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Turner v. Pence

Court of Appeals of Missouri, Western District, Third Division

March 28, 2017

TRUDY TURNER, Respondent,
LARRY PENCE, ET AL., Appellants.

         Appeal from the Circuit Court of Dekalb County, Missouri The Honorable Thomas N. Chapman, Judge

          Before Division Three: Victor C. Howard, Presiding Judge, Gary D. Witt, Judge and Zel M. Fischer, Special Judge.

          Gary D. Witt, Judge.

         Larry Pence ("Larry") and Roland Pence ("Roland") (collectively, the "Appellants") appeal from the Amended Findings of Fact, Conclusions of Law and Interlocutory Judgment in Partition of the Circuit Court of DeKalb County ("the Judgment"). The trial court ordered that certain real estate and personal property be sold at a partition sale and, after payment of expenses, that the proceeds be divided among the parties. Appellants' claim that they were entitled to a substantially greater share of the proceeds based upon their contribution to the property based on years of work on the property. The trial court denied most of this claim. The Appellants raise five points on appeal, challenging the trial court's Judgment with respect to the denial of their claims for equitable liens against the property. We affirm.

         Factual Background

         The underlying partition action in this case was filed by Respondent Trudy Turner ("Turner") in order to determine her interests in the real and personal property inherited by her and her siblings after the death of their mother Gertrude Pence ("Gertrude").[1] Turner, Larry, Roland, and Joan Tyrell ("Tyrell") are siblings and the children of Gertrude and Carl Pence ("Carl"). Carl predeceased Gertrude on March 3, 2006 without a will, and Gertrude inherited all his property. Gertrude died intestate on December 14, 2008, and Larry was appointed personal representative of her probate estate on May 19, 2009.

         The real property consists of Tract I, encompassing 345 acres in DeKalb County, Missouri (the "Main Farm").[2] Tract II encompasses 160 acres in Worth County, Missouri (the "Denver Property"). Tract III encompasses 40 acres in DeKalb County, Missouri, of which Gertrude owned a one-half interest ("Grandma's Forty"). The other one-half interest in Grandma's Forty was held by the Pence siblings' cousins Hollis Gay McCauley ("McCauley") and Dee Anne Richardson ("Richardson"). Gertrude's personal property consisted of farm equipment and other equipment purchased for the operation of the farm by Gertrude's estate.

         The Probate Court of DeKalb County approved the final settlement and distribution of Gertrude's probate estate on September 11, 2012. The four children were determined to be the sole heirs of Gertrude's real and personal property. They were declared equal owners of the Main Farm and the Denver Farm, and the remaining assets were ordered to be divided equally among the four children. No appeal was filed from the final judgment of the probate case. Grandma's Forty was not adjudicated in the probate case, and the trial court found in the current action, with the agreement of the parties, that Gertrude's one-half interest in the Grandma's Forty property passed to the Pence children equally.

         Turner filed her Petition for Partition on April 19, 2013, which was later amended ("Petition"). The case was tried to the court without a jury. For simplification and with no objection, Larry and Roland requested that their interests be considered by the court to be the same and that the evidence presented by one would apply to the other. A number of defendants failed to answer the Petition and were deemed to be in default, including Tyrell, the Federal Deposit Insurance Corporation ("FDIC"), and McCauley and Richardson.[3]

         Turner, Larry, Roland, and Tyrell grew up with their parents on the Main Farm. At that time, the farm was approximately 800 acres and had a 500 head cattle operation. In the mid-1980s, the daughters Tyrell and Turner became estranged from the family. At that time, Gertrude began to have mental health problems that resulted in the estrangement of Tyrell and Turner's relationship from their parents and brothers. From the mid-1980s to the time of trial, Tyrell and Turner never went back to the farm and were not involved in any way with the farming operation.

         The family's farming operation encountered financial difficulties in the mid-1980s resulting in a foreclosure that reduced the size of the farm acreage and drastically reduced the cattle operation. The farm remained in debt to the FDIC, which obtained a judgment lien on the real property in the amount of $430, 173.44 on May 1, 1990. Around the same time, Carl and Gertrude separated, with Gertrude remaining in their home on the Main Farm and Carl moving into the home of Roland. Roland lived on the Main Farm in a separate house from 2007 through trial and paid no rent to his parents, Gertrude's estate, or to the co-owners after Gertrude's death. Larry was named as guardian and conservator for Gertrude in April of 2004. After Gertrude's death Larry was named as Personal Representative of her probate estate.

         Sometime before 1990, Larry and Roland began to take a substantial role in helping on the Main Farm. They greatly increased the number of tillable acres, planted and harvested crops on the Main Farm, raised cattle and gave the revenue from the crops and cattle to Gertrude. There was no formal agreement or partnership with Gertrude or Carl, and Appellants never asked their parents for reimbursement for labor or services and there was no agreement to pay them for the labor or expenses they incurred. Although Larry testified that he expected he would be reimbursed in some way for his work, there was never an agreement that the land or any inheritance would be used to repay him for the services.

         The expenses of the farming operation were submitted to the Probate Court during the pendency of Gertrude's guardianship/conservatorship and her subsequent decedent's estate. No claims were submitted to either estate for repairs or improvements to the land provided by Appellants.

         Appellants asserted a counterclaim in the partition action seeking equitable liens for their contributions to the real property, in addition to improvements thereto, from 1990 to the time of trial. They claimed that the funds they earned for their mother through their planting, harvesting, and sale of crops and cattle went toward paying the judgement lien on the Main Farm and Denver Property held by the FDIC.[4] In addition, they offered an exhibit which itemized their claimed contributions to the farm and farm operations, including improvement to the real property. Appellants also offered expert testimony regarding the improvements to the real property they made, including the clearing of land into tillable acreage both before and after Gertrude's death. After Gertrude's death, Appellants cleared fifteen acres on the Main Farm and 38 acres on the Denver Property to make it tillable for crops and that enhanced the farms values by $3, 000 and $19, 000 respectively. Appellants claimed they should be credited contributions for their efforts from 1990 until the time of trial in the amount of $531, 053.14. Turner also claimed a set-off against any lien for the reasonable rental value of the real property after she became a co-tenant on December 14, 2008, because Appellants had exercised exclusive control over the property after she became a partial owner of the property. The parties agreed that the property could not be divided in kind without great prejudice to the parties, and the trial court found that based on the nature and amount of the real property sought to be divided and the number of owners that the property should be sold and the proceeds divided between the owners.

         The court determined that Appellants were not entitled to equitable liens for any contributions they made to the property prior to the death of Gertrude on December 14, 2008. The trial court found that following December 14, 2008 that Appellants were entitled to reimbursable expenditures and improvements in the total sum of $26, 998.24 broken down specifically as; $3, 653.74 in insurance expenditures, $1, 344.50 in tax expenditures, $3, 000 for the clearing and improvement on the Main Farm, and $19, 000 for clearing and improvement on the Denver Property. In addition, the trial court found Turner was entitled to an off-set for 1/4th of the reasonable rental value of the property in the amount of $21, 256.75. This appeal follows. Additional facts will be presented as necessary in the argument section below.

         Standard of Review

A partition is a court-tried action reviewed under the standard announced in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Felderman v. Zweifel, 346 S.W.3d 386, 388 (Mo. App. W.D. 2011). Thus, the judgment will be affirmed 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. Id. The appellate court accepts all evidence and inferences therefrom in the light most favorable to the prevailing party and disregards all contrary evidence. MC Dev. Co., LLC v. Central R-3 School Dist. of St. Francois Co., 299 S.W.3d 600, 602 (Mo. banc 2009). Great deference is given to the trial court's resolution of conflicts in evidence and its credibility determinations. Id. An appellate court should exercise the power to set aside a judgment on the ground that it is against the weight of the evidence only with caution and with a firm belief that the judgment is wrong. Id.

Maskill v. Cummins, 397 S.W.3d 27, 32-33 (Mo. App. W.D. 2013).


         Point One

         In Point One on appeal, the Appellants argue the trial court erred in finding Larry and Roland "made no contribution or payment for the purchase of the Main Farm and the Denver Property, because they were entitled to full ownership or a disproportionate ownership share, in that their contributions paid off the mortgage loan due to the FDIC."

         Unless otherwise specified in a deed, it is presumed that co-tenants possess equal ownership shares in real property. Id. at 33 (citing Hoit v. Rankin, 320 S.W.3d 761, 772 (Mo. App. W.D. 2010)). This presumption, however, may be rebutted by evidence that the co-tenants contributed unequally toward the purchase price of the property. Id.

         The Appellants' argument in this point goes far beyond their claim in their point relied on, which specifies that their claim of error is that their contributions toward paying off the judgment lien held by the FDIC entitled them to full ownership or a disproportionate ownership share in the Main Farm and Denver Property.

Rule 84.04(e) states that the argument section of the brief "shall be limited to those errors included in the 'Points Relied On.'" See Ashworth v. City of Moberly, 53 S.W.3d 564, 578 n.5 (Mo. App. W.D. 2001). We are not required on appeal to address arguments not made in the point relied on. State v. Dudley, 51 S.W.3d 44, 53 (Mo. App. W.D. 2001). "Issues raised only in the argument portion of the brief are not preserved for ...

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