Court of Appeals of Missouri, Western District, First Division
JOSEPH R. MINTNER, JR., Respondent,
DEBORAH M. MINTNER, Appellant.
from the Circuit Court of Clay County, Missouri The Honorable
Shane Terril Alexander, Judge
James Edward Welsh, P.J., Lisa White Hardwick, and Gary D.
Edward Welsh, Presiding Judge.
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.
2011, Eugenia 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
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."
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. 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.
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.
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.
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.
IV: Authority to Consider this Appeal
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.
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
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).
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