Court of Appeals of Missouri, Western District, Second Division
JOSEPH WILKINSON AND DONNA L TWEEDIE, AS SUCCESSOR CO-TRUSTEES OF THE NELVADA DEAN TRUST, Respondents,
NATIVE AMERICAN RIGHTS FUND, ET AL., Appellants.
from the Circuit Court of Lafayette County, Missouri The
Honorable Dennis A. Rolf, Judge.
Before: Anthony Rex Gabbert, Presiding Judge, Thomas H.
Newton, Judge, and Gary D. Witt, Judge.
ANTHONY REX GABBERT, JUDGE.
American Rights Fund, et al. ("Appellants") appeal
a trial court's entry of summary judgment in favor of
Joseph Wilkinson and Donna L. Tweedie
("Respondents"), who are the successor co-trustees
of the Nelvada Dean Trust ("Trust"). Appellants
raise two points on appeal. Both points contend the court
erred, because it relied on extrinsic evidence to interpret
an unambiguous trust provision. We affirm.
Trust owns a 300-acre tract of land. Following the death of
Nelvada Dean ("Trustor") on December 9, 2012,
Respondents hired a land surveyor to except out of the 300
acres a rectangular tract ("Rectangle") containing
Native American mounds and other sacred sites, per the
amended trust document. Respondents offered to deed the
Rectangle to Appellants, but Appellants refused, insisting on
an archaeological survey of the 300 acres to determine
whether additional Native American sites exist.
March 16, 2016, Respondents filed a petition for declaratory
judgment, alleging the Rectangle satisfied the Trust's
bequest. Appellants filed an answer and three counterclaims
to Respondents' petition. Appellants' answer argued
Trustor never intended to restrict the Rectangle to sites
known to Trustor. Appellants' counterclaims argued for
declaratory judgment (requiring an archaeological survey),
removal of successor co-trustees, and attorney fees. The
parties then executed a joint stipulation of material facts.
Among those stipulations was the identification of several
mounds and other sites Trustor believed to be Native
American. The parties later filed individual motions for
summary judgment on the petition and counterclaims.
November 29, 2016, the court granted Respondents' and
denied Appellants' motions for summary judgment. The
court concluded, "[t]he trust document does not direct
the Trustee … to locate any additional Native American
mounds or sacred sites … it was the intent of the
Trustor to direct the Trustee to obtain a land survey which
would allow the transfer of a rectangular shaped section of
land containing Native American sites that she was aware
of." We affirm.
first argue the trial court erred in granting summary
judgment on the declaratory judgment action, because the
court relied on extrinsic evidence to interpret a trust
provision both parties agree is unambiguous. In reviewing a
declaratory judgment action decided by summary judgment, our
Supreme Court has stated:
The propriety of a grant of summary judgment is an issue of
law that this Court reviews de novo … This Court
reviews the record in the light most favorable to the party
against whom judgment was entered. Summary judgment is
appropriate when the moving party has demonstrated, on the
basis of facts as to which there is no genuine dispute, a
right to judgment as a matter of law. Because this case
concerns declaratory judgment, the trial court's decision
will be affirmed unless there is no substantial evidence to
support it, it is against the weight of the evidence, or it
erroneously declares or applies the law.
American Federation of Teachers v. Ledbetter, 387
S.W.3d 360, 362-63 (Mo. banc 2012) (citations omitted). We
conclude the trial court did not erroneously rely on
extrinsic evidence in determining Trustor's intent.
issue is Article 3.1(b) of the trust document's Fifth
Amendment, which reads:
… the trustee shall have the real estate legally
described above surveyed to except out … all land that
contains a Native American mound and/or other Native American
sacred sites. The excepted piece of land shall be surveyed so
that the boundaries can be legally described for said piece
of land. The newly surveyed land shall be in the shape of a