In the Matter of Estate of: Raymond Klauber, Incapacitated/Disabled. Clayton House Health Care, Claimant/Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: In the Matter of Estate of: Raymond Klauber, Incapacitated/Disabled. Clayton House Health Care, Claimant/Appellant. Case Number: ED77524 Handdown Date: 11/14/2000 Appeal From: Circuit Court of St. Louis County, Hon. Mark D. Seigel Counsel for Appellant: Thomas D. Weaver, Cynthia A. Sciuto and Marshall R. Hoekel Counsel for Respondent: Thomas S. Arras and Douglas L. Levine Opinion Summary: Claimant appeals from a circuit court judgment dismissing its claim filed in the Estate because it was deemed dismissed with prejudice in a prior action pursuant to section 510.150 RSMo 1994. REVERSED AND REMANDED. Division One holds: Creditor was entitled to re-file its claim and have it heard by the probate court in that: (1) Rule 41.04 provides that Rule 67.03 is applicable to probate proceedings; (2) Rule 41.04 also deems that Rule 67.03 supercedes section 510.150 RSMo 1994; and (3) Rule 67.03 provides that involuntary dismissal orders are without prejudice. Citation: Opinion Author: Mary Rhodes Russell, Judge Opinion Vote: REVERSED AND REMANDED. R. Dowd, P.J., and Teitelman, J., concur. Opinion: Clayton House Health Care ("Claimant") appeals from a judgment, dismissing its claim filed in the Estate of Raymond Klauber ("Estate"), entered by the Circuit Court of St. Louis County, Probate Division. We reverse and remand in that the dismissal of the claim in a prior action was without prejudice.

Claimant initially filed its claim of $25,799.53 in the Estate, but it was dismissed for failure to prosecute. The probate court's judgment did not designate whether the dismissal was with or without prejudice. Thereafter, Claimant re-filed its claim. The conservator of the estate filed a motion to dismiss the claim, arguing it was barred by section 510.150 RSMo 1994,(FN1) which provides that "any involuntary dismissal other than one for lack of jurisdiction or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify." Claimant argued the claim could be heard as a rule of civil procedure, specifically Rule 67.03, supercedes an inconsistent statute and deems an involuntary dismissal to be without prejudice unless the court specifies otherwise in its judgment of dismissal. The probate court sustained the motion to dismiss the claim. Claimant now appeals. Claimant's sole point on appeal charges the probate court with error in sustaining the motion to dismiss because the claim was not barred by the probate court's prior dismissal, as the prior dismissal was without prejudice pursuant to Rule 67.03. Upon review of an action sustaining a motion to dismiss, we will affirm the dismissal if it can be sustained on any ground stated in the motion regardless of whether the trial court relied on that ground. Kennedy v. Microsurgery & Brain Research Inst., 18 S.W.3d 39, 43 (Mo. App. 2000). We must first determine whether the involuntary dismissal for failure to prosecute was with or without prejudice, as the probate court did not so specify in its dismissal. There is an inconsistency between the rules of civil procedure and the statutes on this issue. Rule 67.03 provides: "[a]ny involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify." On the other hand, section 510.150 states: "any involuntary dismissal . . . shall be with prejudice unless the court in its order for dismissal shall otherwise specify." Conflicts between the rules and statutes are resolved by Rule 41.02. This rule provides that Rules 41 to 101 supercede all inconsistent statutes and court rules. Thus, if analysis were to end here, then Rule 67.03 would supercede section 510.150 and the dismissal would be without prejudice, thereby allowing Claimant to re-file its claim. It is, however, necessary to determine whether Rule 67.03 is applicable to probate proceedings. Rule 41.01(b) sets out a list of rules expressly applicable to proceedings in the probate court. Rule 67 is not included in this list. Although Rule 41.01(b) allows a probate judge to order any of the excluded rules to be applicable in a particular matter, the probate judge did not order Rule 67.03 to be applicable here. Estate cites to three cases, specifically Kemp v. Balboa, 959 S.W.2d 116 (Mo. App. 1997), Estate of Brown v. Gillespie, 955 S.W.2d 940 (Mo. App. 1997), and Estate of Ewing v. Bryan, 883 S.W.2d 545 (Mo. App. 1994), for the

proposition that rules not specifically listed in Rule 41.01 are inapplicable in probate proceedings. This appeal, however, presents a situation that is factually different from the cases cited by Estate. None of these cases involved a conflict between a statute and a rule of civil procedure. Here, we are presented with a conflict between Rule 67.03 and section 510.150. Rule 41.04, one of the rules listed in Rule 41.01(b) as applicable to probate proceedings, is instructive on the conflict between Rule 67.03 and section 510.150. Rule 41.04 provides: If no procedure is specially provided by rule, the court having jurisdiction shall proceed in a manner consistent with the applicable statute, or statutes, if any, and precedent but not inconsistent with Rules 41 to 101, inclusive. This rule mandates that courts apply the applicable statutes, but not to the extent they are inconsistent with Rules 41 to 101 inclusive. To the extent section 510.150 conflicts with Rule 67.03, the statute cannot be applied to this proceeding. We, therefore, apply Rule 67.03 to determine whether the court's dismissal is with or without prejudice. In Re Estate of Johnson v. Clement, 912 S.W.2d 560, 561 n.4 (Mo. App. 1995). Application of Rule 67.03 makes the court's dismissal of Claimant's first claim without prejudice. A dismissal without prejudice allows Claimant to re-file its claim and have it heard by the probate court. The probate court erred in dismissing Claimant's re-filed claim. Point granted. The judgment of the probate court is reversed and remanded. Footnotes: FN1.All further statutory references are to RSMo 1994 unless otherwise indicated. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.