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Brown v. Brown

Court of Appeals of Missouri, Eastern District, Fourth Division

June 13, 2017

KEITH BROWN, Appellant,
v.
MARLENE BROWN, JASON BROWN, CHRISTOPHER ERBLICH, DENNIS BROWN, and JANINE HUTCHINSON SMITH, Respondents.

         Appeal from the Circuit Court of St. Louis County 11SL-PR01336 Honorable Carolyn C. Whittington

          OPINION

          James M. Dowd Judge.

         Keith 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.

         Factual and Procedural Background

         On 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.

         On May 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.

         On April 7, 2014, Marlene Brown and Christopher Erblich filed counterclaims against Appellant for attorney's fees.

         The 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.[1] 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.

         This appeal follows. Additional facts, as relevant, are provided below.

         Standard of Review

         In 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)).

         Violations of Rule 84.04

         Before 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)[2] 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.

         Compliance 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.").

         Nevertheless, 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.

         Points I and IV: The Claim for Breach of Fiduciary Duty Against the Trustees

         In 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 the law.

         To 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.[3] 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).

         In 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.

         Appellant 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 claims.

         The 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."

         Appellant 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 ...


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