Brown-Thill v. Brown-Thill
| Decision Date | 09 January 2018 |
| Docket Number | WD 79914 |
| Citation | 543 S.W.3d 620 |
| Parties | Susan L. BROWN (a/k/a) Susan Brown-Thill, Trustee of the Eugene D. Brown Trusts Created by Trust Agreement Dated February 27, 1989, and James H. Cooper, Esq., Trustee of the Saurine L. Brown Trust, Created by Trust Agreement Dated November 4, 1999, Respondents, v. Susan BROWN-THILL, Respondent, Richard L. Brown, Appellant, And His Minor Children, Respondents. |
| Court | Missouri Court of Appeals |
Michael George, Clayton, MO, Counsel for Appellant.
Joel Laner, Kansas City, MO, Co-Counsel for Appellant.
William Hubbard, Kansas City, MO, Counsel for Respondent, Susan Brown-Thill.
Jason Zager, Kansas City, MO, Counsel for Respondents, T. Brown and E. Brown.
George Barton, Overland Park, KS, Counsel for Respondent, Susan Brown.
Catherine McLeod, Kansas City, MO, Co-counsel for Respondent, Susan Brown.
James Morrow, Kansas City, MO, Counsel for Respondents, Cooper; Friend; et al.
Peggy Wilson, Kansas City, MO, Co-Counsel for Respondents, Cooper; Friend; et al.
Before Division One: Cynthia L. Martin, P.J., James Edward Welsh, and Karen King Mitchell, JJ.
Richard L. Brown appeals the circuit court’s judgment in a probate proceeding commenced by Susan Brown-Thill, in which she sought, inter alia , approval of the "Final Distribution of the Brown Family Estate and the Trustees' Final Accounting." We affirm.
Brown and Brown-Thill, brother and sister, are the beneficiaries of Trusts established by their parents, Eugene D. Brown and Saurine L. Brown ("Grantors").1 The Trusts, which we refer to as the "EDB Trust" and the "SLB Trust," were "mirror trusts" with essentially identical provisions. They were established in 1989 and 1999, respectively, and were created to allow the Grantors' Estate to pass at their deaths to residuary trusts set up for their children.2 On January 3, 2007, the Grantors executed Restatements of their Trust Agreements. Those documents were drafted by James Cooper, who had been the Brown's estate attorney since 2006.
Eugene was the sole trustee of the EDB Trust until he suffered a disabling fall in 2007, after which Saurine began serving as sole Trustee of his Trust. Following Eugene’s death in May 2008, Saurine appointed Vernon Lotman (her brother) and Cooper to serve as her co-trustees on the EDB Trust. Saurine was sole trustee of the SLB Trust until July 2007, when she appointed Lotman as the sole Trustee. In April 2008, Lotman appointed Cooper as a co-trustee of the SLB Trust. After Saurine died in March 2009, Lotman and Cooper continued to serve as co-trustees of her Trust. Upon Lotman’s death in 2011, Cooper became the sole trustee of the SLB Trust.
When Saurine died, Brown and Brown-Thill became co-trustees of the EDB Trust charged with distributing the Trust into their own separate residuary trusts. The two siblings disagreed about various aspects of handling the Trust and eventually submitted their disputes to an arbitrator. In 2010, Brown and Brown-Thill entered into a binding Arbitration Agreement which was intended to resolve their disputes over the EDB Trust. The disputes nevertheless continued, and Brown eventually resigned as co-trustee of the EDB Trust in December 2011. Brown-Thill then became the sole trustee of the EDB Trust.
In December 2011, Brown filed a seven-count Petition against Cooper and his associates in the Jackson County Circuit Court ("the Civil Case"). In his first amended petition, Brown alleged, inter alia , breaches of fiduciary duties and legal malpractice.3 The case was initially assigned to the Civil Division but was later transferred to the Probate Division.
Two years later, in December 2013, Brown-Thill and Cooper, as sole Trustees of the EDB and SLB Trusts, respectively, filed a petition in the Probate Division of the Jackson County Circuit Court ("the Probate Case"). They sought: (1) a declaration approving their proposed final distribution plans for both Trusts; (2) a declaration approving the final accountings for the Trusts; (3) an offset against Brown's share of the Estate for attorneys' fees, expenses, and costs incurred by the Trusts in defending lawsuits filed by him;4 and (4) an injunction enjoining Brown from bringing "further vexatious litigation" regarding the Brown Family Estate.
Along with his Answer, Brown filed a Counterclaim seeking: (Count I) damages for breach of fiduciary duty against Cooper, as trustee of the SLB Trust, and against Brown-Thill, as trustee of the EDB Trust; (Count II) damages for legal malpractice against Cooper and his law partner, Donald Friend II, individually, and their law firms; (Count III) damages for breach of investment advisor fiduciary duties against Cooper and Friend, individually, and Sentinel Wealth Advisors, LLC; (Count IV) an "immediate and equal division, distribution and termination" of the EDB Trust; and (Count VI) an injunction to prevent Brown-Thill and Cooper from paying additional fees from the Trusts and disgorgement of fees previously paid. (There is no Count V.)
The Probate Case was assigned to Judge Kathleen Forsyth. At a case management conference on May 12, 2014, the judge set the first hearing for September 26, 2014. On May 14th, she granted Brown’s motion to consolidate the Probate Case and the Civil Case (which had earlier been transferred to the Probate Division), as "both involve common questions of law and fact concerning the division and distribution, and alleged misadministration of [the SLB] Trust." The court later rescheduled the initial hearing date in the Probate Case to October 31, 2014.
When the bench trial commenced on October 31st, the probate court confirmed that, in addition to the distribution issues, it would hear evidence regarding alleged breaches of fiduciary duty. Thereafter, testimony was heard and evidence was presented on twenty-four non-consecutive days over the course of more than a year. At the conclusion of the trial on December 11, 2015, after eighteen witnesses and hundreds of exhibits, the court ordered the parties to submit proposed findings and conclusions. The court thereafter ordered Cooper and Brown-Thill each to provide a final accounting for the period of their trusteeships. The Trustees timely submitted their accountings with the information requested by the court.
On July 15, 2016, the court entered Judgment in the Probate Case, ordering a final distribution of the assets of the EDB and SLB Trusts and approving the Trustees' final accountings. The court denied the Trustees' request to enjoin Brown from bringing any additional lawsuits against the Estate. The court granted the Trustees' request for a setoff against Brown’s share of the assets of the Trusts for the fees and expenses the Trusts had incurred in the Probate Case. The court also ordered an offset against Brown's share for damages he caused by interfering in a sale of property owned in part by an entity of the Trusts (Normand LP). The court further ordered that Brown be removed as trustee of the residuary trust for himself and his minor children (which would be funded by the distribution plan). To minimize the impact of the offsets on the children, the court ordered Brown's residuary trust divided into sub-trusts for Brown and for his children and directed the guardian ad litem to select an independent trustee for both. The court denied Brown's counterclaims against Cooper and Brown-Thill for breach of fiduciary duty and his counterclaim to enjoin the payment of Trustee fees.5
In reviewing a court-tried case, we will affirm the 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." Pearson v. Koster , 367 S.W.3d 36, 43 (Mo. banc 2012). We review questions of law de novo. Id. We defer to the trial court’s judgment on questions of fact, as it "is in a better position not only to judge the credibility of the witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record." Id. at 44. In reviewing mixed questions of law and fact, we defer to the court’s factual findings but review de novo the application of the law to the facts. Id.
Brown raises fourteen points on appeal. We address some points out of order where they are closely related to other non-contiguous points. In Point I , Brown contends that the probate court erred in "ordering a trial without notice, because due process required [that he] be given sufficient notice and reasonable opportunity to prepare for trial on the merits, in that the court failed to provide adequate notice the partial distribution hearing [on October 31, 2014] was going to be a trial." He claims that he was prejudiced because he had "to try his claims without the ordered discovery, the privileged documents, and the Trustees' final accounting, which precluded [him] from demonstrating Trustees' partiality, disloyalty, and breaches of their fiduciary duties."6
In plain English, Brown claims that he was denied his constitutional right to due process because he was not notified that the upcoming hearing was going to be a trial on the merits.7 When an appellant raises a claim of constitutional error, he must demonstrate, inter alia , that he raised the constitutional issue at the first available opportunity and preserved the claim throughout the trial for appellate review. State v. Gannaway , 497 S.W.3d 819, 822-23 (Mo. App. 2016). Here, Brown first complained of an alleged lack of notice on April 29, 2015, which was the tenth day of trial and approximately six months after the trial began. Thus, he clearly failed to raise his constitutional claim at the first available opportunity. That failure is sufficient for this Court to find that Brown did not properly...
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