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Mintner v. Mintner

Court of Appeals of Missouri, Western District, First Division

August 15, 2017

JOSEPH R. MINTNER, JR., Respondent,
v.
DEBORAH M. MINTNER, Appellant.

         Appeal from the Circuit Court of Clay County, Missouri The Honorable Shane Terril Alexander, Judge

          Before James Edward Welsh, P.J., Lisa White Hardwick, and Gary D. Witt, JJ.

          James Edward Welsh, Presiding Judge.

         Deborah Mintner appeals the circuit court's judgment, following a jury trial, in favor of Joseph Mintner on his claim that Deborah breached her fiduciary duty as the attorney-in-fact under the Durable Power of Attorney of their mother, Eugenia Mintner. We affirm.

         Background

         In June 2011, Eugenia[1] executed a Durable Power of Attorney (DPOA) and her Last Will and Testament. The DPOA named Joseph as her attorney-in-fact. A little over a year later, on July 11, 2012, Eugenia amended her DPOA to name Deborah as her attorney-in-fact. The DPOA did not contain a provision allowing the attorney-in-fact to make gifts of the principal's property.

         Eugenia died on October 30, 2012. Prior to her death, she had told a friend and neighbor, Nancy Pulliam, that she wanted her house to go to Deborah and her money to go to Joseph when she died. Eugenia's Will provided for her residuary estate to be divided equally between her two children. After Eugenia's death, Joseph went to Platte Valley Bank to check on one of her CDs on which he was the transfer-on-death recipient. The bank informed him that the CD no longer existed and suggested that he "talk to his sister."

         Joseph eventually filed a lawsuit against Deborah, claiming that she had breached her fiduciary duties as attorney-in-fact under Missouri's Durable Power of Attorney Act by making a gift to herself of her mother's CDs and bank accounts.[2] He alleged that Deborah had gifted over $80, 000 to herself. The breach of fiduciary duty claim was tried to a jury in December 2015.

         The evidence at trial showed that, in July 2012, Deborah presented Eugenia's DPOA to the Platte Valley Bank seeking access to Eugenia's $65, 800 CD (which named Joseph as the transfer-on-death recipient). When the bank eventually permitted Deborah access to the CD, Deborah closed the account, transferred the funds into another account in her mother's name and then wrote a check out of that account and deposited it into her own bank account. Deborah used her position as her mother's attorney-in-fact to do the same thing with another of her mother's CDs (valued at over $7, 000). Deborah also used her position as attorney-in-fact to add herself as the payable on death recipient of the funds in Eugenia's account at U.S. Bank.

         Deborah admitted that she used the DPOA to withdraw $72, 148 from her mother's bank accounts and placed the money into accounts in her own name, purportedly so that she could pay Eugenia's bills. Deborah claimed that she was following her mother's explicit oral instructions to make those transactions and argued that she was required by Missouri's DPOA statutes to follow those oral instructions. Deborah presented the testimony of Eugenia's niece and Eugenia's sister-in-law, both of whom testified that they heard Eugenia tell Deborah to cash in the CDs and put them in an account with her name on it so that she would have access to the funds.

         The jury found in favor of Joseph on his breach of fiduciary duty claim and assessed damages at $65, 815, plus interest. The jury also found that Deborah was liable for Joseph's attorneys' fees. On December 11, 2015, the circuit court entered its judgment as to those claims. The amount of attorney fees and Joseph's two equitable claims against Deborah and her husband, Stanley Kaminski, (i.e., claims of unjust enrichment and for a constructive trust) were left to be decided by the trial judge. Following a hearing on March 16, 2016, the trial court issued its final judgment on May 26, 2016, confirming its rulings in the prior judgment, granting Joseph $63, 745.11 in attorneys' fees, and denying relief on Joseph's two equitable claims.

         Point IV: Authority to Consider this Appeal

         We first consider Deborah's Point IV, in which she addresses the authority of this Court to consider this appeal. An appellate court has a duty, sua sponte, to examine its authority to address the merits of an appeal. Title Partners Agency, LLC v. Dorsey, 308 S.W.3d 308, 310 (Mo. App. 2010). In order to have such authority, the judgment that is being appealed must be a final judgment; if it is not, then we lack authority and must dismiss the appeal. Id.; § 512.020.[3]

         In Point IV, Deborah argues that this Court has the authority to consider her appeal of the May 26, 2016, final judgment because the trial court continued to have jurisdiction over the case until it ruled on Joseph's Counts IV and V for equitable relief against Deborah and Stanley, which it did not do until May 26, 2016. She therefore contends that her notice of appeal, which she filed on June 2, 2016, was timely filed.[4]

         As a general rule, this Court has the authority to consider only a final judgment. City of Kansas City v. Woodson, 130 S.W.3d 7, 10 (Mo. App. 2004). For a judgment to be final and appealable, it must dispose of all issues and all parties in the litigation and leave nothing for future determination. Title Partners, 308 S.W.3d at 310; Rule 74.01(b). Any judgment as to fewer than all parties or all claims is merely an "interlocutory judgment" that "reserves and leaves some further question or direction for future determination and is thus not final for purposes of appeal." Joy v. Safeway Stores, Inc., 755 S.W.2d 13, 14 (Mo. App. 1988).[5]

         In his Second Amended Petition for Damages, Joseph sued both Deborah Mintner and Stanley Kaminski. As the trial court stated in its December 11, 2015, judgment, "no claim involving Stanley Kaminski [was] presented to the jury." The only claim submitted to the jury was Joseph's claim against Deborah for breach of fiduciary duty, on which the jury found in ...


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