Property Law

Editor:
Paul F. Sherman, Esquire

Statute of limitations for recovery of land begins to run at the time of conveyance and where tortfeasor is deceased, requires substitution of personal representative for judgment to stand. Ellison, et al. v. Fry, deceased, et al., Nos. 32120 & 32188 (Mo. App. S.D., September 23, 2013), Scott, J.

This case involved a family dispute over property with an extensive record of facts spanning thirty years. Vincil and Willa Fry farmed and owned 160-acre homeplace plus 200 acres, with a joint will in 1981 in part leaving the homeplace to J.D. Fry, with 200 acres to Susan and David subject to life estate in Arthur. In June 1990 Vincil (82 years old) had a wreck and worried about losing the farm, so he and Willa executed new wills; settled a trust to benefit Arthur, Susan and David; deeded one farm to J.D., another farm to Delbert, and reserved a life estate for themselves. Vincil died in 2000, Willa in November 2005, no probate estates were opened.

In April 2008, Mary sued to set aside the 1990 farm conveyances to J.D. and Delbert claiming undue influence, breach of fiduciary duty, fraud, conversion and unjust enrichment as to J.D. for misdealing starting after 1998. J.D. died six months after suit was filed. Linda, Trustee of J.D.’s trust, was substituted. In October 2011 Arthur, Susan and David intervened and joined Mary in a ten-count amended petition. The jury found for Mary in the amount of $35,000 on J.D.’s breach of fiduciary duty, fraud, conversion and/or unjust enrichment. Susan and David recovered $5,500 each on unjust enrichment due to J.D.’s undue influence. Eleven points were raised on appeal, two of which are dispositive.

Defendants’ Point II – Were Susan and David’s claims time barred? Yes. The statute of limitations for recovery of land (10 years) was triggered on delivery and acceptance of the deed (1990). If fraud goes undiscovered, then it too is barred after an additional five years. Point II granted.

Defendants’ Point IV - Did Mary’s actions exist against J.D.’s trustee? No, Point IV granted – Mary’s judgment against trustee cannot stand. Mary should have named a personal representative (Section 537.021.1(2)) on behalf of deceased tortfeasor.

Held: Reversed and remanded.


Where no evidence of meritorious defense is presented, then motion to set aside default judgment pursuant to Rule 74.05(d) must fail. Benchmark Healthcare of Wildwood, LLC v. Whispering Oaks Residential Care Facility, LLC, No. 99178 (Mo. App. E.D., September 24, 2013), Dowd, Jr., J.

Whispering Oaks, LLC owned Lots 1 and 3, Benchmark rented Lot 2 from another to operate its nursing home. The water distribution system for the three lots is located on Whispering Oaks’ land. The Missouri Department of Natural Resources sued Whispering Oaks for violations of the Missouri Safe Water Drinking Act and Benchmark moved to intervene in that suit seeking receivership over the property. Separately, Benchmark sought a TRO and declaratory relief regarding an easement agreement, but was unable to serve Whispering Oaks until it learned Whispering Oaks had been administratively dissolved, so service was obtained on the Missouri Secretary of State. Benchmark obtained default judgment on Whispering Oaks April 27, 2012, and on May 25, 2012, Whispering Oaks moved to set same aside. This motion was denied October 10, 2012, for lack of credible evidence. Unclear was whether the motion was Rule 74.06(b)(1) (mistake, excusable neglect) or Rule 74.05(d) (meritorious defense). If Rule 74.05(d), there was no evidence presented, affirming trial court.

On appeal, Whispering Oaks claimed lack of valid service – denied, Secretary of State is automatically its registered agent, § 347.033.3.

Whispering Oaks claimed Benchmark lacked standing – denied, controversy or uncertainty to be addressed was a water line easement and reimbursement for costs to repair and maintain.

Whispering Oaks claimed the judgment exceeded the relief requested – denied, easement was declared valid and ran with the land.

Whispering Oaks claimed the October 5, 2012 hearing was insufficient to be an evidentiary hearing – denied, and Whispering Oaks offered no evidence it was unable to then present.

Held: Affirmed.