Will Filed More Than a Year After Death of Decedent Should Not Be Admitted to Probate

W. Dudley McCarter
Behr, McCarter & Potter
St. Louis

Harold Unnerstall died in March of 2006. Shortly after he died, his surviving spouse, Luanne Unnerstall, was adjudged to be incapacitated; Anna Leighton was appointed her conservator. Under the terms of the Harold Unnerstall trust, Mrs. Unnerstall would receive 10 percent of the trust estate. The trustee of the trust offered to pay Mrs. Unnerstall that amount, but she refused to accept it. Mrs. Unnerstall filed a “Petition to Require Administration” of her husband’s estate one year after his death, alleging that he had died intestate. In May of 2007, the trustee of the trust filed the purported will of Mr. Unnerstall with an affidavit stating that he had not opened a probate estate because he believed all of the assets Mr. Unnerstall owned at the time of his death were held in the trust and not subject to probate administration. The trial court entered an order admitting the purported will of Mr. Unnerstall to probate, but the Supreme Court reversed in State ex rel. Unnerstall v. Berkemeyer.1

The language of § 473.050.3(2) “indicates a legislative intent to keep a one-year time limitation for the presentment of a will.”2 ‘“There is no natural or inherent right to dispose of property by will; … the state has the power to prohibit such disposition entirely, and … has the lesser power to prescribe the time for probating a will.’ State ex rel. Bier v. Bigger, 178 S.W.2d 347, 350 (Mo. banc 1944)…. In this case, the legislature has chosen to allow one year from the time of a decedent’s death for the presentment of a will if notice has not been given before the end of one year. Here, publication of notice of letters being issued did not occur within one year of Mr. Unnerstall’s death. Yet the will was not presented, or even delivered, until more than a year had passed from the date of Mr. Unnerstall’s death.”3

“[T]he legislature chose to amend the statute in 1966 … to allow for administration to occur at any time after the testator’s death if assets were found later. The legislature, however, did not choose to change the one-year will presentment time limitation. The purported will was presented more than one year after Mr. Unnerstall had died and, therefore, is time-barred by section 473.050. Mr. Unnerstall’s property will be distributed in accordance with the law as though he died without a will…. Because section 473.050 prevents a will from being presented more than one year after the death of a decedent, if notice of letters has not been published already, the respondent judge should not have admitted Mr. Unnerstall’s will to probate, nor should letters testamentary have been issued in accordance with the will.”4

Statute Prohibiting Possession of a Firearm While Intoxicated is Constitutional

John Richard was charged with one felony count of possession of a loaded firearm while intoxicated, in violation of § 571.030.1(5) RSMo. The circuit court dismissed the charge on the grounds that the statute violated the Second Amendment to the United States Constitution and article I, section 23 of the Missouri Constitution. “… Richard asserted that the statute ‘effectively bans the possession of firearms in the home by anyone who is present in his/her home while intoxicated, and, therefore, violates the federal and state constitutional right to possess a firearm within a person’s home for self-defense.”5 The Supreme Court found the statute to be constitutional, however, and reversed the dismissal of the charges in State of Missouri v. Richard.

‘“A statute is presumed to be constitutional and will not be invalidated unless it “clearly and undoubtedly” violates some constitutional provision and “palpably affronts fundamental law embodied in the Constitution.’” Board of Education of City of St. Louis v. State, 47 S.W.3d 366, 368-69 (Mo. banc 2001).”6 The state constitutional right to keep and bear arms, like the Second Amendment, is not absolute. “The state has the inherent power to regulate the carrying of firearms as a proper exercise of the police power. State v. Horne, 622 S.W.2d 956, 957 (Mo. banc 1981). The function of police power is to preserve the health, welfare and safety of the people by regulating all threats harmful to the public interest. See Craig v. City of Macon, 543 S.W.2d 772, 774 (Mo. banc 1976). The legislature is afforded wide discretion to exercise its police power. Id. Possession of a loaded firearm by an intoxicated individual poses a demonstrated threat to public safety. See e.g. State v. Erwin, 848 S.W.2d 476 (Mo. banc 1993). Consequently, section 571.030.1(5) represents a reasonable exercise of the legislative prerogative to preserve public safety by regulating the possession of firearms by intoxicated individuals.”7

“The state alleges facts indicating that Richard was intoxicated and in actual possession of a loaded firearm. These alleged facts constitute a violation of section 571.030.1(5) and … are within the power of legislative regulation under the police power.”8 “… Richard argues that the statute could be applied in a manner that effectively would prohibit an intoxicated person”9 from defending himself or others. “There is, at this point, no self-defense issue in this case. Richard has no standing to raise hypothetical instances in which the statute might be applied unconstitutionally. Lester v. Sayles, 850 S.W.2d 858, 872-873 (Mo. banc 1993).”10 “Under the facts of this case at this stage of the litigation, his constitutional claims fail.”11

Trial Court Abused Its Discretion in Remitting Jury Verdict

Lauren Wiley “was driving her Ford Escort when she was struck by an 18-wheel truck and trailer driven by [Ryland] Homfeld, who had run a red light while talking on his cell phone. Ms. Wiley sustained injuries to her back as a result of the collision.”12 At trial, her physician “testified that the pain from the type of injury sustained by Ms. Wiley will progress as arthritis sets in and ‘that there is a good medical certainty she will require … pain medications, anti-inflammatories’”13 and other treatment as she ages. The physician further testified that the visits to her doctor would increase as her condition worsened and that she would need more physical therapy if her condition worsened. In addition, he testified that Wiley would require epidurals in the future, but could not put a number on how many she would ultimately need. The jury returned a verdict for Wiley in the amount of $400,000, but the trial court remitted the verdict to $100,000. The Court of Appeals reinstated the jury verdict in Wiley v. Homfeld.

‘“The assessment of damages is primarily a function for the jury.’ Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 180 (Mo. App. W.D. 2006).”14 “The trial court’s authority to grant remittitur is established by § 537.068. That statute only vests the trial court with discretion to remit a verdict if the evidence, viewed in the light most favorable to the verdict, does not support the amount awarded by the jury.”15 “The only way to review the trial court’s decision in this regard is to view the evidence in the light most favorable to the verdict, as the trial court was required to do in assessing whether the jury’s verdict was supported by the evidence.”16

“In 1985, the Missouri Supreme Court abolished common law remittitur in Firestone v. Crown Centre Redevelopment Corp., 693 S.W.2d 99 (Mo. banc 1985).”17 In 1987, the legislature adopted § 537.068, creating a statute-based remittitur. ‘“The legislature is presumed to know the state of the law when enacting a statute.’ Scoggins v. Timmerman, 886 S.W.2d 135, 137 (Mo. App. W.D. 1994).”18 “If the legislature, in reinstating remittitur by statute, had intended to change the standard of review adopted and applied in Firestone, it could easily have done so. It did not.”19 Here, when the evidence is properly viewed in the light most favorable to the jury’s verdict, that verdict is clearly supported by substantial evidence.

Plaintiff’s physician testified that Wiley would need more medical care in the future, as her condition worsened. “In addition, the fact that Ms. Wiley might need additional treatment and/or back surgery could properly have been weighed by the jury in assessing the nature and extent of her injury, as well as the pain and suffering she would experience as her condition worsened. The fact that her back injury carries with it a chance of requiring surgery in the future makes it a worse injury than a back injury with a lesser chance of future complications or one that had fully healed by the time of trial, a fact that should be considered by the jury in assigning a dollar value to her injury. Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 132-33 (Mo. banc 2007). Viewing the evidence in the light most favorable to the jury’s verdict, … the record … supported the $400,000 verdict and … the trial court abused its discretion in finding to the contrary.”20

The dissent commented that Firestone v. Crown Centre Redevelopment Corp. had been superseded by § 537.068 and that it is no longer instructive on remittitur cases. “The ultimate test … in determining whether the circuit court abused its discretion is whether the award compensates the plaintiff fairly and reasonably for the sustained injuries. Alcorn v. Union Pacific R.R. Co., 50 S.W.3d 226, 249-50 (Mo. banc 2001).”21 The circuit court found that the cost of future medical expenses were subject to conjecture and speculation and not established to a reasonable degree of medical certainty. “It cannot be said that the circuit court’s decision was contrary to the logic of the situation, especially when viewed in the light most favorable to the trial judge’s decision.”22

Admission or Exclusion of Evidence is Within Trial Court’s Discretion

Frederick and Barbara Beaty filed a medical malpractice suit against St. Luke’s Hospital of Kansas City and several physicians. They “alleged that the defendants failed to recognize that Mr. Beaty suffered a stroke either during or after [a] cardiac procedure and failed to treat the stroke in a timely manner.”23 After a three-week trial, the jury returned a verdict for the defendants. The Beatys appealed, contending that the trial court abused its discretion in allowing a treating physician to testify after being disclosed by defendants as a non-retained expert and in restricting their own expert from testifying about a recent physical examination of Mr. Beaty that was not disclosed to defendants prior to trial. The Court of Appeals affirmed the jury verdict in Beaty v. St. Luke’s Hospital of Kansas City.

The appellate court reviewed the circuit court’s admission or exclusion of evidence for an abuse of discretion. “An abuse of discretion occurs when the court’s ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. at 315. [The appellate court] defer[s] to the trial court’s determination of admissibility because ‘it is in a superior position to evaluate the proffered evidence in the context of the trial.’ Byers v. Cheng, 238 S.W.3d 717, 726 (Mo. App. 2007). To reverse the trial court’s determination, [the appellate court] must find that the [appellant was] prejudiced because the inclusion or exclusion of evidence materially affected the merits of their action. Id.”24

“A treating physician, such as [the physician who treated Mr. Beaty], has knowledge of the facts of the case and is not retained solely for the purpose of litigation. Kehr v. Knapp, 136 S.W.3d 118, 123 (Mo. App. 2004). Although referred to as a non-retained expert, ‘the treating physician is first and foremost a fact witness, as opposed to an expert witness.’ Brandt v. Med. Def. Assocs., 856 S.W.2d 667, 673 (Mo. banc 1993).”25 Here, the defendants fully complied with Rule 56.01(b)(5) by listing one of Mr. Beaty’s physicians as a non-retained expert in response to the Beatys interrogatories. “The Beatys assert the defendants were obligated to make [this physician] available for a deposition, but the discovery rules do not impose such requirement for non-retained experts. As Mr. Beaty’s treating physician, [he] was not under the defendants’ control. Counsel for the Beatys could have contacted [Mr. Beaty’s physician directly] and scheduled an interview or his deposition without any assistance from the defendants, but counsel opted not to do so.”26

“[T]he Beatys [also] contend that the trial court erred in precluding their expert … from testifying about her physical examination of Mr. Beaty”27 that occurred less than 24 hours prior to the physician’s testimony at trial. “The trial court is vested with discretion to exclude testimony when an expert provides different testimony from that disclosed in discovery. See Gassen v. Woy, 785 S.W.2d [601, 604 (Mo. App. 1990)]. That can occur if the expert changes the nature of his or her opinion or, as in this case, relies upon new or different facts not previously disclosed. Id. The trial court also has broad discretion in determining how to remedy these situations. Green v. Fleishman, 882 S.W.2d 219, 222 (Mo. App. 1994). ‘The very nature of the discretion vested in the trial court recognizes that each case must be determined on its own peculiar facts, which bear on the questions of whether that discretion has been abused.’ Gassen, 785 S.W.2d at 604. The court can reject the evidence or fashion some other appropriate remedy. Whitted v. Healthline Mgmt., Inc., 90 S.W.3d 470, 475 (Mo. App. 2002).”28

Here, the plaintiffs “unnecessarily created a problem by not having [their expert] examine Mr. Beaty until the night before she was scheduled to testify at trial.”29 Plaintiffs “could have provided the defendants with notice of their intention to have [the expert] examine Mr. Beaty,”30 but did not do so. “The circuit court crafted a remedy to this injustice by limiting [the expert’s] testimony to the information that was produced during discovery.”31 The Beatys were not prejudiced by this narrow ruling.

Bonding Company Must Show Prejudice From Lack of Timely Notice

A. G. Electrical performed electrical work, as a subcontractor to Abdelmalek Construction, which was the general contractor on a project for the St. Charles School District. A. G. Electrical failed to pay its workers the prevailing wage as required by Missouri’s Prevailing Wage Law and those workers filed suit to recover on the payment bond obtained by Abdelmalek Construction for the project. The payment bond contained a 90-day notice provision that required the claimant to give written notice to the bonding company within 90 days from the date the claimant performed the last labor for which the claim was made. The workers did not notify the bonding company within 90 days of their last day of work and the trial court dismissed their claim as untimely. The Court of Appeals reversed, however, in Thomas v. A. G. Electrical, Inc.32

“The modern trend among Missouri courts has been to exercise restraint in requiring strict compliance with the terms of notice provisions. Weaver v. State Farm Mut. Auto. Inc. Co., 936 S.W.2d 818, 819-20 (Mo. banc 1997). Courts have recognized that the function of a notice requirement is simply to protect the insurer from being prejudiced. Id.”33 ‘“Where the insurance company’s interests have not been harmed by a late notice … the reason behind the notice condition in the policy is lacking.’ Weaver, 936 S.W.2d at 820 (quoting Brakeman v. Potomac Ins. Co., 371 A.2d 193, 197 (Pa. 1977)). In such a situation, ‘[i]t follows neither logic nor fairness to relieve the insurance company of its obligations under the policy.’ Id.”34

“In Missouri, courts treat the failure of an insured to provide timely notice as an affirmative defense. Weaver, 936 S.W.2d at 821. Absent a showing of prejudice by the insurance company, the insurer cannot defeat its liability under the policy. Id. … The function of the notice requirement in the bond is the same as that in insurance policies. Indeed, the bonding company concedes that its notice-of-claim provision exists to afford them an opportunity to investigate the claim. It follows, then, that the notice-of-claim provision should not be strictly construed, nor should liability under the bond be avoided, absent a showing of prejudice.”35 “The bonding company at this juncture has not asserted, shown or argued that it has been prejudiced by the workers’ delay in notifying it of their prevailing-wage-act claims. The notice-of-claim provision in the Payment Bond, therefore, does not negate the workers’ claims.”36 In a footnote, the court stated that it was not deciding whether the notice-of-claim provision was void because it impermissibly shortened the statute of limitations.

Evidence of Hostile Work Environment Supported Award of Punitive Damages

Mohamed Alhalabi began working as an engineer for the Missouri Department of Natural Resources (“DNR”) in 1999. He is an Arab-American, who was born in Lebanon; he is also a member of the Muslim faith. After receiving notes in his mailbox calling him a Muslim terrorist and threatening him with extermination, he complained to DNR about working in a racially hostile work environment. After the harassment of him continued for several years, he filed suit against DNR. The jury found in Alhalabi’s favor on his hostile work environment claim and awarded him actual damages of $187,000 and punitive damages of $150,000. DNR appealed, but the Court of Appeals affirmed the judgments in Alhalabi v. Missouri Department of Natural Resources.37

“To prevail on a claim of hostile work environment, a plaintiff must prove: (1) he is a member of a protected group; (2) he was subjected to unwelcome [protected group] harassment; (3) his [membership in a protected group] was a contributing factor in the harassment; (4) a term, condition, or privilege of his employment was affected by the harassment, and (5) the [employer] knew or should have known of the harassment and failed to take appropriate action. Barekman v. City of Republic, 232 S.W.3d 675, 679 (Mo. App. S.D. 2007). Discriminatory harassment affects a term, condition or privilege of employment if it is sufficiently severe or pervasive enough to alter the conditions of a plaintiff’s employment and create an abusive working environment. See Cooper v. Albacore Holdings, Inc., 204 S.W.3d 238, 244 (Mo. App. E.D. 2006). The conduct must be sufficient to create a hostile work environment, both as it was subjectively viewed by the plaintiff and as it would be objectively viewed by a reasonable person. Id. at 245.”38 The fact that the jury awarded punitive damages indicates the discriminatory harassment was severe and pervasive.

“Section 213.111 [RSMo] provides that the court may award punitive damages to the Plaintiff in an action filed pursuant to the [Missouri Human Rights Act].”39 “Punitive damages require clear and convincing proof of a culpable mental state, either from a wanton, willful or outrageous act, or from reckless disregard for an act’s consequences such that an evil motive may be inferred. Id. Punitive damage awards have been sustained when the court found management participated in the discriminatory conduct and treated the plaintiff differently from others. H.S. v. Board of Regents, Southeast Missouri State University, 967 S.W.2d 665, 672 (Mo. App. E.D. 1998).”40 Taken “in the light most favorable to submissibility, in this case, there was evidence that DNR acted with reckless disregard for Alhalabi’s rights when it failed to properly investigate his complaint of a pattern of discrimination and failed to take effective measures to stop the discrimination, which included the incessant assertion of unfair and unfounded complaints and grievances against Alhalabi and anonymous and inflammatory anti-Arab and anti-Muslim postings and mailings.”41 “[T]he evidence showed that DNR knew of the harassment of Alhalabi and still failed to take effective steps to correct the problem, which continued for multiple years.”42

“Finders Keeper, Not Losers Weepers”

The late husband of Julia Matthey purchased 100 Krugerrands in 1978 and hid them in the family home. He died before revealing the location of them to Matthey. In 2000, Matthey sold her home to Eric Tolen. After moving in, Tolen found the Krugerrands and placed them in his bedroom safe, but did not inform Matthey of his find. In 2007, the St. Louis County Police Department lawfully searched Tolen’s home regarding an unrelated matter, found the Krugerrands and seized them. Matthey filed a declaratory judgment action, praying the trial court to declare her the lawful owner of the Krugerrands and ordering the St. Louis County Police Department to deliver the Krugerrands to her. The trial court entered judgment in Matthey’s favor and Tolen appealed. The Court of Appeals affirmed in Matthey v. St. Louis County, et al. 43

“Generally, replevin ‘is a possessory action … to obtain from the defendant property that he possesses.’ First National Bank of Steelville v. ERB Equip. Co., Inc., 972 S.W.2d 298, 300 (Mo. App. E.D. 1998).”44 “That is, the defendant must be in actual or constructive possession of the property at the time the replevin suit is filed. Goth v. Norman, 693 S.W.2d 175, 179 (Mo. App. 1985).”45 “Here, it is [undisputed] that at the time [Matthey] filed her [suit] for declaratory judgment, the Krugerrands were in the possession of the St. Louis County Police Department,”46 not Tolen. “Thus, [Matthey] could not have maintained an action in replevin against [Tolen].”47 “… St. Louis County had not wrongfully detained the Krugerrands, but obtained control over [them] by virtue of a valid search and seizure.”48 St. Louis County did not wrongfully detain the Krugerrands; it stated it had no interest in them and asked the trial court to decide the rightful owner.

“When a remedy at law is lacking, a plaintiff may resort to a separate suit in a court of equity or to the Declaratory Judgment Act for redress. Section 527.010[, RSMo]. The circuit courts have jurisdiction over declaratory judgment actions to determine ownership of personal property. Jarman v. Eisenhauer, 744 S.W.2d 780, 782 (Mo. banc 1988). Additionally, even if a legal action of replevin was available to [Matthey], an equitable remedy is still available if the legal remedy would be incomplete. Jacobs, et al v. Cauthorn, 238 S.W.443, 445 (Mo. 1922). Here, an action in replevin, if available, would merely settle the dispute regarding possession of the Krugerrands, not ownership. A replevin action relies upon a right to possession, not ownership. Auto Alarm Supply Corp. v. Lou Fusz Motor Co., 918 S.W.2d 390, 392 (Mo. App. E.D. 1996). In order to resolve the dispute over the Krugerrands, [Matthey] was entitled to petition the trial court to rule on ownership of the gold coins, not mere possession.”49 The trial court “properly exercised its equitable jurisdiction and did not err in delivering the Krugerrands to [Matthey].”50

In Negligence Cases, Whether the Defendant’s Act Breached a Duty Owed to Plaintiff is Typically an Issue for the Jury

On December 19, 2000, a water main maintained by Missouri American Water Company broke, causing water to flow onto the property of Diane and Donald Hackmann. The Hackmanns informed the water company, but it did not shut off the water flow until the next day. One week after the water main break, the Hackmanns removed the ice that had formed on their driveway and noticed that the concrete slabs of the driveway had moved and shifted between 1 and 3 inches. Several weeks later, precipitation caused ice to accumulate on the driveway. Mrs. Hackmann slipped on the ice as she walked down her driveway to get the mail. The Hackmanns filed suit against the water company seeking recovery for property damages and Mrs. Hackmann’s personal injuries. The trial court granted summary judgment to the water company, but the Court of Appeals reversed in Hackmann v. Missouri American Water Co.51

“Summary judgment is frequently inappropriate in a negligence case particularly where the issue is whether there are facts upon which the trier of fact could find a breach of an admitted or otherwise established duty. Lumbermens Mut. Cas. Co. v. Thornton, 92 S.W.3d 259, 263 (Mo. App. W.D. 2002)….”52 “In any action for negligence, the plaintiff must establish that the defendant had a duty to protect the plaintiff from injury, the defendant failed to perform that duty, and the defendant’s failure proximately caused injury to the plaintiff. L.A.C., ex rel. D.C. v. Ward Parkway Shopping Center Co., L.P., 75 S.W.3d 247, 257 (Mo. banc 2002). Whether a duty exists is purely a question of law. Id. A legal duty owed by one to another may arise from at least three sources: (1) It may be proscribed by the legislative branch; (2) it may arise because the law imposes a duty based on the relationship between the parties or because under a particular set of circumstances, an actor must exercise due care to avoid foreseeable injury; or (3) it may arise because a party has assumed a duty by contract or agreement whether written or oral. Cupp v. National R.R. Passenger Corp., 138 S.W.3d 766, 771 (Mo. App. E.D. 2004)….”53

“While the issue of whether a duty exists is a question for the court, conclusions about the particular facts of the case are an issue for the jury. Lumbermens Mut. Cas. Co. at 267. Where there is a general duty to exercise some type of care, the next question is whether the defendant should or should not have acted in a particular way or refrained from acting. Lumbermens Mut. Cas. Co., 92 S.W.3d at 267. This analysis is evaluated based on the facts of the case and this determination is an issue for the jury. Id. Here, Water Company has a duty to control the water flowing through and from its water main. See Long v. Spanish Lake Service, Inc., 507 S.W.2d 935 (Mo. App. E.D. 1974) and Adam Hat Stores v. Kansas City, 316 S.W.2d 594 (Mo. 1958).”54 ‘“[W]hether the duty that exists has been breached is a question of fact for exclusive resolution for the jury.”’55 “The trial court erred in granting summary judgment in favor of Water Company….”56


1 No. SC 89982 (Mo. banc 2009).

2 Id.

3 Id.

4 Id.

5 State of Missouri v. Richard, SC 89832 (Mo. banc 2009).

6 Id.

7 Id.

8 Id.

9 Id.

10 Id.

11 Id.

12 Wiley v. Homfeld, No. WD 69560 and 69599 (Mo. App. W.D. 2009).

13 Id.

14 Id.

15 Id.

16 Id.

17 Id.

18 Id.

19 Id.

20 Id.

21 Id.

22 Id.

23 Beaty v. St. Luke’s Hospital of Kansas City, No. WD 69441 (Mo. App. W.D. 2009).

24 Id.

25 Id.

26 Id.

27 Id.

28 Id.

29 Id.

30 Id.

31 Id.

32 Thomas v. A.G. Electrical, Inc., No. ED 92109 (Mo. App. E.D. 2009).

33 Id.

34 Id.

35 Id.

36 Id.

37 No. ED 92091 (Mo. App. E.D. 2009).

38 Id.

39 Id.

40 Id.

41 Id.

42 Id.

43 No. ED 92377 (Mo. App. E.D. 2009).

44 Id.

45 Id.

46 Id.

47 Id.

48 Id.

49 Id.

50 Id.

51 No. ED 92806 (Mo. App. E.D. 2009).

52 Id.

53 Id.

54 Id.

55 Id., quoting Lumbermens Mut. Cas. Co., 92 S.W.3d at 266.

56 Id.


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