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Labantschnig v. Bohlmann

Court of Appeals of Missouri, Eastern District, Second Division

August 26, 2014

VICTOR D. LABANTSCHNIG, JR., Respondent,
v.
KENNETH H. BOHLMANN, and, DENNIS G. LABANTSCHNIG, Appellants

Page 270

Appeal from the Circuit Court of St. Louis County. 11SL-CC02900. Honorable Thea Anne Sherry.

For Kenneth H. Bohlmann and Tim Lemen, APPELLANTS: Matthew Rossiter, ROSSITER & BOOCK, LLC, Clayton, MO; SUMMERS COMPTON WELLS LLC, St. Louis, MO.

For Dennis G. Labantschnig, Jr., APPELLANT: Daniel A. Raniere, AUBUCHON, RANIERE & PANZERI, P.C., St. Louis, MO.

FOR RESPONDENT: Theodore Dennis Dearing, DEARING & HARTZOG LLC, Clayton, MO.

Mary K. Hoff, Judge. Sherri B. Sullivan, Presiding Judge, and Philip M. Hess, Judge, concur.

OPINION

Page 271

Mary K. Hoff, Judge.

Kenneth H. Bohlmann (Trustee) and Dennis G. LaBantschnig (Dennis) appeal from the judgment following an equity suit brought by Victor D. LaBantschnig, Jr. (Victor)[1] against Trustee alleging breach of fiduciary duty under the Victor D. LaBantschnig, Sr. Revocable Living Trust (Trust). We affirm.

Factual and Procedural Background

On February 10, 1995, Victor LaBantschnig, Sr. (Grantor) created the Trust, subsequently amended, which named Dennis and Victor as sole beneficiaries. The Trust was to be distributed pursuant to the terms of Item Four, which provides the following:

After the death of the Grantor, all property then constituting the principal of the trust estate...shall be administered as follows:
(A) The Trustees are directed to pay over, free from trust, to Grantor's son, DENNIS G. LABANTSCHNIG, if living, the sum of Fifty Thousand Dollars ($50,000.00)....
(B) If, at the time of Grantor's death, the property known as and numbered 2951 Finestown Road, St. Louis, Missouri 63129 (the " Residential Real Estate" ), is held as part of the trust estate, the Trustees shall employ two (2) qualified appraisers to conduct an appraisal of the Residential Real Estate and the average of the appraised values shall determine the value thereof, provided, however, that if the results of the two appraisals differ by more than twenty percent (20%), the two appraisers shall select a third appraiser to appraise the Residential Real Estate, and the average of the two values which are closest to each other shall determine the value of the Residential Real Estate. When making the appraisal of the Residential Real Estate, however, the appraisers shall exclude from the total value thereof the value of the addition to the detached garage which has been constructed thereon. (Grantor acknowledges that the cost of construction of said addition to the detached garage was paid by Grantor's son, DENNIS G. LABANTSCHNIG, and the value thereof is not to be included in Grantor's estate for purposes of division of the trust estate, as hereinafter provided.) The value of the ground on which the addition to the detached garage is built is, however, to be included in the valuation of the Residential Real Estate.

Item Eleven of the Trust states:

If, at any time, either before or after Grantor's death, either of Grantor's said sons shall, either directly or indirectly, contest the validity of this Trust Agreement, or shall attempt to vacate or change the same, or to alter or change any of the provisions hereof, then such son shall be thereby deprived of any interest hereunder and of any share of the trust estate, and the share of such son shall go to the other of Grantor's said sons.

On April 25, 2010, Grantor died and Trustee became the successor Trustee of the estate, which was valued at $947,147.84 and consisted of real estate as well as certificates of deposit, cash and liquidated stocks. In May 2010, following Grantor's death, Trustee met with both beneficiaries to discuss administration of the estate, including

Page 272

appraisal of the real estate. Trustee proceeded to obtain the two required appraisals, neither of which included ...


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