Brown v. Brown, WD 63547.

Citation152 S.W.3d 911
Decision Date18 January 2005
Docket NumberNo. WD 63547.,WD 63547.
PartiesJohn C. BROWN and Pam K. Heitman, Respondents, v. Joseph H. BROWN, Appellant.
CourtCourt of Appeal of Missouri (US)

Patrick M. Cuezze, Kansas City, MO, for appellant.

L. Clay Barton, Oak Grove, MO, for respondents.



Appellant Joseph H. Brown ("Joseph" or "Appellant") appeals a judgment of the Circuit Court of Lafayette County, Missouri, imposing a constructive trust on certain Lafayette County real estate in favor of Respondents, John C. Brown and Pamela K. Heitman ("John" and "Pam" or "Respondents").1 Appellant raises three points of trial court error. In his first two points, he contends that the trial court erred when it imposed the trust because a constructive trust is only proper if there has been a showing of actual or constructive fraud, and because a showing of unjust enrichment alone is legally insufficient to support the imposition of such a trust. In his third point, he argues that the trial court erred in imposing a constructive trust since Respondents failed to meet their burden of proof at trial to establish facts giving rise to such a trust by clear, cogent, and convincing evidence. We vacate the trial court's judgment but remand for entry of a new judgment in favor of Respondents.

As in other court-tried matters, this court will affirm the judgment of the trial court "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Fix v. Fix, 847 S.W.2d 762, 765 (Mo. banc 1993). "When the trial court has received conflicting evidence, appellate courts should review the facts in the light most favorable to the trial court's order." In the Interest of M.E.W., 729 S.W.2d 194, 196 (Mo. banc 1987). Appellate courts also defer to the trial court's credibility determinations "because it is in a better position to not only judge the credibility of witnesses directly, but also their sincerity and character as well as other trial intangibles which may not be completely revealed by the record." Tichenor v. Vore, 953 S.W.2d 171, 174 (Mo.App. S.D.1997); Rule 84.13(d)(2). However, "[q]uestions of law are matters reserved for de novo review by the appellate court, and we therefore give no deference to the trial court's judgment in such matters." H & B Masonry Co. v. Davis, 32 S.W.3d 120, 124 (Mo.App. E.D.2000).

The subject of the lawsuit is approximately twenty acres of rural real estate, on which a modular home, a cabin (improvements to which had been made by John and Pam), a nine-acre lake, and a single-wide trailer are present. The land, which is located about five miles west of Odessa, Missouri, was originally purchased in February 1966 by Catherine and her husband, Edward Brown. There were four children of the marriage: John, Pam, Joseph, and Carolyn. When Edward Brown died on June 24, 1988, his interest in the real estate devolved to Catherine, who became the sole record title owner of the property. By warranty deed dated June 12, 1989, Catherine granted the land to Catherine and her son John as joint tenants with right of survivorship. This deed was recorded on June 14, 1989, in Book 705, Pages 312-313. On October 16, 1997, Catherine executed another warranty deed transferring title to her remaining interest in the land to Catherine and her daughter Pam as joint tenants with right of survivorship. This deed was recorded on February 12, 1998.

John testified that some time in 1999, he and his mother decided that Pam should be properly added as a third joint tenant with right of survivorship. On August 23, 1999, after John had made an appointment for the three of them to confer with a lawyer, they visited the Independence, Missouri, law office of Joyce B. Kerber, an attorney, bringing with them a copy of the 1989 and 1997 warranty deeds. Kerber testified that the three asked her to prepare appropriate instruments that would leave the property titled in the names of Catherine, John, and Pam as joint tenants with right of survivorship, and there was similar testimony from John and Pam. According to Kerber, the idea was to "undo the previous warranty deeds and get it all back in Catherine's name so she could make a deed placing both John and Pam on [the deed] as joint tenants with right of survivorship with her." Since Catherine was elderly (78 years old) and in failing health, prior to preparing any documents Kerber met with Catherine out of the presence of John and Pam and questioned her closely to confirm her wishes and to ensure that she was competent and not being subjected to undue influence. Neither John nor Pam spoke to Kerber while Catherine was not also present.

After the meeting of August 23, 1999, Kerber prepared three quitclaim deeds. The first was a quitclaim deed conveying John's interest in the land to Catherine. The second transferred Pam's interest in the land to Catherine, and the third deeded Catherine's interest in the land to Catherine, John, and Pam as joint tenants with right of survivorship. Kerber testified that the first two quitclaim deeds were prepared with the intention of clearing up the prior and conflicting warranty deeds executed by Catherine so the property could then properly be conveyed, via the third quitclaim deed, to Catherine, John, and Pam as joint tenants with right of survivorship. Kerber also prepared a will and a durable power of attorney for Catherine.

On September 30, 1999, Catherine and Pam returned to Kerber's office, where Pam executed the second quitclaim deed and Catherine executed the third quitclaim deed, as well as a will. John was not able to visit Kerber's office that day, and subsequently executed the first quitclaim deed on November 1, 1999. After the three quitclaim deeds had been signed, Kerber forwarded them to the office of the Lafayette County Recorder of Deeds for recordation. Kerber's intention was that the third quitclaim deed be recorded last, so that the property would ultimately be titled in the names of Catherine, John, and Pam as joint tenants with right of survivorship, just as they had requested during their visit on August 23, 1999. Kerber further testified that although it was her usual practice to do so, she did not recall whether she gave instructions to the recorder as to the intended order of recordation.

As misfortune would have it, on November 4, 1999, the Recorder of Deeds recorded the deeds in the reverse order of that intended by Kerber, Catherine, John, and Pam. That is to say, the third quitclaim deed (from Catherine to the three parties jointly) was recorded first, followed by the other two quitclaim deeds (from John to Catherine and from Pam to Catherine) very shortly thereafter. The third quitclaim deed was recorded in Book 867 at Page 1140, while the other two quitclaim deeds were recorded in Book 867 at Pages 1141 and 1142. Unbeknownst to John and Pam, the result of the order of the filing of the deeds was that Catherine held the property in fee simple absolute, leaving them no interest in the property whatsoever.

On April 3, 2002, Catherine granted a durable power of attorney to Joseph and Carolyn. The same day, Catherine executed a beneficiary deed purporting to convey the property, upon her death, to each of her four children (Joseph, Carolyn, John, and Pam) as joint tenants with right of survivorship. This deed was recorded on April 8, 2002, in Book 927 at Pages 872-873. Considered in conjunction with the effect of the prior quitclaim deeds (including the order in which they were recorded), this would have left John and Pam with one-fourth interests in the property on Catherine's death, rather than one-half interests (assuming, of course, they survived Catherine).

Shortly thereafter, John and Pam discovered what had happened. When Catherine subsequently refused to rectify the mistake by altering or revoking the beneficiary deed, their relationship with her deteriorated. On June 12, 2002, John and Pam filed the present action, seeking a variety of equitable relief, including the imposition of a constructive trust and the cancellation of the beneficiary deed, to rectify the mistake made by Kerber and/or the Lafayette County Recorder of Deeds.

A one-day trial took place on September 26, 2003. On October 24, 2003, the trial court issued its judgment, in which it found, "by clear, cogent, and convincing evidence," that "the agreement, intent, and purpose of all the parties in the execution of" the first, second, and third quitclaim deeds "was to ultimately place title in said real estate in Catherine Brown, John Brown and Pam K. Heitman, as joint tenants with right of survivorship." The court further found that the quitclaim deeds were recorded in the wrong sequence "through no fault of the parties" and, as a result of this mistake, Catherine "was left as sole owner of said real estate, contrary to the intention of the parties." After noting that the beneficiary deed of April 3, 2002 "would result in Plaintiffs having less ownership than as set forth" in the third quitclaim deed dated September 30, 1999, the trial court concluded that "equity requires that a constructive trust be imposed to place the parties' ownership as intended by the [third] Quit Claim Deed and to avoid Plaintiffs being defrauded of their interest in the real estate and Defendant being unjustly enriched[.]" The court then revested title to the property in Catherine, John, and Pam as joint tenants with right of survivorship and ordered Catherine to execute a deed consistent therewith. This timely appeal followed.

Appellant advances three points relied on, which we will address out of their original order. Before we do, though, we offer the following observations regarding...

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