Probate & Trust Law
Dawn T.Christoffersen, EsquireBhavik R. Patel, Esquire
Randy Dale Vanniewaal appeals a judgment of undue influence to derive a benefit from Charles Michael Hock. In the Estate of Charles Michael Hock, Deceased, Susan Hanson v. Vanniewaal, No. 30100 (Mo. App. S.D., September 20, 2010), Lynch, P.J.
Randy Dale Vanniewaal, as personal representative of the estate, and
one of four equal beneficiaries of Charles Michael Hock's will filed
for reimbursement by the estate for funeral expenses paid by him.
Susan Hanson, another of the four equal beneficiaries of Charles' will,
then brought this action of discovery of assets against Randy alleging
certain assets were unlawfully obtained by Randy "by fraud and/or
undue influence" including two bank accounts. The trial court found
Randy's exercise of undue influence and ordered him to pay back into the
estate some of the money he received from Charles. They also held
that the funeral expenses were paid by one of the bank accounts that
belonged to the estate. Randy now appeals these findings.
Held: Affirmed. Undue influence is defined as "such
overpersuasion, coercion, force, or deception as breaks the will power
of the testator or grantor and puts in its stead the will of
another." Hamilton v. Steininger, 168 S.W.2d 59, 67 (Mo.,
1943). This is determined in a case by case analysis, and it is almost
impossible to set a rigid formula. In the Estate of Gross,
840 S.W.2d 253, 257 (Mo. App., 1992). However, "[a] presumption of
undue influence arises in discovery of assets cases when evidence shows
(1) a confidential and fiduciary relationship; (2) benefaction to the
fiduciary; and (3) some additional evidence from which undue influence
may be inferred." Id. The burden is then shifted to the fiduciary to rebut. Id.
Appellant solely argues the third point that there was not substantial
evidence to show undue influence. A
not-supported-by-substantial-evidence challenge requires:
(1) identification of a challenged factual proposition, the existence of which is necessary to sustain the judgment;
(2) identification of all of the favorable evidence in the record supporting the existence of that proposition; and,
(3) demonstration of why that favorable evidence, when considered
along with the reasonable inferences drawn from that evidence, does not
have probative force such that the trier of fact could not reasonably
decide the existence of the proposition.
Houston v. Crider, SD29879, 2010 WL 2831094, at 11 (Mo. App.
S.D., July 20, 2010). Appellant argues evidence favorable to his
position, not that the evidence the court relied on does not have
probative force. As he fails the last two steps, the court must deny
his position and affirm the trial court. Nevertheless, the appellate
court ruled that the trial court's finding of undue influence is
supported by substantial evidence. Finally, Randy's second claim on
appeal of reimbursement for funeral expenses is moot as the account is
held to belong to the estate.
Karen Lindquist appeals a judgment which ruled that interest accrues only on unpaid portions of a damages judgment. Karen
Lindquist, Individually and as Personal Representative of the Estate
of Michael Lindquist, v. Mid-America Orthopaedic Surgery, Inc., Nos. 93538 and 94209 (Mo. App. E.D., September 14, 2010), Sullivan, P.J.
Mr. and Mrs. Lindquist filed suit for medical malpractice against
Respondents Mid-America Orthopaedic Surgery, Inc. and others. On May
13, 2003 the jury returned a verdict for the Lindquists with damages to
both Mr. and Mrs. Lindquist, apportioning 40% fault to Respondents.
The trial court entered judgment on the verdict on June 18, 2003, but
later vacated that and awarded judgment notwithstanding the verdict to
another defendant and granted a new trial for Respondents. The
appellate court then reinstated the jury award and remanded for the
issue of economic damages. On February 21, 2006, the trial court
entered judgment on past economic damages and awarded a statutory 9%
interest retroactive to the first judgment. Respondents appealed the
retroactive application of interest and Appellant appealed to hold
Respondent liable for another defendant's fault. The Supreme Court
reversed on both issues and remanded for judgment assessing 45% fault
of the jury's verdict against Respondent, plus interest from February
21, 2006. Respondent appealed and the appellate court affirmed the
post-judgment interest from February 21, 2006, but remanded to apply
partial payments by Respondent and to apportion them to the Appellants.
On July 24, 2009, the trial court entered judgment and then amended
that judgment on November 23, 2009 applying the partial payment and
apportioning it and ordering the statutory 9% interest to run only on
the unpaid balances. Appellant now appeals claiming that interest
should run on the entire award until paid in full, not just the unpaid
Held: Affirmed. Appellant's first point is that the
trial court erred in not ordering post-judgment interest to continue
to run on the amount of the entire judgment, paid and unpaid.
"Interest accrues on unpaid monies. Once monies are paid, there is no
debt on which interest can accrue." Burns v. Smith, 303
S.W.3d 505, 515 (Mo. banc 2010). Thus, interest only accrues on the
unpaid portions. Appellant's second and third points are based on the
July 24, 2009 judgment. "[I]f the trial court amends its judgment.the
amended judgment becomes the new judgment for all purposes." Koppenaal v. Director of Revenue,
987 S.W.2d 446, 449 (Mo. App. W.D., 1999). As the November 23, 2009
amended judgment replaced the July 24, 2009 judgment, Appellants points
are dismissed as moot because a decision on them is unnecessary.
David Peters appeals a summary judgment denying his requests for accounting of a trust. Peters v. Peters, No. 94219 (Mo. App. E.D., August 31, 2010), Baker, J.
David Peters sought an accounting and other documentation from a
trust formed in 1991 by Gilbert Peters, Sr. and Marcella Peters as
joint tenants with the survivor to continue as sole trustee. David was
a beneficiary of the trust. Marcella died in 1995. Gilbert Sr. took
trust property out and executed a beneficiary deed with Gilbert
Peters, Jr. as beneficiary. Gilbert Sr. was found incapacitated and
probate named Gilbert Jr. as conservator. David claims he was a
qualified beneficiary entitled to an accounting and the trust became
irrevocable upon Marcella's death. Gilbert Jr. filed a motion for
summary judgment and the trial court granted it. David appeals this
Held: Affirmed in part and reversed and remanded in part.
Appellant David's first point is that as a beneficiary he was entitled
to accounting. "[F]uture beneficiaries of a trust have standing to
bring an accounting action against a trustee." Siefert v. Leonhardt,
975 S.W.2d 489, 492 (Mo. App. E.D., 1998). Section 456.6-603 provides
that while a settlor has capacity, the rights of beneficiaries and
duties of the trustee are subject to and owed exclusively to the
settler, but when the settlor does not have capacity, this section is
not applicable. Here, Gilbert Sr. was incapacitated, so as trustee,
Gilbert Jr.'s duties were owed also to the beneficiaries, thus he had
the right to an accounting. Appellant David also argued that the
trust became irrevocable upon Marcella's death and thus Gilbert Sr.
could not take trust property out. However, the trust terms were clear
that it remained revocable even after Marcella's death.
Deanna Kraemer appeals a judgment stating failure to join necessary parties to a will contest. Kraemer v. Maniscalco, No. 94239 (Mo. App. E.D., August 31, 2010), Dowd, J.
Deanna Jan Kraemer filed an application to probate a will of decedent
purportedly written in 2003, this was rejected by the circuit court.
Josephine Maniscalco also filed an application to probate a different
will of decedent purportedly written in 2004, which was admitted.
Kraemer then filed a petition to contest the 2004 will and have the
2003 will admitted naming several defendants. Maniscalco filed a motion
to dismiss Kraemer's petition due to failure to join all necessary
parties as it did not include decedent's great-nieces which were
heirs-at-law. The circuit court granted this motion. Kraemer now
appeals the dismissal.
Held: Reversed and remanded. Section 473.083.3
states that "[i]t is not necessary to join as parties in a will contest
persons whose interests will not be affected adversely by the result."
The Supreme Court has interpreted this as "whether an interested
person stands to lose some benefit if the will contest ultimately
succeeds, not whether there is a possible loss of a benefit or
expectancy if the contest fails." Zimmerman v. Preuss, 725 S.W.2d 876, 877 (Mo. banc, 1987). However, legatees of a contested will are necessary parties to a will contest. Jones v. Jones,
770 S.W.2d 246, 248 (Mo. App. E.D., 1988). As the omitted parties were
not mentioned in either will they are not legatees and because they
would not be adversely affected by the result of the will contest, they
are not necessary parties.
Suzanne Murray appeals certain rulings declaring her insane. In the Matter of Murray v. Hunter, No. 30320 (Mo. App. S.D., August 18, 2010), Burrell, J.
St. John's Regional Medical Center filed petition seeking
guardianship and conservatorship to protect Appellant Suzanne Murray,
who allegedly suffered from Schizophrenia. Appellant failed to appear
at her hearing, though her appointed counsel did. The probate division
entered judgment granting "Letters of Guardianship of Incapacitated
Person and Conservatorship of Disabled Person." Appellant appealed,
but failed to file a brief and the appeal was dismissed. She then filed
a motion for rehearing, reconsideration, or transfer to the Missouri
Supreme Court, all of which were denied. Almost four years later, the
probate division entered judgment finding the Appellant no longer
incapacitated. Appellant now appeals certain rulings made during the
initial judgment where Appellant was found incapacitated.
Held: Dismissed as moot. "A cause of action is
moot when the question presented for decision seeks a judgment upon
some matter which if the judgment was rendered, would not have any
practical effect upon any then existing controversy." Sherry v. Farr,
996 S.W.2d 541, 543 (Mo. App., 1999). As the guardianship Appellant
seeks to dismiss no longer exists, the case is dismissed as moot.
Sherry L. Crider and John L. Crider appeal the judgment
setting aside a deed conveying property to Sherry L. Crider due to
undue influence. Houston v. Crider, No. 29879 (Mo. App. S.D., July 20, 2010), Lynch, P.J.
Respondents filed suit against Appellants Sherry and John Crider to
set aside a warranty deed to Sherry claiming undue influence over their
relative grantor. The trial court entered judgment after a bench
trial setting aside the deed. Appellants now appeal claiming no undue
Held: Affirmed. Appellants first argue that the
court misapplied Section 461.054 because it discusses beneficiary
deeds, not general warranty deeds, even though the trial court did not
cite this statute, but relied on cases which applied the statute.
However, the three prongs of undue influence used in those cases are
substantially identical to the three prongs of the undueinfluence
presumption in an equitable action to set aside a deed and therefore
are allowed by the court. Duval v. Brenizer, 818 S.W.2d 332,
335 (Mo. App.W.D., 1991). Appellants next argue the trial court's
ruling is not supported by substantial evidence and against the weight
of the evidence, each with separate requirements to win on appeal.
Appellant's failure to identify evidence the trial court used to find
undue influence undermined their ability to show how such evidence
would not have had probative effect or probative value such that the
trier of fact could not have found undue influence. For the court to
reverse, it would have to act as an advocate in finding the evidence
used and disproving it, which is not allowed. Boyd v. Boyd, 134 S.W.3d 820 (Mo. App., 2004). Thus, the trial court is affirmed.
Missouri Department of Mental Health appeals, claiming no
notice of the decedent's death, the circuit court's denial of their
claim to recover unpaid costs due to an expired statute of
limitations. In re: Kraus v. Missouri Department of Mental Health, No. 71327 (Mo. App. W.D., July 6, 2010), Ahuja, J.
The Missouri Department of Mental Health filed a claim against the
estate of George Leonard Kraus to recover unpaid costs of unspecified
services provided to Mr. Kraus. Ms. Denton, as personal representative
of the estate, filed an objection to the claim. The circuit court
denied the claim on the basis of an expired applicable statute of
limitations, expiring on July 7, 2009. The Department filed a Motion to
Set Aside Denial and after Ms. Denton opposed it, the circuit court
denied it on July 21, 2009. The Department filed for interlocutory
appeal on July 31, 2009 under RSMo Section172.160.1.
Held: Dismissed the appeal for failure to timely file such
appeal under Rule 81.04. Missouri Supreme Court Rule 81.04(a) provides
that a notice of appeal must be filed no later than ten days after the
judgment or the order becomes final. Normally, Rule 81.05(a)(1) and
(2) provide that judgments do not become final until thirty days after
their entry or if motions are filed the earlier of the disposition of
the last motion or ninety days after the last motion is filed.
However, court in Estate of Standley v. Standley, 204 S.W.3d
745, 749 n.9 (Mo. App. S.D., 2006) (en banc) held that Rule 81.05 does
not apply to interlocutory probate orders appealable under Section
472.160.1(1)-(13) (of which this was). Thus, the order became final
on July 7, 2009, the date of the first denial. The Department did not
file the appeal until July 31, 2009, more than 10 days later, therefore
the appeal is dismissed for lack of timely filing. The court notes
that though the Department lost its interlocutory appeal, they are not
without recourse as they may later appeal "following a final settlement
or other judicial actions fully and finally disposing of the
proceeding." In re the Estate of Burg, 68 S.W.3d 543, 545 (Mo. App., 2001).
Jane Moerschel, personal representative of the Estate of
Rollin J. Moerschel appeals a judgment against her allowing the parties
to go against the partnership agreement between her husband and his
partners regarding the value of his partnership interest and the timing
of payments and accrual of interest. Weber v. Moerschel, Personal Representative of the Estate of Rollin J. Moerschel, Deceased, No. 93652 (Mo. App. E.D., June 15, 2010), Sullivan, P.J.
Jane Moerschel filed a motion and petition seeking a declaration of
rights, interests and entitlements between the deceased Rollin J.
Moerschel and his partners, Respondents. Respondents then filed their
claim against Jane for breach of contract. After a hearing, the trial
court entered judgment declaring the estate's portion to be the
appraised value of the assets reduced by the cost of updates and repairs
Respondents wanted to make to the property. Additionally, the money
was to be paid out with interest from the date of judgment, not the
date of death. Jane appeals.
Held: Affirmed in part and reversed in part.
Appellant appeals on two points. The first is that the partnership
agreement states that the value be determined solely by the appraised
value at death with no reductions for updates and repairs. The
intention of the parties should control contract interpretation. G.H.H. Investments, L.L.C. v. Chesterfield Management Associates, L.P.,
262 S.W.3d 687, 691 (Mo. App., 2008). The court now agrees with
Appellant that the agreement was clear that value of the assets should
be determined by an appraiser with no language allowing for a
reduction. Thus, the trial court was reversed and a reduction for
updates and repairs was not allowed. Appellant's second point is that
the partnership agreement states the payments and interest schedule
should be as of the date of the deceased's death and not the date of
the judgment. "Generally, prejudgment interest on unliquidated claims
is not recoverable, for the reason that where the person liable does
not know the amount he owes, he should not be considered in default
because of failure to pay." Watters v. Travel Guard Intern.,
136 S.W.3d 100, 111 (Mo. App. E.D., 2004). Here, the court affirms the
trial court on accruing interest from the date of judgment, not the
date of death, as the value of the debt was not ascertainable until
Gwen Marie Spicer appeals the trial court's setting aside of
its prior grant of summary judgment which gave her quiet title to
property previously titled to her deceased husband and her. Spicer v. Donald N. Spicer Revocable Living Trust, et al., Nos. 93371 and 93529 (Mo. App. E.D., June 15, 2010), Gaertner, J.
Gwen Marie Spicer filed a petition for quiet title against the Donald
N. Spicer Revocable Living Trust to gain complete ownership of a home
purchased by her deceased husband and her. The trial court entered
summary judgment in her favor on January 22, 2007. On February 7,
2008, the trustee moved to set aside the judgment believing himself to
be a necessary party to be joined. On February 25, the court granted
trustee's motion to set aside the summary judgment. Spicer appeals.
Held: Trial court ordered to reinstate the January 22, 2008
summary judgment because it lacked subject matter jurisdiction to grant
trustee's motion after February 22, 2008. Rule 75.01 of Mo. R. Civ.
P. (2010) gives a trial court authority to vacate, reopen, correct,
amend, or modify its judgment for thirty days following its entry.
Additionally, Rule 81.05(a)(1) states that at judgment becomes final
thirty days after entry if no timely, authorized after-trial motions
are filed. Trustee's filing of the motion to set aside judgment is not
an authorized after-trial motion because he was a non-party. Wolfner v. Dalton,
955 S.W.2d 928, 929-31 (Mo. banc, 1997) (non-parties who do not apply
for intervention until after judgment became final could not seek to set
aside judgment). Trustee, a non-party to the suit, did not move to
intervene and therefore the trial court lost jurisdiction 30 days after
the judgment, or February 22, 2008, and therefore it could not set the
previous judgment aside as it did on February 25, 2008.
Madolyn Hahn appeals from a judgment against the Estate of
Jerry Hahn denying attempts to set aside a deed and recover proceeds
from certain bank accounts Respondents allegedly converted. Hahn, Personal Representative of the Estate of Jerry L. Hahn, Deceased, v. Tanksley, No. 29751 (Mo. App. S.D., May 27, 2010), Bates, P.J.
Jerry Hahn filed a suit against his daughters and their husbands to
set aside a deed and recover proceeds from certain bank accounts that
the daughters allegedly converted. Jerry died shortly after the case
was tried and Madolyn Hahn was appointed as the personal representative
of his estate. The circuit court ruled against Hahn. She appeals.
Held: Affirmed. Appellant contends two points on
appeal. In Point I, Appellant contends the evidence shows Jerry lacked
mental capacity, thus the deed should be set aside. The party seeking
to set aside the deed for lack of capacity "bears the burden of
establishing by clear, cogent, and convincing evidence the basis for
exercising such power." Lee v. Hiler, 141 S.W.3d 517, 523 (Mo. App., 2004); Blackbrun v. Spence,
384 S.W.2d 535, 539 (Mo. 1964). Appellant failed to meet her burden
in establishing that decedent lacked sufficient mental capacity and the
court affirmed that the deed not be set aside. Point II is that Jerry
did not intend to give proceeds to his daughters thus the daughters
converted two accounts. "Conversion is the unauthorized assumption
and exercise of right of ownership over personal property of another to
the exclusion of the owner's rights." Reynolds County Memorial Hosp. v. Sun Bank of America,
974 S.W.2d 663, 665 (Mo. App., 1998). As for the first account, the
daughters' names were always on the account and when decedent removed
his, they could not convert what was rightfully theirs. As for the
second account, the elements of a gift were presented by clear and
convincing evidence. Thus, the daughters did not convert what was
gifted to them.
The Missouri Bar Courts Bulletin, 11-Feb