Court of Appeals of Missouri, Eastern District, First Division
In the Matter of the JOSEPH H. KEEVEN REVOCABLE TRUST DATED DECEMBER 13, 2006
MATTHEW J. KEEVEN, Defendant/Third-Party Plaintiff/ Respondent/Cross-Appellant, HARRY KEEVEN, Plaintiff/Respondent, and PATRICIA M. FINK, WILLIAM J. KEEVEN, JOSEPH L. KEEVEN, KATHERINE M. SIESENER, and MARY M. BALDETTI, Defendants/Respondents, and MICHAEL BENTZ, Third-Party Defendant/ Appellant/Cross-Respondent.
from the Circuit Court of St. Louis County Honorable Carolyn
B. SULLIVAN, JUDGE.
Bentz (Bentz) appeals from the trial court's December 20,
2016 Amended Order and Judgment (Amended Judgment or Amended
Judgment by Interlineation) amending by interlineation its
July 29, 2016 Findings of Fact, Conclusions of Law, Order and
Judgment (Judgment or Initial Judgment) entered on Harry
Keeven's one-count petition for Removal of Trustees, for
the Appointment of a Special Fiduciary, Avoidance of Conflict
of Interest Transactions, for an Accounting and for Other
Relief; the Second Amended Third-Party Petition of Matthew
Keeven against Bentz in three counts for Court-Supervised
Administration, to Compel Distribution, or in the
Alternative, to Remove Trustee; the Counterclaim of
Third-Party Defendant Bentz to Matthew Keeven's First
Amended Third-Party Petition in five counts filed; and the
Motion of Harry Keeven for Sanctions Against Matthew Keeven
for his failure to cooperate in discovery in this action.
Matthew Keeven cross-appeals from the Amended Judgment and
the court's denial of his Post-Trial Motions to Amend
Judgment or for New Trial and/or his Motion to Amend the July
29, 2016 Judgment As Modified by the Trial Court's
Amended Order and Judgment of December 20, 2016. We affirm.
and Procedural Background
H. Keeven, who had seven children, died on August 18, 2010.
His children are Joseph L. Keeven, Matthew J. Keeven, Harry
Keeven, William J. Keeven, Katherine M. Siesener, Mary M.
Baldetti, and Patricia M. Fink. On December 13, 2006, Joseph
H. Keeven created the Joseph H. Keeven Revocable Trust (the
Trust), of which he was the Grantor and Trustee. The Trust
named the seven children as beneficiaries, each to take an
equal one-seventh of the remaining assets of the trust after
the termination of the Trust upon Joseph H. Keeven's
death, once all taxes, debts, and expenses incurred by the
Trust and for Joseph H. Keeven's funeral were paid.
Matthew J. Keeven and Patricia M. Fink were named as
successor co-trustees of the Trust after Joseph H.
April 17, 2007, Joseph H. Keeven executed an Agreement of
Limited Partnership known as the J & M Keeven Family,
L.P. (the Family Limited Partnership or FLP). The Agreement
establishing the FLP was executed between Joseph H. Keeven as
an individual and Joseph H. Keeven as Trustee of the Trust.
The FLP Agreement provides that Joseph H. Keeven, as Trustee
of the Trust, was the sole managing partner, sole general
partner, and limited partner of the FLP. Joseph H.
Keeven's seven children are limited partners of the FLP.
Trust and the FLP own certain real estate in St. Louis and
Pike Counties. One of the parcels of real estate in St. Louis
County in which the Trust owns an interest is known as the
Bryan Island Stables and is used as a commercial horse
boarding business. All of the other real property owned by
the Trust and the FLP is used for agricultural purposes,
which includes the production of hay, sod, and row crops,
including soybeans. The various parcels of real estate owned
by the Trust and used for agricultural purposes are commonly
known and referred to as the "Island, " the
"RSK property, " the "FLP ground, " and
the "181 acre Pike County property." The Trust owns
only a one-third interest in the Island and the RSK property.
Several of the Keeven children have pursued income-producing
activities in, on, or about the Trust, FLP, and the
properties owned by those entities, particularly Matthew,
Harry, Patricia, and William, both prior to and after their
2010, a probate estate was opened in the St. Louis County
circuit court. Matthew Keeven and Patricia Fink, during their
tenure as successor co-trustees, have not distributed any of
the Trust property or income to the beneficiaries despite the
fact the Trust terminated on August 18, 2010. While serving
as co-trustee of the Trust, Matthew Keeven conducted farming
activities on the Trust and FLP properties for his personal
benefit. On May 13, 2013, Harry Keeven filed a petition for
Removal of Trustees, for the Appointment of a Special
Fiduciary, Avoidance of Conflict of Interest Transactions,
for an Accounting and for Other Relief. On July 22, 2014,
Patricia and Matthew resigned as trustees and the court
appointed Bentz as successor Trustee of the Trust and
successor personal representative of the Estate of Joseph H.
Keeven, with the consent of all the beneficiaries.
December 18, 2014, Matthew Keeven filed a Third-Party
Petition for Court Supervised Administration and to Compel
Distribution, or, in the alternate, to Remove Trustee,
alleging Bentz was not performing his duties properly and
should be removed. Matthew Keeven filed a First Amended
Third-Party Petition, and later a Second Amended Third-Party
Petition. Trial was held on June 30, 2015 through July 2,
2015; October 13, 2015 through October 14, 2015; and January
25, 2016 through January 28, 2016. On July 29, 2016, the
trial court entered its Judgment against Matthew Keeven in
favor of Bentz, in his capacity as Personal Representative in
the amount of $15, 341.70 and also awarded Harry Keeven's
attorney's fees in the amount of $109, 265.42, to be paid
from the Trust. The Judgment granted Harry Keeven's
Motion for Sanctions and awarded him attorney's fees in
the amount of $25, 000, to be paid by Matthew Keeven
personally. The Judgment declined to remove Bentz.
filed a Motion to Reconsider and Matthew Keeven filed a
Post-Trial Motion to Amend Judgment or for New Trial. The
trial court issued an Order and Judgment of Amendment of
Paragraph 1 of the Initial Judgment and denied Matthew
Keeven's Motion. On December 20, 2016, the trial court
issued its Amended Judgment by Interlineation. In the Amended
Judgment by Interlineation, the trial court concluded because
the Trust terminated upon the death of Joseph H. Keeven on
August 18, 2010, the FLP dissolved on that date, because the
Trust(ee), as sole General Partner of the FLP, withdrew on
that date. Specifically, the trial court stated:
Trustee of the Trust serving as general partner was also the
grantor [settlor] of the Trust. ARTICLE IV of the Trust
provides, in pertinent part, that "[a]fter the death of
the grantor, all of the assets in the trust estate which are
not required for the payments which the trustee makes
pursuant to ARTICLE III hereof shall be distributed in seven
(7) equal shares to [JOSEPH'S SEVEN NAMED CHILDREN], per
stirpes…" Joseph's death on August 18, 2010,
triggered termination of the trust.
The court also stated:
Therefore, Joseph's death, which triggered a termination
of the Trust, also constituted an event of withdrawal of the
Trust as general partner of the FLP under section 359.241,
RSMo, which, in turn, triggered a dissolution of the limited
Keeven, Mary Baldetti, Patricia Fink, and Bentz filed a joint
Motion to Amend or Modify the Amended Judgment. Matthew
Keeven file a Motion to Amend the July 29, 2016 Judgment and
the Amended Order and Judgment of December 20, 2016. Harry
Keeven filed his response to the Motion filed by Matthew
Keeven. Matthew Keeven filed his response to the Motion filed
by Harry Keeven. On April 3, 2017, the trial court denied the
motions filed by Matthew Keeven and the joint motion. This
appeal and cross-appeal follow.
presents two points on appeal. In his first point, he alleges
the trial court erred in amending the Judgment on December
20, 2016, wherein it ruled the Trust and FLP terminated upon
Joseph H. Keeven's death because the trial court failed
to comply with the provisions of Rule 75.01 by failing to
give the parties reasonable notice and an opportunity to be
heard prior to entering said ruling.
second point, Bentz contends the trial court erred in ruling
both the Trust and FLP terminated upon Joseph H. Keeven's
death because unless there is a specific termination date in
the Trust, it does not terminate until the trustee gives a
final accounting and conveys trust property to the
beneficiaries. Bentz maintains because the Trust has not yet
terminated, an act of withdrawal has not yet occurred by the
family limited partnership's general partner under
Keeven presents three points on appeal. In his first point,
he claims the trial court erred in granting damages related
to the FLP properties because Harry Keeven's petition
sought relief sounding in breach of trust only and did not
seek relief on the basis that Matthew Keeven owed ...