Meyer v. Carson & Coil

• Decision Date: 15 December 2020
• Docket Number: WD 83488
• Citation: 614 S.W.3d 618
• Parties: Dustin MEYER, Appellant, v. CARSON AND COIL and Harold Walther, Respondents.
• Court: Missouri Court of Appeals

614 S.W.3d 618

Dustin MEYER, Appellant,

v.CARSON AND COIL and Harold Walther, Respondents.

WD 83488

Missouri Court of Appeals, Western District.

Opinion filed: December 15, 2020

Zaina Afrassiab, for Appellant.

Jill R. Jackson, Columbia, for RespondentHarold Walther.

Ann E. Buckley, Saint Louis, for RespondentCarson and Coil.

Division Three: Edward R. Ardini, Jr., Presiding Judge, Alok Ahuja, Judge and Gary D. Witt, Judge

EDWARD R. ARDINI, JR., JUDGE

Dustin Meyer appeals the judgment of the Circuit Court of Cooper County dismissing his claims of legal malpractice concerning the preparation of the Last Will and Testament of his late grandmother, Norma Jean Meyer, and the administration of her estate.As relevant to this appeal, Dustin¹ asserted one claim against the law firm Carson & Coil, P.C. relating to the drafting of Norma's Last Will and Testament and one claim against attorney Harold Walther regarding his legal representation during the administration of her estate.The trial court dismissed the claim against Carson & Coil finding that Dustin had no "cause of action in his individual capacity" and lacked standing, and dismissed the claim against Walther on the ground that Dustin failed to allege facts demonstrating Walther "owed a duty to [Dustin] individually."Dustin appeals.Finding no error, we affirm.

Factual and Procedural Background²

In 2001, Norma met Tommy Richardson at a bar in Jefferson City, Missouri.At that time, Norma was married with three adult children: Lisa Brinkley, Steven Meyer, and Jeffrey Meyer.AppellantDustin Meyer is the sole child of Jeffrey.In 2003, Norma and her husband divorced, and Norma purchased approximately 300 acres of farmland in Cooper County, Missouri, upon which she intended to operate a ranch with Richardson.She built a home on the Cooper County property and moved there with Richardson.

In 2005, Norma executed the Norma J. Meyer Revocable Living Trust (the "Trust").The Trust named Norma as trustee and provided that she would be succeeded as trustee by Richardson upon her death.The Trust also provided that upon Norma's death, Richardson would receive the ranch property and daughter Lisa would receive the personal property placed in the Trust.Norma transferred the ranch, certain personal property, and title to her motor vehicles to the Trust.The Trust was recorded in March 2006.In May 2006, Norma ended her relationship with Richardson and they had no further contact.

In 2009, Norma contacted Michael Riley, an attorney employed by Carson & Coil, to provide estate planning services.Riley prepared a Last Will and Testament (the "Will") for Norma, which provided that Norma's property would be divided between Lisa and Jeffrey, and if they were deceased, to their children.Specifically, the Will left to Lisa, or if she were deceased, to her children in equal shares, 30% of the remainder of the estate after payment of all estate administration expenses and taxes.The Will left to Jeffrey, or if he were deceased, to his children in equal shares, 70% of the remainder of the estate after payment of all estate administration expenses and taxes.Norma intentionally made no provision in the Will for her third child, Steven.Norma executed the Will in September 2009.

In creating the Will for Norma, Riley did not prepare or have Norma sign a revocation of the Trust, did not investigate whether any property or deed for any property existed in which Norma had an interest, did not inquire of Norma or investigate whether she had previously executed any other estate planning documents, and did not advise Norma that any assets she had previously transferred to the Trust would not pass under the Will to the beneficiaries of the Will.The Will did not mention or refer to the Trust or any property held by the Trust.

Norma died in August 2011.At the time of her death, the value of her assets, including those in the Trust, exceeded $1,300,000.

In January 2012, the probate division of the Circuit Court of Cooper County(the "probate division") issued co-letters of administration to Lisa and Steven for the Estate of Norma Jean Meyer in CaseNo. 11CO-PR00094(the "probate case").³In the following months, the probate division revoked the co-letters of administration and issued letters testamentary to Jeffrey, naming him personal representative of Norma's estate.⁴Attorney Walther entered his appearance for the personal representative.⁵

In October 2012, Jeffrey, as personal representative, filed a petition for discovery of assets against Richardson, asking the court to enter a judgment finding that the Trust had been revoked and all assets conveyed to the Trust be deemed assets of Norma's estate.Jeffrey died in March 2013.In April 2013, successor letters were granted to Dustin and he was named personal representative of Norma's estate.

In June and July 2014, the petition for discovery of assets was tried to the court.The probate division found that Norma did not revoke the Trust by executing the Will in 2009 or by any other means and concluded that the Trust assets were not part of Norma's estate.Dustin, as personal representative, appealed, and in September 2015this Court issued its opinion affirming the judgment of the probate division.SeeEstate of Meyer v. Presley , 469 S.W.3d 857, 866(Mo. App. W.D.2015).

After this Court issued its opinion, Richardson went to the ranch and discovered that property held by the Trust had disappeared or been destroyed, and the home on the ranch "had been gutted, including appliances and fixtures removed."In August 2016, Richardson filed suit against Dustin individually and as personal representative of the estate, alleging claims of waste, conversion, and trespass, Case No. 16CO-CC00032(the "waste and conversion case").⁶Walther entered his appearance on behalf of Dustin as personal representative and filed a motion to dismiss Richardson's claims against the personal representative.Walther did not enter his appearance on behalf of Dustin individually, and no answer or motion to dismiss was filed on behalf of Dustin individually.

Richardson moved for a default judgment against Dustin individually.On November 14, 2016, the court held a hearing on the motion to dismiss and motion for default judgment, at which Dustin and Walther appeared.The following day, the court entered a judgment denying the motion to dismiss and finding Dustin, individually, was in default.The court entered a default judgment against Dustin, in his individual capacity, in the amount of $90,320.

In the probate case, in January 2017, Walther filed a motion to withdraw as counsel for the personal representative.Later that month the probate division found that Dustin had not filed a settlement as ordered, revoked his letters testamentary, and ordered that he file a final settlement showing he transferred all assets of the estate to the new personal representative.On March 31, 2017, the probate division granted Walther's motion to withdraw.Also on that date, the probate division held a hearing at which the new personal representative questioned Dustin regarding the location of estate property.The probate division found that Dustin had "lost all property shown on Appendix B to the Third Amended Inventory" and entered judgment against Dustin and in favor of the estate in the amount of $100,151.

In November 2018, Dustin initiated this legal malpractice action by filing a two-count petition against attorneys Riley and Walther.Walther moved to dismiss for failure to state a claim upon which relief could be granted and for improper joinder of claims.Thereafter, Dustin requested and was granted leave to file an amended petition.Dustin named Carson & Coil as a defendant in the amended petition and asserted the law firm was vicariously liable for Riley's actions, but otherwise the amended petition was identical to the original petition.

In Count I of the amended petition Dustin alleged that:

62.Defendant Riley breached his duty to Norma Jean Meyer and her heirs and committed legal malpractice in the following manner:

a. Failed to prepare or have Norma Jean Meyer sign a Revocation of the previously executed Trust;

b. Failed to do an investigation of the existence of any property in which Norma Jean Meyer had an interest or investigation of the deed for any property in which Norma Jean Meyer had an interest;

c. Failed to inquire of Norma Jean Meyer or do an investigation to determine whether Norma Jean Meyer had previously executed any other estate planning documents;

d. Failed to advise Norma Jean Meyer that any assets that had been previously transferred to the Trust would not pass under the Will to the beneficiaries of the Will.

63.As a direct result of the malpractice of Michael Riley, the property held by the trust was not included as part of the Estate and therefore Dustin Meyer, as a beneficiary of the Will, sustained damages in the amount in excess of $900,000.00 for the loss of his share of the value of the property contained in the Trust.

In Count II of the amended petition Dustin alleged that:

67.During his handling of the estate, defendantHarold Walther breached his duty to the Estate and committed legal malpractice in the following manner:

a. Failed to pay taxes on property of the estate;^[7] b. Failed to ensure that that [sic] the real and personal property of the Trust and Estate were preserved;

c. Requested appointment of Dustin Meyer as the personal representative when it was known to defendant that Dustin Meyer was not competent to serve as personal representative;

d. Failed to advise Dustin Meyer of the consequences of his failure to be represented at the March 3[1], 2017 hearing;

e. Failed to request the hearing of March 3[1], 2017 be continued so that Dustin Meyer could retain counsel.

68.As a direct result of the malpractice of Harold Walther, the property held by the trust was allowed to [sic] converted and depreciated, the Trust was caused to incur taxes, and Dustin

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