Court of Appeals of Missouri, Western District, Third Division
FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE
HONORABLE KATHLEEN FORSYTH, JUDGE
Before: Anthony Rex Gabbert, Presiding Judge, Victor C.
Howard, Judge and Cynthia L. Martin, Judge
C. HOWARD, JUDGE
Rohach appeals the judgment of the Jackson County Circuit
Court in a discovery of assets action alleging undue
influence related to beneficiary designations on seven
accounts. The jury found no undue influence on four of the
disputed accounts and undue influence on three other
accounts. In her first point on appeal, Melissa Rohach
complains the trial court erred in denying her motions for
directed verdict and judgment notwithstanding the verdict
because the evidence does not support a finding of undue
influence. In her second point on appeal, Melissa Rohach
claims the trial court erred in denying her alternative
motion for new trial because the jury verdict was
inconsistent. Given the disposition of the first point on
appeal, Melissa Rohach's second point is not addressed.
The judgment is reversed.
and Joanne Nestel were married for almost 51 years. They had
four children: Mary Nestel, Mark Nestel, Michelle Helzer, and
Melissa Rohach. Robert operated a State Farm office. His
daughter Mary worked for him for 27 years. Robert died on
December 20, 2013. His funeral was on December 28, 2013.
January 6, 2014, Joanne learned that Robert's will left
his estate to the four children. She also learned that he
left his business to the four children. Joanne was previously
unaware that she would not receive assets through
Robert's will or business.
January 23, 2014, Joanne executed a will setting forth her
testamentary intent. In that will, she nominated her daughter
Melissa as personal representative of her estate. She
nominated Melissa's husband Chris Rohach (Joanne's
son-in-law) as first successor personal representative.
Joanne left 20% of her estate to each of her four children
and 5% of her estate to each of her four grandchildren, for a
total of 100%.
March 24, 2014, Joanne modified her will. She left her house
and all of its contents (unless excluded later in the
amendment) to Melissa. The amendment stated: "In the
case that my daughter Melissa A. Rohach precedes me in death,
then her children, Collin P. Rohach and Carrigan H.
Rohach will get her share of my estate that I
have noted in my Will and the amendment to my original
Will." The following property was excluded in the
Michelle Nestel-Helzer - All the Belleek Christmas Ornaments
and wedding picture
Mary Nestel - one oriental bowl
Mark Nestel - the musical clowns
Mary Ann Nestel the cross from Robert's funeral
1, 2014, Joanne changed her will again. She identified a loan
to which she was the mortgage holder. She left the incoming
loan payments to her four grandchildren. The document stated:
"I would like Colin Rohach to be in charge of making
sure all four grandchildren get an equal monthly share of
what is left on the loan. Colin is in charge of making all
decisions on the home loan."
in January 2014, Joanne made a series of non-probate
transfers to Melissa. With these transfers, Joanne made
Melissa the beneficiary of various accounts. These accounts
were not part of Joanne's estate and were not governed by
the will dividing the estate between Joanne's children
and grandchildren. The following chart shows the account
locations, date of transfer to Melissa, and account balance:
Date of Designation to Melissa
01/02/2014 & 01/09/2015
National Bank of Kansas City
United Missouri Bank
State Farm #2612
State Farm #3454
Computershare IBM Stock
Waddell & Reed IRA
accounts were the bulk of Joanne's assets.
died on September 7, 2014. On January 21, 2015, Melissa's
siblings filed a petition to remove her as personal
representative of her mother's estate and for discovery
of assets. In May 2015, the circuit court appointed Brian
Tillema as Administrator Ad Litem for the purpose of
litigating the discovery of assets claim on behalf of the
Estate of Joan Nestel. An amended petition to remove Melissa
as personal representative and for discovery of assets,
brought on behalf of the estate and the siblings,
filed on October 14, 2015.
matter proceeded to a jury trial in March 2016. After four
days of trial, the jury returned a verdict that found no
undue influence by Melissa as to accounts 1, 2, 3, and 4 in
the above chart. The jury found that there was undue
influence as to accounts 5, 6, and 7 in the above chart.
appeal by Melissa followed.
treat an appeal from a trial court's denial of motions
for directed verdict and judgment notwithstanding the verdict
in the same manner; our primary inquiry is whether the
plaintiff made a submissible case." Ruestman v.
Ruestman, 111 S.W.3d 464, 478 (Mo. App. S.D. 2003).
"In order for a case to be submitted to the jury, each
and every fact essential to liability must be predicated upon
legal and substantial evidence." Id. "In
determining whether the plaintiff made a submissible case,
the appellate court views the evidence in the light most
favorable to the jury's verdict and gives the plaintiff
the benefit of all reasonable inferences and disregards
evidence and inferences conflicting with the verdict."
Id. "Our courts will not supply missing
evidence or give a party the benefit of unreasonable
speculative or forced inferences." Id.
(internal quotation omitted). "This court may reverse
the trial court's ruling only when there is a complete
absence of probative facts to support the verdict."
Id. "We will not disturb a jury's verdict
when reasonable minds could disagree as to the questions
before the jury and we will reverse only when we find there
is a complete absence of probative facts to support it."
Duerbusch v. Karas, 267 S.W.3d 700, 706-07 (Mo. App.
E.D. 2008) (internal quotation omitted).
first point on appeal, Melissa claims the trial court erred
in denying her motion for directed verdict and judgment
notwithstanding the verdict. She says there was no
substantial evidence to support the jury's finding of
undue influence by Melissa on the three accounts. Melissa
argues that the evidence does not support a reasonable
inference that any actions by Melissa overcame the free will
influence occurs when a party in a position of trust induces
the other, by 'active conduct', to provide a
substantial benefit through the transfer of property."
Id. at 708 (internal citation omitted). "In
determining whether sufficient evidence supports a
presumption of undue influence, we apply a case-by-case
analysis because the exercise of undue influence is often
proved by circumstantial evidence." Id.
"Persons exerting undue influence will do so in as
subtle, furtive, indirect and elusive a manner as possible
and such influence may therefore be shown indirectly by the
reasonable and natural inferences drawn from the facts and
circumstances proved." Id. (internal quotation
omitted). "Thus, as we have held, it is often impossible
to set forth a rigid formula of what facts must be
established to make a submissible case of undue influence by
circumstantial evidence." Id. (internal
quotation omitted). "Factual situations are subject to
such a myriad of variations that any one case is of limited
precedential value." Id. (internal quotation
influence itself is usually defined as such overpersuasion,
coercion, force, or deception as breaks the will power of the
testator or grantor and puts in its stead the will of
another." In re Estate of Hock, 322 S.W.3d 574,
579 (Mo. App. S.D. 2010) (internal quotation omitted).
"Also, in determining whether there is evidence of undue
influence, the court does not have to find the testator or
grantor to be of unsound mind, ... therefore, one may be
unduly influenced while still mentally competent."
Id. (internal quotation omitted).
presumption of undue influence arises in discovery of assets
cases where substantial evidence shows (1) a confidential and
fiduciary relationship; (2) benefaction to the fiduciary; and
(3) some additional evidence from which undue influence may
be inferred." Id. at 579 (internal quotation
omitted). "Once established, the presumption makes a
prima facie case of undue influence, effectively shifting the
burden to the fiduciary to rebut." Id. The
Administrator Ad Litem and Melissa's siblings agree in
their brief that "a confidential relationship was not
proven and therefore the three-element presumption does not
point is focused on an alleged lack of evidence that she
overcame her mother's free will. She claims that none of
the evidence gives rise to a reasonable inference that
Melissa exerted undue influence and overcame Joanne's
free will. Considering the evidence in the light most
favorable to the jury's verdict, this court finds that
Melissa's siblings did not present a submissible case.
Joanne was deceased and unable to testify at trial, her
journals and other writings were admitted into evidence.
These journals demonstrated that Joanne had special affection
for her daughter Melissa and had felt that way for many
years. They also showed that Joanne and Robert had a
turbulent relationship. In an entry from Joanne's journal
dated February 10, 2009, she wrote:
I am loved by so many others outside my family. But I have to
thank Melissa for caring about me the most and loving me with
all her heart and soul. My baby. She is there when no one
else is. And I know the others care, but they didn't do
anything about it like she does. They wonder why I show more
love to her. This is why. ...