ESTATE OF HARDIN v. DIETRICH (2026)

Dawn Hardin (“Dawn”)¹ appeals from the order of the probate division of the Circuit Court of Gentry County (“probate court”) dismissing her petition for discovery of assets with prejudice. The probate court found that Dawn had previously filed a petition for discovery of assets, and the present petition was “seeking to relitigate issues that were or could have been raised in the prior petition.” The probate court determined that Dawn was thus estopped from proceeding on her second petition. This was error. Accordingly, we reverse the order of the probate court and remand this matter for further proceedings consistent with this opinion.

Background

This is an appeal from the dismissal of a petition for discovery of assets. A discovery of assets action is a statutory proceeding brought pursuant to section 473.340, RSMo, which provides that any “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.” § 473.340.1.² “The purpose of an action to discover assets is to determine title to the property and whether it passes to the heirs of the [decedent] or whether it was improperly paid into the estate.” Chaney v. Cooper, 954 S.W.2d 510, 519 (Mo. App. W.D. 1997); see also Estate of Williams v. Bauman, 660 S.W.3d 658, 664 (Mo. App. W.D. 2023) (“A discovery of assets action ․ is a search for assets owned by the decedent at his death,” and one purpose of such action “is to determine whether a piece of property has been concealed, embezzled, or wrongfully withheld from the estate.”). Accordingly, section 473.340 directs that, “[u]pon 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,” and “shall direct the delivery or transfer of the title or possession, or both, of said property to the person or persons entitled thereto ․” § 473.340.3.

Turning to the facts of this case, Dawn and Darrell Hardin (“Decedent”) were married in 2014. On September 16, 2022, Decedent died intestate. Dawn filed an application for letters of administration of Decedent's estate. Dawn's application listed the heirs of Decedent as herself and his five sons. The probate court did not grant Dawn's application, and instead appointed a third party as personal representative (“Personal Representative”) to administer Decedent's estate.

In March 2024, Personal Representative filed an inventory of Decedent's property. Included in that inventory were 31items of farm equipment with a combined total value of $156,132. On November 21, 2024, the probate court held a hearing. Present at that hearing were Dawn, Personal Representative, and two of Decedent's family members (“Family Members”). At the conclusion of the hearing, Personal Representative notified the probate court that he intended to file a petition to sell Decedent's property via an auction. Family Members’ attorney stated to the probate court, “When that petition comes in, we have no objection to the Court signing the appropriate order without a hearing.” The probate court asked Dawn's counsel, “Do you want to have a hearing or do you approve of me signing that once that comes in?” Counsel responded, “No hearing required, Your Honor.” That same day, Personal Representative filed a Petition for Order to Sell Personal Property, requesting an order authorizing him to sell the 31 items of farm property. On November 26, 2024, the probate court entered an order authorizing the sale of the farm property.

On December 3, 2024, Dawn filed a motion to reconsider the order to sell Decedent's property. She asserted that certain items of farm equipment listed in the order “were bought in the term and course of the marriage, and therefore would have been marital property,” and that “[a]s such marital property was owned by tenancy in the entirety, it should not be part of the decedent estate and would be the sole property” of Dawn.³ She requested a hearing to “elicit testimony and evidence of the nature of ownership of the disputed property.” She further stated that “a Petition for Discovery of Assets is forthcoming ․ which will require a hearing to resolve.”

One week later, Dawn filed a petition for discovery of assets against Family Members; Personal Representative was not named as a respondent to her petition. Dawn listed various items of farm equipment that she alleged belonged to Decedent during his lifetime and which were unlawfully obtained and being withheld by Family Members, who were claiming the property as theirs and not Decedent's. Dawn “incorporate[d] by reference” her motion to reconsider the order to sell property. She requested the probate court “discover the personal property belonging to the decedent, determine the title and right of possession thereto, determine the persons who have an interest in said property together with the nature and extent of such interest and direct the delivery or transfer of said property to [Personal Representative] and render judgment in favor of [Personal Representative] for all losses, expenses and damages, including interest, as provided by law and for such other relief as is just and proper.”

Personal Representative filed a motion to dismiss Dawn's petition for discovery of assets pursuant to “Rule 55.27(a)(6) and (7) for the following reasons: 1. [Dawn's] Petition for the Discovery of Assets fails to state a claim upon which relief can be granted against the Estate of [Decedent]. 2. That [Dawn] has failed to join the Estate of [Decedent] as a necessary party under Rule 52.04.”⁴

Dawn filed a motion to amend the inventory, again claiming that several items of marital property were incorrectly included in the inventory of Decedent's estate, and asserting that “[n]o bad faith [was] intended by the motion to amend, as [Dawn] was unaware of the complexities of tenancy in the entirety, and estate inventories.” She listed the items that she contended were marital property and stated she “ha[d] exhibits demonstrating the ownership of the above listed items as being marital property.” She requested the probate court enter an order requiring Personal Representative to amend the inventory.

On April 4, 2025, the probate court held a hearing on “multiple motions.” The probate court's docket entry stated that Dawn's motion to reconsider the order to sell property and motion to amend the inventory were denied, and Personal Representative's motion to dismiss Dawn's petition for discovery of assets was granted. The trial court did not provide any reasoning for its rulings, nor did it denote whether the dismissal of Dawn's petition for discovery of assets was with or without prejudice.

On June 6, 2025, Personal Representative filed a motion for contempt, alleging Dawn was refusing to grant Personal Representative access to the estate's personal property and her actions were hindering the auction that was scheduled for June 21st. After a hearing, the probate court entered an order finding Dawn in civil contempt and ordering her to provide Personal Representative and his agents unimpeded access to the estate property.

Dawn retained new counsel, and on June 19th, she filed a motion for an emergency temporary restraining order, seeking to stop the auction on the grounds that she was the rightful owner of some of the property that was slated to be sold at the auction (again, because it was marital property). She also filed a petition for discovery of assets against Personal Representative. In this petition, she asserted that certain items listed in the inventory were marital property that she owned with Decedent; that upon Decedent's death, Dawn became the sole owner of those items and they were not, therefore, assets of Decedent's estate; and that possession of these items was being adversely withheld by Personal Representative who claimed them as assets of the estate. Dawn requested a jury trial pursuant to section 473.340.2 (“Any party may demand a jury trial.”).

The following day, the probate court denied Dawn's motion for a temporary restraining order, finding “[a]ll the issues/arguments raised in the motion have already been addressed.”

Thereafter, Personal Representative filed a motion to dismiss Dawn's second petition for discovery of assets. Personal Representative asserted that, Dawn's first petition for discovery of assets incorporated her motion to reconsider the order to sell property, and thus included her claim that she was the rightful owner of certain items of property listed in the inventory because they were marital property. Personal Representative asserted that Dawn's second petition for discovery of assets was “an attempt to re-file the same claim, to the same assets that she previously asserted” in her prior petition. Personal Representative contended that the probate court's “order dismissing [Dawn's prior petition] disposed of all of [her] claims to these assets, and she should be barred from bringing another action for the same cause.”

On August 18, 2025, the probate court entered an order granting Personal Representative's motion to dismiss. The probate court found Dawn “previously filed a Petition for Discovery of Assets in this estate, which was adjudicated by this Court,” and Dawn “has now filed a Second Petition for Discovery of Assets, seeking to relitigate issues that were or could have been raised in the prior petition.” The probate court concluded that, as a result, Dawn was “estopped from proceeding on the Second Petition for Discovery of Assets,” and dismissed her second petition with prejudice.

Dawn appeals, asserting the probate court erred in dismissing her second petition for discovery of assets on estoppel grounds (Point I). She further contends the probate court erred in dismissing her second petition in that it “adequately state[d] a claim for which relief may be granted” (Point II).

Jurisdiction

Before reaching the merits of Dawn's appeal, we must address our own jurisdiction. Generally, this Court only has jurisdiction to hear timely appeals from final judgments. See Zeller v. Scafe, 455 S.W.3d 503, 505 (Mo. App. W.D. 2015) (“Generally, an appellate court only has jurisdiction over final judgments disposing of all issues and parties, which leave nothing for future determination.”); Backer v. Backer, 705 S.W.3d 632, 641 (Mo. App. W.D. 2024) (“Absent a final judgment and timely notice of appeal, we are without appellate jurisdiction.”).

However, the right to appeal a determination of the probate court is purely statutory and is governed by section 472.160, which provides, in relevant part:

Any interested person aggrieved thereby may appeal to the appropriate appellate court from the order, judgment or decree of the probate division of the circuit court in any of the following cases:

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(5) On all orders for the sale of assets of the probate estate;

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(14) In all other cases where there is a final order or judgment of the probate division of the circuit court under this code except orders admitting to or rejecting wills from probate.

§ 472.160.1. Section 472.160.1 creates “an expedited right to appeal certain probate orders which otherwise would be interlocutory” and not subject to appeal until final disposition of the matter, namely those orders listed in subdivisions (1) through (13). In re Kraus, 318 S.W.3d 274, 276-78 (Mo. App. W.D. 2010). A party may appeal one of these interlocutory orders within ten days of the probate court's ruling. Id. at 277.

Final orders or judgments of the probate court are appealable pursuant to subdivision (14). “An order dismissing a discovery of assets petition in a probate proceeding is appealable under § 472.160.1(14),” as it is a final order or judgment of the probate court. Estate of Williams, 660 S.W.3d at 661; see also In re Estate of Clark, 83 S.W.3d 699, 702 (Mo. App. W.D. 2002) (“[T]he Order of Dismissal was final, for purposes of appeal, because it disposed of all claims and issues in the discovery of assets proceeding․ The fact that decedent's estate remains pending does not affect the finality of the order dismissing [the appellant's] Petition for Discovery of Assets.”).

Here, Dawn appeals a final order ⁵ dismissing her second petition for discovery of assets with prejudice. This order is appealable under section 472.160.1(14), and Dawn timely filed her notice of appeal the day after the probate court entered its order of dismissal.

Nonetheless, Personal Representative asserts we do not have jurisdiction to hear this appeal. He contends that we lack jurisdiction due to Dawn's failure to timely appeal the probate court's April 4, 2025 order, which denied her motion to reconsider the order to sell property and motion to amend the inventory, and granted Personal Representative's motion to dismiss her first petition for discovery of assets. Personal Representative asserts “all of these proceedings involved ‘orders for sale of assets of the probate estate,’ ” and thus were appealable under section 472.160.1(5). Personal Representative contends that Dawn was required to appeal that order by April 14, 2025, she failed to do so, and therefore she is “barred from filing this appeal as being untimely,” because this appeal involves the same matters as those which were litigated and resolved by the April 4, 2025 order.

Contrary to Personal Representative's claim, Dawn was not required to file her notice of appeal by April 14, 2025. She is not appealing the denial of her motion to reconsider the order to sell property or her motion to amend the inventory. And even if she were, she still would not be required to appeal by April 14, 2025. “Section 472.160 only creates a right of appeal, and the immediate appeal of orders encompassed by the statute is not mandatory ․” In re Claypoole, 718 S.W.3d 448, 457 n.8 (Mo. App. W.D. 2025). The failure to file an interlocutory appeal does not preclude the appellant from obtaining review of the order upon final settlement or other judicial action fully and finally disposing of the proceeding. Id.; see also In re Kraus, 318 S.W.3d at 278 (“If a party chooses not to exercise this right [of interlocutory appeal], the particular matter may be appealed following the final settlement or other judicial action fully and finally disposing of the proceeding.”).

Dawn is also not appealing the dismissal of her first petition for discovery of assets against Family Members; she elected not to appeal that dismissal. Rather, she is appealing the dismissal of her second petition for discovery of assets against Personal Representative. As discussed more fully in our analysis, the petitions asserted different claims involving different items of property against different parties. Therefore, Dawn is not attempting to appeal the same matter that was resolved by the dismissal of her first petition for discovery of assets.

For these reasons, we conclude we have jurisdiction to hear this appeal.

Point I

Standard of Review

The probate court dismissed Dawn's second petition for discovery of assets on the ground that she was “seeking to relitigate issues that were or could have been raised in the prior petition,” and thus she was “estopped from proceeding” on the second petition. “We review de novo whether a claim was barred by ․ collateral estoppel as a matter of law.” Malin v. Cole Cnty. Prosecuting Att'y, 678 S.W.3d 661, 678-79 (Mo. App. W.D. 2023).

Analysis

In her first point, Dawn asserts the probate court erred by dismissing her petition for discovery of assets against Personal Representative, in that her prior petition against Family Members, which “was dismissed without prejudice[⁶ ] for failure to add the estate as a necessary party, did not estop [her] from filing a separate petition for discovery of assets against the Personal Representative.” We agree.

“Collateral estoppel, or issue preclusion, precludes parties from relitigating issues that have already been decided.” Malin, 678 S.W.3d at 679. A party is collaterally estopped from litigating an issue if: “(1) the issue decided in the prior adjudication was identical to the issue presented in the present action; (2) the prior adjudication resulted in a judgment on the merits; (3) the party against whom estoppel is asserted was a party or was in privity with a party to the prior adjudication; and (4) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit.” Id. Collateral estoppel does not bar the litigation of issues that could have been, but were not, raised in the prior action. See Olofson v. Olofson, 625 S.W.3d 419, 428 (Mo. banc 2021) (Collateral estoppel “operates only as to issues previously litigated but not as to matters not litigated in the prior action though such might properly have been determined”; in this respect, collateral estoppel differs from res judicata, which precludes relitigation of any claim “which the parties, exercising reasonable diligence, might have brought forward at the time.”).

Dawn was not estopped from proceeding on her second petition for discovery of assets. Her first petition was brought against Family Members, and alleged they were wrongfully withholding certain items of property that belonged to Decedent. Personal Representative moved to dismiss that petition on two grounds: the petition failed to state a claim upon which relief could be granted against the estate, and Dawn failed to join the estate as a necessary party.⁷ The probate court granted the motion and dismissed the first petition. Dawn subsequently filed a second petition, this time against Personal Representative, asserting he was wrongfully withholding items of her property—different items than those involved in her first petition ⁸ —and claiming they were property of the estate. Thus, the two petitions involved different items of property, that were alleged to be wrongfully withheld by different parties, and sought different recovery: the first petition alleged that certain property should be included in Decedent's estate, whereas the second petition alleged other property should be removed from the estate. It was error for the probate court to dismiss Dawn's second petition on the ground that the issues raised had already been litigated in the first petition. And it was also error for the probate court to dismiss the second petition on the ground that Dawn was seeking to relitigate issues that “could have been raised in the prior petition.” See Olofson, 625 S.W.3d at 428 (Collateral estoppel “operates only as to issues previously litigated.”).

Personal Representative's argument on appeal to the contrary is unavailing. Personal Representative contends “the parties and claims in the second petition for discovery of assets were the same” as in the first, pointing to the fact that Dawn incorporated her motion to reconsider the order to sell property into her first petition, and asserting he was a party to that motion. However, this position is wholly inconsistent with the one Personal Representative took in his motion to dismiss the first petition, in which he sought dismissal for failure to join the estate (i.e., Personal Representative) as a necessary party. Personal Representative cannot argue both that the first petition should have been dismissed because he was a necessary party who had not been joined, and—as he does on appeal—that he was a party to the first petition and thus Dawn should have been estopped from again bringing a claim against him in the second petition. See Vacca v. Mo. Dep't of Lab. & Indus. Rels., 575 S.W.3d 223, 235 (Mo. banc 2019) (the doctrine of judicial estoppel prevents a party from taking a position truly inconsistent from one the party took in an earlier proceeding).

Finally, we address the probate court's cited legal authority for its conclusion that Dawn was estopped from proceeding on her second petition. The probate court stated:

Missouri law, including Estate of Williams v. Bauman, 660 S.W.3d 658 (Mo. App. W.D. 2023), holds that the doctrines of finality and estoppel prevent a party from circumventing statutory appeal procedures by filing successive petitions for discovery of assets raising the same or substantially similar issues.

The probate court misstates the holding of Estate of Williams.

In Estate of Williams, the estate of the decedent filed a petition for discovery of assets against five defendants; they moved to dismiss the petition on the basis that it failed to state a claim upon which relief could be granted. 660 S.W.3d at 660-61. The probate court granted the motion and dismissed the petition. Id. at 661. Because the probate court did not specify otherwise, the dismissal was without prejudice pursuant to Rule 67.03. Id. Petitioner appealed. Id. Defendants contended on appeal that this Court lacked jurisdiction because the dismissal was without prejudice and thus there was no final judgment. Id. We disagreed, finding that because the petitioner chose to stand on the allegations of its original petition and appeal, rather than file an amended petition, the dismissal order was final and we had jurisdiction to review it. Id. at 662-63.

Estate of Williams did not involve successive petitions for discovery of assets, nor did we suggest in Estate of Williams that filing successive petitions was improper.⁹ And our only reference to “estoppel” was the following quotation from Meyers v. Kendrick, 529 S.W.3d 54, 57 n.2 (Mo. App. S.D. 2017): “The judgment is final because the plaintiffs’ decision to stand on their petition as filed and to appeal, rather than bring another action, estops the plaintiffs from bringing another action in the future for the same cause.” (internal marks omitted). Here, Dawn did not stand on the allegations of her first petition and appeal that dismissal; instead she filed a second petition raising a different claim than that raised in her first petition. We find no support in Estate of Williams for the conclusion that Dawn was estopped from filing her second petition.

For these reasons, we conclude the probate court erred in dismissing Dawn's second petition for discovery of assets. Point I is granted.

Point II

In her second point, Dawn asserts the probate court erred in dismissing her second petition, in that the petition adequately stated a claim upon which relief could be granted. Personal Representative did not move for dismissal of the second petition on the basis that it failed to state a claim, nor did the probate court dismiss the second petition on this basis. Because the probate court did not determine the adequacy of the allegations in Dawn's second petition, we need not review this issue. See Amesquita v. Gilster-Mary Lee Corp., 408 S.W.3d 293, 305 (Mo. App. E.D. 2013) (“Because Plaintiffs raise on appeal an issue not decided by the trial court, we deny Point III”).¹⁰

Point II is denied.

Conclusion

We reverse the order dismissing Dawn's second petition for discovery of assets, and remand this matter to the probate court for further proceedings consistent with this opinion.

FOOTNOTES

1.   Because many of the individuals involved in this litigation share a last name, we refer to Dawn by her first name. No disrespect or familiarity is intended.

2.   All statutory references are to RSMo 2016.

3.   “Tenancy by the entirety” is “a form of ownership that is created by marriage in which each spouse owns the entire property, rather than a share or divisible part.” Estate of Williams, 660 S.W.3d at 665. “It is based on a legal fiction that the husband and wife own the property jointly as a single person.” Id. “Together, each has an undivided interest.” Id. “When one of the spouses dies, the surviving spouse becomes the property's sole owner by virtue of being owner of 100 percent of the property.” Id.

4.   Not all civil rules are applicable in probate proceedings. Rule 41.01(b) specifies which rules are applicable; Rules 55.27 and 52.04 are not included in this list.

5.   “The requirement of Supreme Court Rule 74.01(a) that a document from which an appeal is taken must be labeled ‘judgment’ does not apply to appeals from probate proceedings.” In re Estate of Schneider, 570 S.W.3d 647, 653 n.4 (Mo. App. W.D. 2019).

6.   Dawn's first petition for discovery of assets was dismissed without prejudice because the probate court's dismissal order did not specify whether the dismissal was with or without prejudice. See Rule 67.03 (“Any involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify.”); see also Estate of Williams, 660 S.W.3d at 661-62 (“Because the circuit court's dismissal order does not ‘otherwise specify,’ its dismissal of [the petition for discovery of assets] was without prejudice under Rule 67.03,” which applies to probate proceedings pursuant to Rule 41.01(b)).

7.   “A decedent's estate is not a legal entity; it cannot sue or be sued as such, and thus acts through its personal representative.” Meyer v. Carson & Coil, 614 S.W.3d 618, 622 n.4 (Mo. App. W.D. 2020) (internal marks omitted). Thus, the motion to dismiss for failure to add the estate as a necessary party was for all intents and purposes a motion to dismiss for failure to add the personal representative as a necessary party.

8.   By way of example, Dawn's second petition alleged Personal Representative was wrongfully withholding a “Vermeer bale processor,” a “Komatsu D205 Dozer,” and an “Allis Chalmers D-14 Tractor” that belonged to Dawn. None of these items were included in the first petition.

9.   We note that section 473.340 contains no provision barring successive petitions for discovery of assets. Cf. Rule 29.15(l) (“The circuit court shall not entertain successive motions [for postconviction relief].”); Rule 24.035(l) (same).

10.   We nonetheless note that “[a] petition for discovery of assets filed in the probate division of the circuit court is not subject to the same pleading standards applicable to other civil actions.” Estate of Williams, 660 S.W.3d at 664; see also Ryan v. Spiegelhalter, 64 S.W.3d 302, 308 (Mo. banc 2002) (“[T]he strict rules of pleadings in circuit court petitions do not apply to probate proceedings.”). “[T]he pleadings must simply give reasonable notice of the nature and extent of the claim,” meaning a petition for discovery of assets “shall describe the property, if known, and shall allege the nature of the interest of the petitioner; it shall also allege that title or possession of the property, or both, are adversely withheld or claimed.” Ryan, 64 S.W.3d at 308 (internal marks omitted).

EDWARD R. ARDINI, JR., JUDGE

All concur.