Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of St. Louis County 11SL-PR01336
Honorable Carolyn C. Whittington
M. Dowd Judge.
Brown ("Appellant") appeals the trial court's
judgment entered in favor of Respondents after a bench trial.
The court rejected Appellant's claims for breach of
fiduciary duty against Marlene Brown, Jason Brown, and
Christopher Erblich as the trustees of the Harlin Brown
Revocable Living Trust ("the Trust"), and the court
awarded attorney's fees to Marlene Brown in her capacity
as a trustee. Appellant asserts five points of trial court
error: (1) that the court erred by failing to find that the
trustees breached their fiduciary duties to the Trust; (2)
that the court erred by admitting certain evidence of
Appellant's conduct which he claimed was inadmissible
character evidence; (3) that the court erred by failing to
sua sponte recuse itself after admitting the
above-described evidence; (4) that the court abused its
discretion in connection with its assessment of the
credibility of the witnesses at trial; and (5) that the court
abused its discretion by awarding attorney's fees to
Marlene Brown in her capacity as a trustee. We affirm.
and Procedural Background
October 10, 1995, Harlin Brown ("Grantor") executed
the Trust, which was restated on June 5, 2001 and amended by
Grantor numerous times prior to his death on January 15,
2007. From the creation of the Trust until his death, Grantor
was the sole trustee. At the time of his death, Grantor was
married to Marlene Brown and she became co-trustee on the
date of her husband's death. Christopher Erblich, an
estate planning attorney who assisted Grantor in executing
the Trust, also served as co-trustee from Grantor's death
until May 14, 2009. Jason Brown, one of Grantor's sons,
served as co-trustee with Marlene Brown from May 14, 2009,
until December 31, 2012.
12, 2011, Appellant, who is Grantor's eldest son, filed
this lawsuit against Marlene Brown, his brother Jason Brown,
and Christopher Erblich. Marlene Brown and Jason Brown were
sued both in their individual capacities as beneficiaries of
the Trust, and in their capacities as trustees. On July 25,
2012, Appellant filed his first amended petition which joined
as interested and necessary parties Appellant's brother
Dennis Brown, and Marlene Brown's daughter Janine
Hutchinson Smith, both of whom were also beneficiaries of the
Trust. And on September 12, 2012, Appellant filed his second
amended petition, which added the breach-of-fiduciary-duty
claims at issue on this appeal.
April 7, 2014, Marlene Brown and Christopher Erblich filed
counterclaims against Appellant for attorney's fees.
case was tried by the court over the course of three days in
mid-October 2014. On July 29, 2015, the court entered
judgment in favor of Respondents on Appellant's second
amended petition, and in favor of Marlene Brown and
Christopher Erblich on their counterclaims for attorney's
fees, with the amount to be determined at a later date by the
court. On April 19, 2016, the court entered an
award of attorney's fees in the amount of $127, 837.51 in
favor of Marlene Brown and Christopher Erblich.
appeal follows. Additional facts, as relevant, are provided
a court-tried case, we affirm the judgment below if it is
supported by substantial evidence, is not against the weight
of the evidence, and does not erroneously declare or apply
the law. In the Estate of McKenna, 500 S.W.3d 850,
855 (Mo.App.E.D. 2016) (citing Murphy v. Carron, 536
S.W.2d 30, 32 (Mo.banc 1976)). We view the evidence in the
light most favorable to the trial court's judgment,
disregarding all contrary inferences and evidence.
Id. (citing In the Matter of SJM, 453
S.W.3d 340, 342 (Mo.App.E.D. 2015)). So long as the trial
court's factual determinations are supported by
competent, substantial evidence, we defer to them
"because [the trial court] is in a better position not
only to judge the credibility of the witnesses and the
persons directly, but also their sincerity and character and
other trial intangibles which may not be completely revealed
by the record." Pearson v. Roster, 361 S.W.3d
36, 44 (Mo.banc 2012) (citing White v. Dir. of
Revenue, 321 S.W.3d 298, 308-9 (Mo.banc 2010)).
of Rule 84.04
we discuss Appellant's several points on appeal, we are
compelled to note that Appellant's second, third, and
fourth points relied on violate our briefing rules. Rule
84.04(d)(1)(A) requires that each point relied on
identify the trial court ruling or action that the appellant
challenges. Appellant's fourth point fails to comply.
Rule 84.04(e) requires that the appellant's arguments be
limited to those errors included in the "Points Relied
On." Appellant's arguments under his second and
third points violate this rule.
with the Rule 84.04 briefing requirements is mandatory in
order to ensure that appellate courts do not become advocates
by speculating on facts and arguments that have not been
asserted. Null v. New Haven Care Or., Inc., 425
S.W.3d 172, 177 (Mo.App.E.D. 2014). Rule 84.04 violations
constitute sufficient grounds for dismissal of an appeal.
Al-Hawarey v. Al-Hawarey, 388 S.W.3d 237, 241
(Mo.App.E.D. 2012). Even so, we have the discretion to review
non-compliant briefs ex gratia where the argument is
readily understandable. Scott v. King, 510 S.W.3d
887, 892 (Mo.App.E.D. 2017) (citing Null, 425 S.W.3d
at 177-78). We cautiously exercise this discretion because
each time we review a noncompliant brief ex gratia
("[a]s a favor; not legally necessary, " Ex
gratia, Black's Law Dictionary (9th ed. 2009)), we
are concerned that the party who filed the brief might look
past the fact that it is being reviewed not out of legal
necessity but as a favor, and might conclude that substandard
briefing is somehow acceptable, even though Missouri
authorities state univocally that it is not. See, e.g.,
Scott, 510 S.W.3d at 892 ("[E]ach time we review a
noncompliant brief ex gratia, we send an implicit message
that substandard briefing is acceptable. It is not.").
we review ex gratia Appellant's deficient points
relied on but only to the extent the content of each argument
has been properly preserved or can be readily ascertained.
I and IV: The Claim for Breach of Fiduciary Duty Against the
his first point on appeal, Appellant contends that the trial
court erred by failing to find that the trustees breached
their fiduciary duties to the Trust. And in his fourth
point-which we consider not as an independent point but as a
supporting argument for his first point--Appellant asserts
that the court abused its discretion in connection with its
assessment of the credibility of the witnesses at trial
relating to their testimony about the distributions to
Marlene Brown. We find no error because Appellant has failed
to show that the trial court's ruling was unsupported by
substantial evidence, was against the weight of the evidence,
or was based on an erroneous declaration or application of
prevail on a claim of breach of fiduciary duty, a plaintiff
must show: (1) the existence of a fiduciary duty; (2) a
breach of that fiduciary duty; (3) causation; and (4) harm.
Matter of Wilma G. James Trust, 487 S.W.3d 37, 48
(Mo.App.S.D. 2016). Trustees have a duty to administer a
trust in good faith, in accordance with its terms and
purposes and the interests of the beneficiaries, and in
accordance with applicable law. §
456.8-801. The trustee is bound to uphold the
validity of a trust, preserve the trust assets, and carry out
completely the grantor's intent. Murphy v. Dal ton
s 314 S.W.2d 726, 732 (Mo.banc 1958). In
general, the presumption is that a trustee administers the
trust in good faith and the burden of proving the contrary is
on the party questioning the trustee's actions and
seeking to establish a breach of trust. Barnett v.
Rogers, 400 S.W.3d 38, 48 (Mo.App.S.D. 2013).
determining the meaning of trust provisions, the paramount
rule of construction is that the grantor's intent is
controlling and such intention must be ascertained primarily
from the trust instrument as a whole. O'Riley v. U.S.
Bank, N.A., 412 S.W.3d 400, 406 (Mo.App.W.D. 2013)
(citing First Nat 7 Bank of Kansas City v.
Hyde, 363 S.W.2d 647, 652 (Mo.banc 1962)). A grantor is
presumed to know and intend the legal effect of the language
he uses in the trust. Id. And where the language
used is clear and of well-defined force and meaning, it must
stand as written. Id.
argues that the trustees in connection with the distributions
to Marlene Brown failed to follow the terms of the Trust and
made excessive distributions, and, thus, failed to act in
good faith and breached their fiduciary duties to the Trust.
We find no error in the trial court's rejection of these
Trust contains several provisions pertinent to the
trustees' distributions of trust principal to Marlene
Brown. First, the Trust directs that "[t]he Trustee
shall distribute to the Grantor's spouse, from time to
time, such amounts of the principal of the trust estate as
necessary to provide for the health, education, maintenance
and/or support of the Grantor's spouse." In making
such distributions, the Trust provides, "[T]he Trustee
shall take into consideration all other sources of support
which the Grantor's spouse may have to the actual
knowledge of the Trustee. It is the Grantor's desire that
[his] spouse be able to live in a manner which shall be
consistent with [her] accustomed manner of living . . .
." Further, the Trust mandates that "the Trustee
shall give primary consideration to the needs of the income
beneficiary or beneficiaries [(here, only Marlene Brown)],
rather than to the conservation of the trust estate for
persons having remainder interests."
raises two arguments that the trustees did not act in good
faith in carrying out these terms. First, Appellant contends
that the trustees had a duty to preserve the principal of the
Trust for contingent remaindermen, including Appellant, and
failed to carry out that duty. Second, Appellant asserts that
even if the trustees did not have such a duty, they did not
follow the terms of the Trust and made distributions of
principal to Marlene ...