlement is an action collateral to

the underlying lawsuit and, therefore, not a judgment on the claims in that suit. See St. Louis

Union Station Holdings, Inc. v. Discovery Channel Store, Inc., 272 S.W.3d 504, 505 (Mo. App.

E.D. 2008). Appeal from a judgment enforcing a settlement agreement, prior to dismissal of the

underlying claims, is premature and must be dismissed. See id.; see also Bauman, 905 S.W.2d at

128.

In this case, although the relief requested in the parties’ motions was broad, the only

relief granted by the 2020 Amended Judgment was interpretation and enforcement of the terms

of the settlement agreement. The remaining relief requested in the motions was denied

summarily. While some of the relief sought and allegations regarding Karen’s conduct in

Steven’s motions were similar to the allegations and relief sought in his petition, the trial court’s

summary denial of those motions cannot be fairly characterized as a final disposition of each of

the five counts in Steven’s petition. Rather, none of the claims in either party’s petition were

dismissed or otherwise disposed of in the 2020 Amended Judgment.

Nor was there a disposition of any of those underlying claims in the later 2021 Consent

Judgment. In fact, in that judgment, the trial court expressly denied Karen’s request to dispose of

the parties’ claims and enter a judgment finally disposing of all the issues. As the trial court had

pointed out in earlier rulings, the parties agreed in the MOU to “dismiss their respective claims

herein, with prejudice, upon satisfaction of all terms of settlement.” This settlement agreement,

Karen correctly points out, is an “accord executory, i.e. an agreement to release an existing claim

upon performance.” Bauman, 905 S.W.2d at 129. An accord executory suspends the underlying

claims until such time as the agreement is performed, and the matter remains before the trial

court until those claims are dismissed. Id. Although Karen has voluntarily dismissed her petition-

6 -albeit not “with prejudice” as the MOU specifies--no such dismissal of Steven’s petition appears

in the record. Until the claims in that petition are dismissed, an appeal from the 2020 Amended

Judgment is premature.

This appeal is premature even if the distribution of the $14,000.00 had already been

resolved in the 2020 Amended Judgment, as Steven contends. That judgment still could not have

been deemed final for purposes of appeal in September of 2020 because none of the underlying

claims in the parties’ petitions had been dismissed or otherwise disposed of at that time. In short,

even if Steven is correct about the scope of issues decided by the 2020 Amended Judgment, the

appeal is still not too late, it is too early.

For similar reasons, we find no merit to Steven’s contention that without an express order

continuing judicial supervision over the Trust, the trial court “lost jurisdiction” after the 2020

Amended Judgment and the loss of jurisdiction renders that judgment final and appealable. His

reliance on Wiss v. Spitzmiller, 425 S.W.3d 157 (Mo. App. S.D. 2014) for this proposition is

misplaced. In Wiss, the trial court entered a judgment incorporating a settlement agreement that

expressly disposed of the underlying petition; this was deemed by the appellate court to be a

denial of the plaintiff’s request in that petition to remove trustees. Id. at 164, 165.2 Because the

trial court in Wiss did not state that it was continuing its judicial supervision over the trust, it had

no jurisdiction to issue a subsequent order--wholly inconsistent with the original judgment

2 For similar reasons, we disagree with Karen’s claim at oral argument that McKean v. St. Louis County is precedent for exercising appellate jurisdiction over this appeal. In McKean, this Court rejected an argument that the plaintiff had to bring a separate action to enforce his settlement agreement with one of the defendants and held that a motion to compel is a proper method to enforce a settlement agreement in an action that still has claims pending at the time the motion is filed. 964 S.W.2d 470, 471 (Mo. App. E.D. 1998). We noted on appeal that the judgment enforcing the settlement agreement was final and appealable because all the parties had been “disposed of.” Id. at 470 n.1 (citing the first appeal, 936 S.W.2d 184, 186 (Mo. App. E.D. 1996), which was dismissed for lack of a final judgment because the claims against the non-settling defendant were still pending). In other words, in McKean, the underlying cause of action was pending at the time the motion to compel was filed but by the time of the appeal that action had been “disposed of” with respect to all parties. There is no such disposition of Steven’s cause of action yet in this case.

7 denying such relief--removing a trustee. Id. at 165 (citing § 456.2-201 of the Uniform Trust

Code, under which a party may invoke the jurisdiction of a court to intervene in the

administration of a trust, but the trust “is not subject to continuing judicial supervision unless

ordered by the court”). Here, the 2020 Amended Judgment did not incorporate the settlement

agreement, which merely suspended--not disposed of--the underlying claims. See Bauman, 905

S.W.2d at 129. That is, neither the settlement agreement nor the judgment enforcing it ruled on

the relief requested in Steven’s petition. In any event, Wiss does not suggest that the lack of an

express order “continuing judicial supervision” in the 2020 Amended Judgment would render

that judgment final and appealable in this situation. Rather, that case speaks only to what effect

the lack of such an order has on a trial court’s jurisdiction to issue subsequent rulings about a

trust after a final judgment.

We dismiss this appeal sua sponte for the reasons stated herein, and not for the reasons

stated in Steven’s motion to dismiss.3 That motion is denied. Because there is not yet a final and

appealable judgment, we have no jurisdiction to address Steven’s requests for attorney’s fees. 4

See Eastern District Local Rule 400 (“Any party claiming an amount due for attorney’s fees on

appeal pursuant to contract, statute or otherwise and which the court has jurisdiction to consider,

must do so before submission of the cause”) (emphasis added).

3 At the end of her rebuttal at oral argument, Karen requested that if we determine there is no final appealable judgment, we should issue a writ instead to correct the trial court’s alleged error in construing paragraph 9 of the MOU. There are limited circumstances in which we may treat an improper appeal as an application for an original writ. See generally State v. Larson, 79 S.W.3d 891, 893–94 (Mo. banc 2002). But Karen has not articulated what circumstances warrant that result here, except to assert that the case would remain “in limbo” if the appeal was dismissed because, she claims, there is nothing left for the trial court to do. Because this issue has not been fully developed--and Steven had no opportunity to respond to it--we decline to address the propriety of issuing a writ in this case at this time.

4 In his brief, Steven requested that his attorney’s fees and costs be paid by Karen individually pursuant to the Uniform Trust Code, § 456.10-1004, and that the Trust be barred from paying Karen’s attorney’s fees and costs associated with this appeal.

8 III. Conclusion

The appeal is dismissed.

_______________________________ Colleen Dolan, J.

Philip M. Hess, P. J., concurs. Angela T. Quigless, J., concurs.