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Beckerle v. Whitmoor Realty, LLC

Court of Appeals of Missouri, Eastern District, Second Division

September 24, 2019

KEVIN J. BECKERLE AS TRUSTEE OF THE DOLORA A. BECKERLE LIVING TRUST DATED JUNE 10, 1999, et, al., Appellant,
v.
WHITMOOR REALTY, LLC, Respondent.

          Appeal from the Circuit Court of the County of St. Charles 1411-CC00218 Honorable Ted C. House

          OPINION

          LISA P. PAGE, JUDGE

         Kevin J. Beckerle ("Appellant") appeals the judgment of the trial court in favor of Respondent Whitmoor Realty, LLC ("Whitmoor") for breach of a promissory note executed by the Dolora A. Beckerle Living Trust, dated June 10, 1999 ("Trust"). We affirm.

         BACKGROUND

         On September 1, 2006, Dolora Beckerle ("Trustee") executed a promissory note ("Note") to Frontenac Bank in her capacity as trustee, [1] which was assigned to Whitmoor on September 25, 2009. Whitmoor's counsel sent Trustee a letter via certified mail on September 29, 2009, informing her the Trust's obligations under the Note had matured and the entire unpaid balance was due. Thereafter, Whitmoor foreclosed on the property. It was sold on November 4, 2009, and the proceeds were applied to the amount due. Following the sale, Whitmoor's counsel informed Trustee in writing that after foreclosure of the real estate, the remaining balance of $603, 604.73 plus interest was due. The letter further stated Whitmoor had authorized counsel to file suit to collect the outstanding balance.

         In November 2010, Whitmoor filed a two-count petition against Trustee and against the Trust for breach of the promissory note and against her individually for breach of the guarantee. While the action was pending, Trustee died May 24, 2012. A suggestion of death was filed, and the cause was ultimately dismissed without prejudice.

         Appellant, Trustee's husband of almost thirty-four years, who was designated as co-trustee in the trust instrument, [2] became the successor sole trustee. Thereafter, in his capacity as trustee, Appellant published notices to creditors of the "Estate of DOLORA A. BECKERLE a/k/a DOLORA ANN BECKERLE, " which stated "[a]ll creditors of the decedent are notified to present their claims to the undersigned within six (6) months from the date of the first publication of this notice or be forever barred." The notices did not reference the Trust.

         On March 7, 2014, Whitmoor filed its petition for suit on the Note against the Trust (Count I) and suit on guaranty against Trustee's probate estate, as she was the named guarantor of the Note (Count II). On May 9, 2014, Appellant filed a Motion to Dismiss. The court heard Appellant's Motion to Dismiss and entered an order denying the motion as to Count I on Whitmoor's claim against the Trust and granting the motion as to Count II on the claim against Trustee's estate for her personal guarantee.

         On August 30, 2017, the case was tried by the court. After hearing the evidence, the trial court entered its order and judgment in favor of Whitmoor in the amount of $675, 257.41. This appeal follows.

         DISCUSSION

         Appellant raises three points on appeal. In his first point on appeal, Appellant contends the trial court erred entering judgment in favor of Whitmoor because any claims against the Trust were time barred by Section 456.5-505.5 RSMo (2016)[3]. In his second point on appeal, Appellant contends the trial court erred excluding evidence regarding the statutory notice posted by Appellant because such evidence was relevant. In his third point on appeal, Appellant claims the trial court erred admitting Whitmoor's Exhibit 27 because it lacked proper foundation and was hearsay.

         In his first point on appeal, Appellant argues the trial court erred entering judgment in favor of Whitmoor because Whitmoor's claims were barred pursuant to Section 456.5-505.5. Specifically, Appellant claims that Whitmoor failed to present its claims to the Trustee within the time frame prescribed in Section 456.5-505.5. In response, Whitmoor argues Section 456.5-505.5 does not apply because Whitmoor, as a holder of the Note executed by the Trust, is a creditor of the Trust, not the settlor.

         Standard of Review

         On review of a court-tried case, our court "will affirm the circuit court's judgment 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." Ivie v. Smith, 439 S.W.3d 189, 198–99 ...


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