Court of Appeals of Missouri, Eastern District, Second Division
KEVIN J. BECKERLE AS TRUSTEE OF THE DOLORA A. BECKERLE LIVING TRUST DATED JUNE 10, 1999, et, al., Appellant,
WHITMOOR REALTY, LLC, Respondent.
from the Circuit Court of the County of St. Charles
1411-CC00218 Honorable Ted C. House
P. PAGE, JUDGE
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.
September 1, 2006, Dolora Beckerle ("Trustee")
executed a promissory note ("Note") to Frontenac
Bank in her capacity as trustee,  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.
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.
Trustee's husband of almost thirty-four years, who was
designated as co-trustee in the trust instrument,
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.
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.
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.
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). 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.
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.
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,