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Nestel v. Rohach

Court of Appeals of Missouri, Western District, Third Division

June 27, 2017

MARK NESTEL, ET AL., Respondents,


          Before: Anthony Rex Gabbert, Presiding Judge, Victor C. Howard, Judge and Cynthia L. Martin, Judge


         Melissa 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.


         Robert 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.

         On 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.[1]

         On 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%.

         On 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[2] 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 amendment:

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

         On July 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."

         Starting 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



Commerce Bank

01/02/2014 & 01/09/2015

$17, 939.28


National Bank of Kansas City


$6, 232.81


United Missouri Bank


$4, 800.73


State Farm #2612


$6, 454.05


State Farm #3454


$50, 878


Computershare IBM Stock


$96, 000[3]


Waddell & Reed IRA


$476, 735.40

         These accounts were the bulk of Joanne's assets.

         Joanne 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, [4] was filed on October 14, 2015.

         The 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.

         This appeal by Melissa followed.

         Standard of Review

         "We 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).


         In her 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 of Joanne.

         "Undue 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 omitted).

         "Undue 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).

         "A 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 apply."

         Melissa's 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.

         Though 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. ...

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