In re Joseph H. Keeven Revocable Trust

         Appeal from the Circuit Court of St. Louis County Honorable Carolyn C. Whittington

          SHERRI B. SULLIVAN, JUDGE.

         Introduction

         Michael 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.

         Factual and Procedural Background

         Joseph 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. Keeven's death.

         On 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.

         The 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 father's death.

         In 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.

         On 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.

         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 partnership.

         Harry 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.

         Points on Appeal

         Bentz 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^[1] by failing to give the parties reasonable notice and an opportunity to be heard prior to entering said ruling.

         In his 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 Section 359.451.^[2]

         Points on Cross-Appeal

         Matthew 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 ...