Boswell v. O'Neil

Decision Date02 March 2022
Docket NumberSD 37077
Parties Johnathan BOSWELL, Appellant, v. Thomas J. O'NEIL, Dwight Bethurem, Amie Boswell Dewane, James B. Boswell, Joseph A. Boswell, and Independent Stave Company, LLC, John Doe(s), and Jane Doe(s), Respondents.
CourtMissouri Court of Appeals

ATTORNEY FOR APPELLANTTimothy J. Lemen, St. Louis, MO.

ATTORNEYS FOR RESPONDENTSBen K. Upp, Springfield, MO, James F. Freeman III, Kansas City, MO.

MARY W. SHEFFIELD, P.J.

Johnathan Boswell ("Appellant") appeals the judgment in favor of trustees, Thomas J. O'Neil ("O'Neil") and Dwight Bethurem ("Bethurem") (collectively, "trustees"), Amie Boswell Dewane, James B. Boswell, Joseph A. Boswell (collectively, "siblings"), Independent Stave Company, LLC ("ISCO"), and John and Jane Does (collectively, "Respondents") in a trust action involving the Lois K. Boswell Trust dated December 30, 1983 ("the Trust"). The trial court granted summary judgment in favor of Respondents on two grounds: (1) section 456.10-1005's five-year statute of limitations, barring Appellant's breach of trust claim; and (2) the claim preclusion doctrine, barring all other claims.1 Appellant raises five points on appeal. Finding no merit in Appellant's points, we affirm the judgment.

Background

In 1983, Lois K. Boswell ("Lois") executed the Trust for the benefit of her adult son and his children, including Appellant and siblings.2 The Trust provided Appellant and siblings with one share apiece to be administered as separate trust estates for each child with full distribution of the principal to be made on his or her 29th birthday. Pursuant to the terms of the Trust, Appellant's interest in the Trust terminated no later than his 29th birthday on June 19, 2012.

Lois died in 2001. Following Lois's death, Appellant was involved in two civil cases involving members of the Boswell family and ISCO Holding Company in Florida, which settled in 2006 (the "2006 Severance and Settlement Agreement").3

As a result of that settlement, Appellant was paid in excess of $8,680,898.20.

In December 2019, Appellant sued siblings, trustees, and ISCO in Missouri. His petition asserted claims for a breach of trust agreement against all Respondents, tortious interference with an inheritance expectancy against all Respondents, unjust enrichment against siblings, ISCO, and John and Jane Doe, and money had and received against siblings, ISCO, and John and Jane Doe. Appellant alleged the trustees withheld or concealed information related to his beneficial interest in the Trust and that Trust assets were redistributed to siblings and ISCO.4 Respondents filed their answer and raised the affirmative defenses of section 456.10-1005 ’s statute of limitations, claim preclusion, and accord and satisfaction.

Respondents moved for summary judgment on all claims in Appellant's petition.5 In the motion for summary judgment, Respondents argued that they were entitled to judgment as a matter of law because:

1. [Appellant] executed settlement agreements dated as of August 19, 2006 whereby he released all claims which he now attempts to remake,
2. The R.S.Mo. § 456.10-1005 statute of limitations bars [Appellant's] claims, in that more than five years have elapsed since the termination of his interest in the Trust and/or the termination of the trust, Ellison v. Fry, 437 S.W.3d 762, 765 (Mo. 2014), and/or
3. The claim preclusion doctrine bars the claims, in that the claims made by [Appellant] are or should have been made in prior litigation. SeeYounghaus v. Lakey , 559 S.W.2d 30 (Mo. Ct. App. 1977).

Respondents’ joint summary judgment motion was accompanied by a 14-paragraph statement of uncontroverted material facts. Appellant filed the following response to Respondents’ statement of uncontroverted material facts:

1. [Appellant] executed a Limited General Release between [Appellant], et al., and ISCO Holding Company, et al., dated as of August 19, 2006. [Ex. (a)]. Para. 5(a), Affidavit of David Waugh, Ex. 1.
RESPONSE: Admit.
2. [Appellant] executed a Severance and Settlement Agreement [Appellant], et al., and ISCO Holding Company, et al., dated as of August 19, 2006. [Ex. (b)]. Para. 5(b), Aff. of David Waugh, Ex. 1.
RESPONSE: Admit.
3. A Stipulation and Final Order of Dismissal with Prejudice of the action Tiffany S. Boswell, et al., v. John J. Boswell, et al., 15th Judicial Circuit, Palm Beach County, Florida, Case No. 50 2003 CA-011883 AN, was previously filed in that action. [Ex. (c)]. Para. 5(c), Aff. of David Waugh, Ex. 1.
RESPONSE: Admit.
4. A Stipulation of Voluntary Dismissal with Prejudice of the action Tiffany S. Boswell, et al., v. John J. Boswell, et al., 15th Judicial Circuit, Palm Beach County, Florida, Case No. 50 2003 CA-011883 AN, was previously filed in that action. [Ex. (d)]. Para. 5(d), Aff. of David Waugh, Ex. 1.
RESPONSE: Deny. RespondentsExhibit 1(d) is the same as RespondentsExhibit 1(c) and is entitled "Stipulation and Final Order of Dismissal With Prejudice" dated October 23, 2006.
5. A Stipulation of Voluntary Dismissal with Prejudice of the action Tiffany S. Boswell, et al., v. John J. Boswell, et al., 15th Judicial Circuit, Palm Beach County, Florida, Case No. 50 2003 CA-012396 AN, was previously filed in that action. [Ex. (e)]. Para. 5(e), Aff. of David Waugh, Ex. 1.
RESPONSE: Admit.
6. [Appellant] was paid in excess of $8,680,898.20 as consideration for the Limited Release, Severance and Settlement Agreement and the dismissals of the two previously filed lawsuits. See Boswell Severance and Settlement Agreement Distribution Accounting. [Ex. (f)]. Para. 5(f), Aff. of David Waugh, Ex. 1.
RESPONSE: Admit.
7. Ex. (g) is an accounting of payments made to [Appellant] directly from his sub-trust's account pursuant to the Lois K. Boswell Irrevocable Trust dated December 30, 1983, as part of an audit by BDK, LLP requested by the Trust. Para. 5(g), Aff. of David Waugh, Ex. 1.
RESPONSE: Deny and move to strike. Respondents’ citation to the record does not support the facts asserted. There is no Paragraph 5(g) within Mr. Waugh's affidavit attached as Exhibit 1 to Respondents’ motion. Moreover, Mr. Waugh's affidavit does not properly authenticate the purported accounting attached to his affidavit as Exhibit (g). Mr. Waugh does not testify: (1) that he is or was trustee of the Lois K. Boswell Irrevocable Trust dated December 30, 1983; or (2) that he is or was an employee of BDK, LLP; or (3) that the purported accounting is a business record of ISCO Holding Company or Independent Stave Company which satisfies the requirements of Mo. Rev. Stat. §§ 490.680, 490.692.
8. Ex. (g) was made based upon a review of original banking documents. Para. 6, Aff. of David Waugh, Ex. 1 and Para. 8, Affidavit. of [Bethurem], Ex. 2.
RESPONSE: Deny and move to strike. Respondents’ citation to the record does not support the fact asserted. Mr. Waugh's affidavit and [Bethurem's] affidavit lack foundation to show that the entirety of Exhibit (g) was based on a review of original banking documents, or how they would have personal knowledge of that fact. Paragraph 10 of [Bethurem's] affidavit alleges that the original banking documents that purportedly serve as the basis for Exhibit (g) were destroyed.
9. Ex. (j) are business records of Commerce Bank [Appellant] sub-trust of the Trust, reflecting payments and transfers made to or on account of [Appellant] for the February 2006 to February 2008 time period.
RESPONSE: Admit that Exhibit (j) constitutes business records of Commerce Bank for an account titled in the name of the "Boswell Family Trust FBO Johnathan Boswell dated 12-22-83, Paul Walker Trustee" ending in 3401, and that said records reflect payments and transfers to or for the benefit of [Appellant] between April 2006 and October 2006. Petitioner denies the balance of Paragraph 9. See Respondents’ Exhibit (j).
10. All of the payments on account of [Appellant] referenced in Exhibits (f), (g), and (j) were made as indicated in said exhibits either directly to [Appellant] or on [Appellant's] behalf. Para. 8, Aff. of David Waugh, Ex. 1 and Para. 9, Aff. of [Bethurem], Ex. 2.
RESPONSE: Admit that the payments identified in Exhibits (f) and (j) for the benefit of [Appellant] were made to him. Petitioner denies the balance of Paragraph 10 and moves to strike as the portion of Paragraph 8 of Mr. Waugh's affidavit regarding Exhibit (g), as well as Paragraph 9 of [Bethurem's] affidavit regarding Exhibit (g), lack foundation. See Responses to Paragraphs 7 and 8, above.
11. [Bethurem] on October 6, 2004 gave a deposition in the case of Tiffany Boswell, et al., v. John Boswell, et al., Circuit Court of the Fifteenth Judicial Circuit, Palm Beach County, Florida, Case No. 502003CA011883XXOCAJ, which is attached as Ex. (h). Paragraph 4, Aff. of [Bethurem], Ex. 2.
RESPONSE: Admit.
12. At the October 6, 2004 deposition, [Bethurem] produced a true and correct copy of the Lois K. Boswell Irrevocable Trust dated December 30, 1983 which was marked as Ex. 24 to said deposition and is attached as Ex. (i). Paras. 3 and 5, Aff. of [Bethurem], Ex. 2.
RESPONSE: Admit.
13. [Appellant] turned 29 years of age on June 19, 2012. [Appellant's] Second Amended Petition, paragraph 12.
RESPONSE: Admit.
14. Pursuant to the terms of the Trust, [Appellant's] interest under the Trust terminated no later than [Appellant's] 29th birthday on June 19, 2012. Trust at Article I, paragraph B(5). Ex. (i) at page 5.
RESPONSE: Admit.

The trial court granted Respondentsmotion for summary judgment, finding "that as a matter of law § 456.10-1005 is the appropriate statute of limitations and [Appellant's breach of trust count] is time barred." The trial court "also [found] that the claim preclusion doctrine bars all other claims made by [Appellant]." Appellant appeals from that summary judgment in five points.

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