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In re Estate of Depew

Court of Appeals of Missouri, Southern District, First Division

February 21, 2017

In the Estate of LOREN LOWELL DEPEW, Deceased
v.
LOREN LLOYD DEPEW, JR., Respondent-Respondent. CHERYL REINAGEL and ROY STEVEN THOMAS, Petitioners-Appellants,

         APPEAL FROM THE CIRCUIT COURT OF IRON COUNTY Honorable Edith R. Rutter

          OPINION

          DON E. BURRELL, J.

         Cheryl Reinagel and Roy Steven Thomas, as co-personal representatives (collectively, "Personal Representatives")[1] of the Estate of Loren Lowell DePew ("Father"), Deceased, appeal the judgment in their action against their step-sibling, Loren Lloyd DePew, Jr. ("Son"), to discover assets and for imposition of a constructive trust. The judgment awarded Personal Representatives $2, 337.59 (a small portion of the amount sought), and it assessed costs to Personal Representatives.

         Personal Representatives' first point claims the trial court erred in applying the law governing Son's fiduciary duty to Father when dealing with certain joint bank accounts ("the Joint Accounts"). Point 1 additionally claims that unspecified "findings of fact . . . were against the manifest [sic] weight of the evidence[.]" Point 2 claims that granting Son a set-off for Father's funeral home expenses was against the weight of the evidence because Father's "funeral bill had already been paid with [Father's] own funds from the Joint Accounts." Point 3 claims that the trial court misapplied the law in denying Personal Representatives an award covering their court costs under Rule 77.01 and section 514.060.[2] Because the trial court reached the correct result, we affirm.

         Applicable Principles of Review and Governing Law

         When reviewing a court-tried case, we will affirm the trial court's judgment "unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Ivie v. Smith, 439 S.W.3d 189, 198-99 (Mo. banc 2014). "Circuit courts are free to believe any, all, or none of the evidence presented at trial[, ]" id. at 200, and "we view the facts in the light most favorable to the judgment." Estate of Hutchison v. Massood, 494 S.W.3d 595, 598 n.2 (Mo. App. W.D. 2016). We review "questions of statutory interpretation de novo[, ]" Ivie, 439 S.W.3d at 202, and we also apply de novo review to the interpretation of court rules. McGuire v. Kenoma, LLC, 447 S.W.3d 659, 662 (Mo. banc 2014).

When reviewing the record in an against-the-weight-of-the-evidence challenge, this Court defers to the circuit court's findings of fact when the factual issues are contested and when the facts as found by the circuit court depend on credibility determinations. A circuit court's judgment is against the weight of the evidence only if the circuit court could not have reasonably found, from the record at trial, the existence of a fact that is necessary to sustain the judgment. When the evidence poses two reasonable but different conclusions, appellate courts must defer to the circuit court's assessment of that evidence.

Ivie, 439 S.W.3d at 206 (citations omitted).

Finally, appellate courts are "primarily concerned with the correctness of the trial court's result, not the route taken by the trial court to reach that result." Business Men's Assur. Co. of Am. v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999). To that end, the judgment must be "affirmed if cognizable under any theory, regardless of whether the reasons advanced by the trial court are wrong or not sufficient." American Eagle Waste Indus., LLC v. St. Louis County, 379 S.W.3d 813, 829 (Mo. banc 2012).

Rouner v. Wise, 446 S.W.3d 242, 249 (Mo. banc 2014).

         Applicable Facts and Procedural Background

         Father suffered a stroke that physically affected the left side of his body, and he began residing in a nursing home in July 2012. At that time, Father had a checking account and a savings account at one bank, and he had a savings account and some certificates of deposit ("CDs") at another bank (collectively, "the old accounts"). Via a power of attorney, Father had previously designated Ms. Reinagel as his attorney in fact.[3]Father had also previously executed a will that, due to Mother having predeceased him, had the effect of bequeathing one-half of his remaining estate to his five children and the other half to his four step-children.

         After Father entered the nursing home, Son went to see Father "like every day[, ]" and Son would sometimes bring Father home on the weekends to allow Father to visit his dog, Juno, a Great Pyrenees, that Son was taking care of. Ms. Reinagel did not visit the nursing home as often.

         In November 2012, Father executed a durable power of attorney ("the POA") designating Son as his attorney in fact. The nursing home's social service coordinator, Belinda Ward, provided the POA form to Father, and she prepared the POA at her "own direction[.]" The POA revoked any other power of attorney previously signed by Father except any "directly related to [his] health care[.]" Among other things, the POA authorized Son to open and close bank accounts, "[c]onduct any business with any banking or financial institution with respect to any of [Father's] accounts, " and to "[a]dd, delete or change beneficiaries to any financial accounts" that Father owned. The POA also provided that Son had the power to "[m]ake gifts from [Father's] assets to members of [Father's] family and to such other persons or charitable organizations with whom [Father has] an established pattern of giving (or if it is appropriate to make such gifts for estate planning and/or tax purposes)" ("the gift provision").

         Later in November 2012, after the POA had been executed, a new checking and new savings account were opened in the name of both Father and Son ("the Joint Checking Account" and "the Joint Savings Account, " respectively. A deposit service representative for the bank, Nicky Proffer, testified that Father and Son came into the bank together "[t]o discuss how to open a new account; a joint account." Father was in a wheelchair. Ms. Proffer recalled that she spent about "35 to 45 minutes" with the men. Father appeared "[c]ompetent" at the time, "[Father] asked questions and gave answers, " and Ms. Proffer did not see any problems with Father's communication. She said that she explained to Father and Son that "joint owner account[s]" would have "both parties' names on them, they have equal rights to the funds." She also explained that if one owner dies, then the account becomes "the other owner's."[4]

         The signature card for the Joint Checking Account identifies the account owners as Father and Son, it bears signatures for both, and the "OWNERSHIP OF ACCOUNT - CONSUMER PURPOSE" includes a box that is marked so as to designate the type ownership as "JOINT - WITH SURVIVORSHIP (AND NOT AS A TENANCY BY THE ENTIRETY OR AS TENANTS IN COMMON)[.]" The signature card for the Joint Savings Account also identifies Father and Son as the account owners, reflects the same designation as to the type of ownership, and shows signatures for both Father and Son.

         The money from the old accounts was eventually transferred into the Joint Accounts, and the money in the Joint Accounts came "solely" from Father. Son testified that he thought the money in the Joint Accounts was to be used to take care of Father and Juno until Father died. After Father's death, Son thought it was to be used for Juno and as he "saw fit[.]" Son testified that Father was "always with" Son when money was deposited to the Joint Accounts. Father signed "instrument[s]" at the banks for the old accounts, but on one occasion in December 2012, Son removed $3, 514.17 from one of the old accounts by signing a withdrawal check in his status as Father's attorney in fact under the POA. Son did this to close out the old account, and the funds were deposited into the Joint Checking Account. Son recalled that this was the only time he had signed one of Father's checks as Father's attorney in fact.

         One of Father's other children, Jutta Ramirez ("Daughter"), testified that she lived in Texas, she saw Father at least twice a year, and she spoke with him daily by phone, both before and after he went into the nursing home. While he was in the nursing home, Father's "state of mind" seemed "[v]ery clear" and "[h]e understood what was going on." Father's monthly income was "[b]arely over $1, 000[, ]" and the nursing home cost $5, 000 per month, so at some point Daughter discussed with her siblings that Father "needed to cash in CDs." Daughter also saw Father writing checks after the Joint Accounts had been opened.

         Father passed away on February 4, 2014. That same day, Son wrote a check from the Joint Checking Account to the funeral home in the amount of $7, 816.00. The next day, Son wrote a check to himself in the amount of $17, 243.31 from the Joint Checking Account and withdrew $27, 800.87 from the Joint Savings Account. Son deposited these funds -- $45, 044.18 -- into his own account ("Son's account").

         Shortly thereafter, Son wrote a check from his own account in the amount of $8, 076 to "redistribute that money" to the Joint Checking Account because there were three outstanding checks remaining after Son closed it. Son explained that "$7, 000" of this was for Father's casket. Personal Representatives' Exhibit 22 is comprised of bank records for the Joint Checking Account, and it reflects an $8, 076 deposit on February 5, 2014. By February 7, 2014, four checks had cleared from the Joint Checking Account, including Son's check for $17, 243.31 -- leaving a balance of $92.50 in the Joint Checking Account after a $7.50 service charge had been deducted. The other checks represented payments of: $107.55 to a pharmacy (with a memo, "Juno"); $53.03 to a feed store (with a memo, "Juno"); and $7, 816.00 to a funeral ...


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