Probate & Trust Law
Editors:Dawn T. Christoffersen, EsquireBhavik R. Patel, Esquire
Appeal from judgment entered by the probate division
approving the dismissal by James L. Forbeck and Joseph A. Schneider of
their Petition for Appointment of Guardian and Conservator for Forbeck.
In the matter of: Forbeck, No. 93195 (Mo. App. E.D., May 18, 2010), Gaertner, Jr., J.
Petitioners alleged they were nephews of Alphonse Forbeck, a
ninety-year-old man who allegedly own real property worth more than
$1,000,000. Petitioners sought appointment of a guardian for Forbeck
and further alleged that the Department of Health and Senior Services
was investigating suspected abuse and financial wrong-doings by Mulkey,
who had been Forbeck's health care assistant. The probate court entered
an order appointing Chris Mennemeyer to represent Forbeck. Mennemeyer
met with Forbeck and opined that it would be prudent for Forbeck's
family to step in and care for him. At the close of the hearing, the
probate court entered a temporary order appointing Mennemeyer as
temporary emergency guardian and Petitioners as temporary emergency
co-guardians and temporary emergency co-conservators. On March 3, David
Purcell entered his appearance on behalf of Forbeck and filed a motion
to vacate the order. After Forbeck's testimony that he did not want
Purcell's representation and had not authorized Mulkey to pay $12,500
of his money to Purcell, Petitioners and Forebeck filed a notice of
dismissal which was granted by the probate court.
Held: Dismissed. Rule 84.09 allows an appellant to
file a dismissal of his appeal with the court at any time prior to the
submission of the cause. Forbeck's affidavit attesting that he did not
ask or authorize Purcell to file any appeals is sufficient to constitute
a voluntary dismissal and even if it was not, Forbeck retains the
right to voluntarily dismiss at any time. As he submitted an affidavit
of his treating physician who attested to his competency, Forbeck had
the right to dismiss his appeal. Further, Mulkey and Purcell do not
have standing to appeal the probate court's dismissal as they are not
aggrieved interested parties ("heirs, devisees, spouses, creditors or
any others having a property right or claim against the estate.").
Connie Clark, an attorney who represented the initial
personal representative of the Estate of Stanley Straszynski, appeals
from a denial of her request for attorney fees. In the Estate of: Stanley Straszynski, Deceased v. Clark, No. 29903 (Mo. App. S.D., May 11, 2010), Burrell, J.
During the course of her representation of the initial personal
representative, Ms. Bailey, Ms. Clark paid herself a total of
$16,881.59 in attorney fees from estate funds without seeking or
receiving approval from the court to do so. Ms. Clark filed a proposed
final settlement, along with a petition seeking retroactive approval of
the attorney fees plus an additional $1,860.50 in fees. The probate
division denied Ms. Clark's fee petition, modified the proposed final
settlement by removing her requested fees from the listing of Estate
expenses, and required Ms. Clark to repay the attorney fees she had
previously paid herself.
Held: Dismissed as untimely. Probate division "appeals are purely statutory, and must be taken within the time and in the manner provided by statute." Lucitt v. Toohey's Estate,
89 S.W.2d 662, 664 (Mo. 1935). As Ms. Clark's appeal was not filed
within the ten day window after the order appealed from became final
(thirty days after it was originally entered), it must be dismissed.
Movants appeal from the trial court's judgment denying their motion to intervene and their motion to set aside judgment. In Re: The Creation of the Clarkson Kerhs Mill, et al.v. City of Ballwin, MO et al. v. Minboel, et al., No. 71360 (Mo. App. W.D., May 4, 2010), Welsh, J.
The Lawrence F. Behymer, Sr. Marital Trust and Schnuck Markets, Inc.
filed a petition in the Circuit Court of St. Louis County seeking to
create a Transportation Development District. The trust is the owner of
all of the real property in the District. The City of Ballwin, St.
Louis County, and the Missouri Highways and Transportation Commission
were named as respondents and did not oppose the creation of the
District. After the trial court held a hearing on the petition and
organized the district, movants filed a motion to intervene and a motion
to set aside judgment. After a hearing, the trial court entered its
judgment and order denying movants' motions.
Held: Affirmed in part and dismissed in part. Under
Rule 52.12(a)(2), the intervenor must show: (1) an interest in the
subject matter; (2) disposition of the action may impede its ability to
protect that interest; and (3) the applicant's interest is not
adequately represented by the existing parties. Movants failed to show
that they had a direct and immediate interest in the underlying
litigation. They never presented to the trial court their claimed
interest in the improvements proposed; their alleged taxpayer interest
is speculative and based on conjecture; their argument that the public
hearing provision vests them with an interest is a bald assertion; and
movants did not comply with the statutory procedures required for
enforcement of the Hancock Amendment. As movants were not parties to
the underlying litigation, they lacked standing to appeal from the
court's judgment denying their motion to set aside judgment.
The Krutzes appeal the circuit court's judgment dismissing their action for an accounting as untimely filed. Krutz, et al. v. Meter, an Individual and as personal representative, et al., No. 71360 (Mo. App. W.D., May 4, 2010), Welsh, J.
The Krutzes filed their action for accounting as Claimants against
the estate almost twenty months after Mulvania died, outside of Section
461.300.2's time limitation of eighteen months. The Krutzes asserted
that their delay was due to the personal representative's misconduct,
namely, his failing to file the probate's inventory statement on time
and his deliberately failing to send them a copy of the inventory
statement once it was filed. The circuit court applied the statute of
limitations and barred the action.
Held: Affirmed. Section 461.300.2 contains only one
exception: when the personal representative has received a written
demand for an accounting, from a qualified claimant, within sixteen
months following the decedent's death and fails to commence an action
for an accounting within thirty days after receipt of the demand. This
exception does not apply to the Krutzes' action and Section 461.300.2
does not provide for tolling the eighteen-month limitations period in
the event that the personal representative fails to file the probate
estate's inventory statement on time.
Rodney and Randall Collier appeal trial court's grant of
partial summary judgment ruling that the Colliers could not recover
attorneys' fees. Collier, et al. v. Manring, No. 70268 (Mo. App. W.D., May 4, 2010), Smart, J.
After settlement of the first seven counts of Randall and Rodney's
petition against Rhonda Haight and her children with regard to certain
trust assets, Count VIII, deemed an alternative count, remained as an
action for legal malpractice against the Manring defendants. The count
alleged that if Manring had asked Rhonda Haight to execute the deeds in
question, the transfers would have been effective. The Colliers argued
that their attorneys' fees were recoverable as an element of damages
because they were incurred in the prosecution of the claims against the
Haights, which litigation was caused by Manring's negligent acts. The
trial court granted partial summary judgment on behalf of the Manring
Held: Judgment vacated and case remanded. The
general rule in Missouri is that attorneys' fees are recoverable only
when a statute specifically authorizes recovery or when attorneys' fees
are provided for by contract. Essex Contracting, Inc. v. Jefferson County,
277 S.W.3d 647, 657 (Mo. banc 2009). However, where the natural and
proximate result of a wrong or breach of duty is to involve the wronged
party in collateral litigation, reasonable attorneys' fees necessarily
and in good faith incurred in protecting himself from the injurious
consequence thereof are proper items of damages. Id. The trial
court erred in dismissing count VIII because the collateral litigation
exception would allow recovery of necessary and reasonable fees caused
by negligence. On remand, the Plaintiffs must show a breach of duty to
John W. Collier by the Defendants.
Sean Blair appeals from a decree of final distribution
entered in the estate of his father, Ronald Blair, declaring a tract of
real estate was not part of the estate because title vested in Sharon
Blair upon Ronald's death. In the Estate of Ronald Steven Blair, Deceased, Sean Blair v. Blair, No. 29688 (Mo. App. S.D., April 30, 2010), Bates, P.J.
Ronald and Sharon were married in 1986. During their marriage, they
acquired a tract of real estate. Ronald asked Sharon to sign a
quitclaim deed to that tract which she did. Only Sharon signed the
quitclaim deed. Ronald died intestate, after a period of separation
from Sharon during which Sharon was dating another man. The tract of
land was listed as an asset of Ronald's estate. Sean filed a claim,
alleging that Sharon had waived and relinquished all rights in the
Stafford property. The trial court found that the quitclaim deed did
not extinguish the tenancy by the entirety and that the property passed
to Sharon by operation of law upon Ronald's death. The trial court
removed the property from the estate.
Held: Affirmed. Sean specifically placed the issue
of who owned the Strafford property before the trial court and thus,
his first point (contending that there was error in removing the
property from the estate) is denied. As to Sean's second point, that
the quitclaim deed executed by Sharon was effective to vest sole
ownership of the property in Ronald, the court held that a deed
executed by one of the tenants alone is void because each party in
Missouri is seized of the whole or entirety and not a share or
Karl Shellabarger appeals from trial court's partial summary
judgment entered in favor of Gene and Eugenia Shellabarger based on
the statute of frauds, the statute of limitations, and laches. Shellabarger
v. Gene and Eugenia Shellabarger, individually and as trustees of the
Gene L. Shellabarger and Eugenia L. Shellabarger Trust, No. 93618 (Mo. App. E.D., April 27, 2010), Sullivan, J.
Karl and Gene entered into a contract involving real estate which
provided that Karl could purchase the real estate in the future,
following an 18-month holding period after Respondents had purchased
the real estate. On November 12, 1996, the holding period was no longer
in effect. The contract did not provide a definite date for
performance or closing. On April 22, 2008, Karl filed a five-count
petition against Respondents. Respondents filed a motion for summary
judgment on all counts except damages (Count V). The trial court
granted Respondents' motion without explication. Appellant dismissed
Count V without prejudice so that this appeal could follow.
Held: Reversed and remanded. Point
I on appeal is that the court erred in granting summary judgment on
the statute of frauds issue. The court held that the date of Gene's
sale of the property to Appellant was not essential or pertinent to
their particular agreement and as such, that omission does not implicate
a violation of the statute of frauds. Point II on appeal is that there
are insufficient facts in Respondents' statement of undisputed facts
to support their affirmative defense of the statute of limitations. The
court held that the summary judgment record was insufficient to
establish that there was no disputed material issue of fact regarding
the expiration of the applicable statute of limitations. Point II on
appeal implicates the doctrine of laches as a bar to Appellant's
claims. In determining whether the doctrine of laches applies in a
particular case, an examination is made of the length of delay, the
reasons therefore, how the delay affected the other party, and the
overall fairness in permitting the assertion of the claim. The court
held that the facts properly in the record were wholly deficient to
support a claim of laches.
Billie Barker filed a petition for a writ of prohibition to
prevent the trial court from denying her request for a jury trial in
the underlying quiet title action. State ex rel. Billie Barker, Trustee of the Mary Almond Living Trust v. The Honorable David B. Tobben, No. 90407 (Mo. banc, April 20, 2010), Teitelman, J.
Gloria Kappler filed suit against Barker to quiet title with respect
to property titled to the Mary Almond Living Trust. Barker filed a
counterclaim for quiet title, injunctive relief, ejectment, trespass,
conversion, and punitive damages and requested a jury trial. The
circuit court sustained Kappler's objections to Barker's request for a
jury trial. Barker filed a petition for writ of prohibition to prevent
the court from enforcing the order denying her request for a jury
trial. A preliminary writ was issued.
Held: Preliminary writ made permanent. The dispositive issue under State ex rel. Diehl v. O'Malley, 95 S.W.3d 82 (Mo. banc 2003) and State ex rel. Leonardi v. Sherry,
137 S.W.3d 462 (Mo. banc 2004) is whether Kappler's action to quiet
title via claims of adverse possession and boundary by acquiescence are
legal or equitable in nature. If Kappler's petition asserts legal
claims against Barker, Barker is entitled to a jury trial on those
claims. The court held that a quiet title action is generally
considered legal in nature when parties seek only a determination of
title and there is no specific request for equitable relief. As
Kappler's claim does not state a claim for equitable relief, the action
is legal in nature and as such, Barker has a right to a jury trial.
Patrick Dorsey appeals from judgment of the trial court
awarding damages to Title Partners Agency for its action for claims of
unjust enrichment, fraudulent misrepresentation, and money had and
received. Title Partners Agency, LLC v. Dorsey, No. 93161 (Mo. App. E.D., April 20, 2010), Sullivan, P.J.
Dorsey was appointed the personal representative of the estate of his
mother, Sharon Dorsey, following her death on November 28, 2001.
Dorsey received an offer for property that was among the assets of the
estate in June of 2007. At closing, Dorsey executed an affidavit that
there were no loans or mortgages on the property when, in fact, there
was an outstanding second deed of trust on the property on which Dorsey
had made several payments as personal representative. Title Partners
ultimately paid Wachovia the sum of $6,688.77 to satisfy the debt owed
after they conducted a title search for the buyer, but did not find
this deed of trust. Title Partners filed a petition against Dorsey
individually and against the devisees of the last will and testament of
Sharon Dorsey. The trial court entered judgment in favor of Title
Partners against Dorsey only.
Held: Dismissed. The devisees were never dismissed
from the case and since the trial court did not expressly designate in
its judgment that "there is no just reason for delay," its judgment is
still subject to revision and is not a final, appealable judgment. See: Goodson v. National Sports and Recreation, Inc., 136 S.W.3d 98, 99 (Mo. App. 2004).
Beneficiaries of the Cliff Morton Trust appealed the
decision of the Circuit Court of Jasper County, denying declaratory
relief. In Re: The Clifton E. Morton Revocable Trust, Morton v. Morton, et al., No. 29620 (Mo. App. S.D., April 15, 2010), Rahmeyer, J.
Cliff and Regina Morton created a joint trust in June of 2003. Cliff
later created a new trust and funded it with assets of the joint trust.
Regina did not re-issue stock shares of companies held in the joint
trust to Cliff's new trust. After Cliff's death, Jason Shane Morton
brought this action as trustee of Cliff's trust, seeking a declaratory
judgment that the second trust owned the property. The trial court
denied this request.
Held: Affirmed. Jason brings three points on
appeal. Point III, addressed first, attests that the court had no
jurisdiction to determine whether Cliff's transfers were in fraud of
Regina's marital rights because Regina did not plead same as an
affirmative defense. However, Appellant did not offer any insight as to
what evidence was presented in the trial that was relevant on the pled
action but not relevant for a claim of fraud of marital rights and
therefore Point III was denied. Point I and II claim a failure of proof
on fraud of marital rights and the wrong remedy for that claim.
Sufficient evidenced supported a conclusion that Cliff's actions in
changing the beneficiary designation of his life insurance policy prior
to funding the Joint Trust and without Notice to Regina, as well as
creating a new trust with joint assets which excluded any benefit to
Regina, wrongfully deprived Regina of her right, title, and interest in
property, and that deprivation was as a result of Cliff's fraud or
violation of confidence. While the trial court did not articulate a
specific finding of a constructive trust, it is clear that the court's
conclusions supporting the finding of same. As a correct decision will
not be disturbed because the court gave a wrong or insufficient reason,
Points I and II were denied.
Trustees appeal judgment in favor of beneficiaries on their petition for declaratory judgment. James
Price Schumacher, individually and as natural guardian for James Price
Schumacher, II and Charles Beck with Schumacher, Minors, et al. v.
Louis Edward Schumacher Austin, individually and as trustee of the
Louis E. Schumacher, Sr. Irrevocable Trust, No. 70465 (Mo. App. W.D., February 23, 2010), Howard, J.
In 1976, Louis E. Schumacher, Sr. ("Grantor") created an irrevocable
trust and designated Topper and Austin as the trustees. Under the terms
of the trust, income was to be paid in equal shares to each Grantor's
four children during Grantor's lifetime and for a period of five years
thereafter. The trust was to terminate five years after Grantor's death
and the principal was to be distributed to Grantor's then living
descendents. In 1986, Grantor and Topper created a second trust, a
revocable trust, and named themselves as trustees. Upon Grantor's death,
the revocable trust split into three separate trusts with Topper as
the sole trustee of each. As a result of the exchange of the
irrevocable trust's interests in the Topper Schumacher Limited
Partnership and Lou Schumacher, Sr., LLC for shares in The Schumacher
Group, Ltd., most of the meaningful assets in the trusts were
transferred to the partnership controlled by Topper. When the
irrevocable trust terminated, shares of the corporation were the only
asset and were distributed accordingly. Beneficiaries filed their
petition for declaratory judgment. The trial court described the
primary legal issue as whether trustees acted outside their authority
in converting trust assets into assets of the partnership. The court
found that the trustees had acted outside their authority when they
converted trust assets because they had violated their duties to
Held: Reversed and remanded in part and affirmed in part.
Point I contends that the trial court erred in entering a declaratory
judgment because such a finding exceeded the scope of the parties'
pleadings. However, it was clear that, in light of the arguments made
before the trial court, the Trustees contemplated that the issues
Beneficiaries presented could involve the application of Missouri law in
addition to an interpretation of the straightforward terms of the
trust. If, as Trustees claim, the sole issue was a question of
authority within the terms of the trust instrument, Trustees themselves
went beyond that issue when they made arguments based on Missouri
trust law and as such, Point I is denied. Point II contends that the
trial court erred in failing to hear evidence and consider disputed
facts that would have supported Trustees' investment decisions. Because
the trial court disregarded Trustees' affirmative defenses insofar as
they were based on disputed facts, cause is reversed and remanded so
that the court may hear evidence and evaluate the disputed facts with
regard to Trustees' affirmative defenses.
Emma France, Guy Sesler, and Treba Benson appeal from dismissal of their cause. France v. Podleski, Crandall & Podleski, P.C., No. 29734 (Mo. App. S.D., February 22, 2010), Sullivan, J.
Crane provided legal services by representing the public
administrator in her role as guardian and/or conservator before the
Jasper County Probate Court. When Crane became a circuit court judge,
Podleski took over. Neither Crane nor Podleski had a written contract
with the public administrator. Plaintiff-Appellants all paid
Respondents' fees from their estates. Plaintiff-Appellants alleged that
the contracts between Respondents and the Jasper County Public
Administrator were unlawful under Sections 50.660 and 432.070 and that
Respondents breached the duty owed to Appellants to zealously represent
them and prevent them undue financial loss. The trial court dismissed
the suit for failure to state a claim.
Held: Affirmed. Section 432.070 requires that the
contract between a party and the county be in writing. However, Section
432.070 does not apply in this case because Respondents did not
contract with the county, were not paid with county funds, and performed
all services for the public administrator. Section 50.660 applies when
a contract imposes a financial obligation on the county and then the
contract must be in writing. Respondents' fees for services were never
financial obligations of the county. As to the claim for legal
malpractice, there must be an existence of an attorney-client
relationship, negligence or breach of contract by the attorney,
proximate causation of damages to the plaintiffs, and damages to the
plaintiffs. Appellants' petition does not allege that an attorney-client
relationship existed but Respondents entered into a joint venture with
Appellants when they agreed to represent the public administrator.
However, on these facts, the fiduciary relationship between the public
administrator and Appellants did not extend to Respondents and
therefore, judgment is affirmed.
Crystal Jones appeals the trial court's decision holding
that the Hoffmans were year to year tenants and entitled to sixty days'
notice before termination of tenancy under Section 441.050. Hoffman and Hoffman v. The Estate of Syler, No. 70247 (Mo. App. W.D., February 19, 2010), Smart, J.
The Hoffmans claim they have a year to year lease which under Section
441.050 would entitle them to sixty days' notice before termination of
their tenancy. Jones claims that they are share croppers and that
they were not entitled to 60 days' notice of termination. The trial
court entered judgment in favor of the Hoffmans and Jones appeals.
Held: Affirmed. In a year-to-year lease agreement,
the tenant often keeps track of expenses, cultivates, harvests, and
sells the crops, and pays the owner an agreed portion or percentage of
the proceeds. In addition, a year to year lease tenant is often
responsible for repairing and maintaining the property and has a
possessory interest in the property. Under a sharecropping arrangement,
the parties generally split the proceeds from the crop; however,
sharecroppers generally do not have to maintain the property and do not
have a possessory interest in the land. The court also states that
while the concept of legal possession is a matter of law, the issue of
the parties understanding their respective rights is a matter of fact.
In this case the Hoffmans supplied their own equipment, made all
decisions regarding farming, performed unpaid maintenance on tillable
and non-tillable acres, applied for government programs and dealt
directly with the government regarding these programs, and received
profits from non-tillable land. There is also no evidence that the
Hoffmans "had a restricted sphere of activity" or lacked access to the
entire property. As such, the Hoffmans were year to year tenants.
Randy and Nancy Hanson appeal from a judgment entered in the
Circuit Court of Jackson County in an interpleader action originally
filed by Blue Ridge Bank and Trust Company related to a piece of
property located on lake Lotawana in Jackson County. Blue Ridge Bank and Trust Co. v. Trosen, No. 69880 (Mo. App. W.D., February 9, 2010), Ellis, J.
The trial court held that the preemptive right covenant had been
waived by the Lake Lotawana Association with regard to intra family
transfers of property and that the covenant posed an unreasonable
restraint on the alienation of property. The Hansons appeal was decided
on two points.
Held: Affirmed. First, the Hansons claimed that the
trial court erred because the Association cannot be deemed to have
waived their right of first refusal as to intra-family or other
transfers. The court found that the association and its members could,
and according to the evidence, had waived their preemptive right to
intra-family transfers. The Hansons argued as their second point that
since the trustee was not related to the Hansons that this was not an
intra-family transfer, but the appellate court agreed with the trial
court, stating that it must look beyond formalities to the nature of
the conveyance and found that it was an intra-family transfer.
Therefore Points I and II are denied leaving no need to address the
James Knox appeals the trial court's decision awarding
Lakeridge $67,655 in actual damages, $29,491.00 in attorney's fees, and
$4,326.44 in interest. Lakeridge Enterprises, Inc. v. Knox., No. 70444 (Mo. App. W.D., February 9, 2010), Ellis, J.
Knox brings eight points on appeal; however, the court affirms and
only reaches the second point. In the second point, Knox claims that
the petition did not contain sufficient averments to state a claim
against him in his individual capacity.
Held: Reversed. The court cites Section
456.10-1010.1, which states that "except as otherwise provided in the
contract, a trustee is not personally liable on a contract properly
entered into in the trustee's fiduciary capacity in the course of
administering the trust if the trustee in the contract disclosed the
fiduciary capacity". The court states that the fact that Knox was
acting in his fiduciary capacity is clear and as a matter of law the
breach of contract claim against Knox individually is defective on its
The Missouri Bar Courts Bulletin, 11-Jan