Brown v. Brown

• Decision Date: 26 April 2022
• Docket Number: WD 84312
• Citation: 645 S.W.3d 75
• Parties: Richard BROWN, et al., Appellants, v. Susan L. BROWN, et al., Respondents.
• Court: Missouri Court of Appeals

645 S.W.3d 75

Richard BROWN, et al., Appellants,

v.Susan L. BROWN, et al., Respondents.

WD 84312

Missouri Court of Appeals, Western District.

OPINION FILED: April 26, 2022

Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2022

Richard Brown, Appellant Pro Se.

James Christian Morrow, Kansas City, Missouri, for respondent.

Before Division Three: Gary D. Witt, Presiding Judge, Anthony Rex Gabbert, Judge and W. Douglas Thomson, Judge

Gary D. Witt, Judge

This appeal arises from extensive litigation between the parties regarding certain trusts and trust assets over a period of many years including multiple trips to this Court. Richard Brown ("Brown"), appearing pro se , appeals the judgment of the Circuit Court of Jackson County ("trial court") granting Respondent James Cooper's ("Cooper") motion to dismiss Brown's Petition to Enforce Arbitration. Brown's first appellate brief was struck for multiple, specific violations of the briefing requirements of Rule 84.04.¹ Thereafter, Brown filed an amended appellate brief. Cooper filed a Motion to Dismiss Appellant Richard L. Brown's Amended Appellant's Brief, wherein he also requested attorney's fees for responding to Brown's appeal. Because Brown's amended appellate brief contains significant deficiencies under our rules, we strike Brown's brief without reaching the merits of his arguments, dismiss the appeal, and we remand to the trial court for a determination of an appropriate award of attorney's fees to Cooper for the fees pertaining to this appeal. It is clear that the underlying petition and this appeal are nothing more than Brown's futile attempts to relitigate issues that he has unsuccessfully raised in multiple prior cases and appeals.

Factual and Procedural Background

Because Brown appears before this Court for the fourth time related to the same dispute,² we borrow the factual background, in significant part, from Brown v. Brown-Thill , 543 S.W.3d 620 (Mo. App. W.D. 2018), without further attribution.³ Brown and Susan Brown-Thill ("Brown-Thill"), brother and sister, were the beneficiaries of Trusts established by their parents, Eugene D. Brown ("Eugene")⁴ and Saurine L. Brown ("Saurine")(collectively "Grantors"). 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 and grandchildren. On January 3, 2007, the Grantors executed Restatements of their Trust Agreements. Those documents were drafted by Cooper, who had been the Grantor's estate planning attorney since 2006. The trusts are the general partners, either directly or through membership in a limited liability company, Brown Bear, for three limited partnerships, known as FLP I, FLP II, and Normand LP. The three partnerships manage the trusts’ assets, including stocks, municipal bonds, and real estate.

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 this 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 this Trust. Upon Lotman's death in 2011, Cooper became the sole trustee of the SLB Trust.

Two years later, in December 2013, after multiple rounds of arbitration proceedings initiated by Brown pertaining to the partnerships’ assets, 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 and arbitration proceedings filed by him; 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 firm; (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 Trustee's fees previously paid.

The probate division of the Jackson County Circuit Court ("probate court") held a bench trial on the petition and counterclaim. 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, after eighteen witnesses and hundreds of exhibits, the probate court took the matter under advisement. The probate 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 probate court.

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 resulting from the litigation initiated by Brown. The court also ordered an offset against Brown's share of the estate for damages he caused by interfering in a sale of property owned in part by 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 be divided into sub-trusts for Brown and separately for his children and directed the guardian ad litem to select an independent trustee for each. 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. This Court, in Brown v. Brown-Thill , affirmed the probate court's Judgment in all respects. 543 S.W.3d at 639. We also noted that "a shocking amount of time, money, and personal anguish has been expended as a result of the ‘scorched earth’ approach the parties have taken in this litigation. We are of the opinion that a final conclusion will be a blessing to all concerned." Id.

After this Court affirmed the judgment of the probate court, the parties began the complicated process of liquidating the trusts’ assets in accordance with the approved final distribution plan. Brown refused to cooperate with this process and filed numerous motions to enforce the probate court's judgment immediately. The court dismissed his causes of action because the trustees were in the process of winding up the trusts’ assets, and Brown's behavior in refusing to cooperate delayed the process significantly. This Court again affirmed the judgment of the lower court dismissing Brown's latest lawsuits. See Brown v. Brown , 611 S.W.3d 347 (Mo. App. W.D. 2020) (per curiam).

In 2019, the trustees filed a joint motion in the probate case to ratify the proposed partnership resolution, with Brown's share of the partial distribution of Normand LP, totaling $795,498.32, to be held in trust by the probate court due to Brown's refusal to agree to the amount. The court approved the joint resolution, awarded attorney's fees and costs to the trustees, and enjoined Brown "from pursing further vexations litigation against the Trustee of the Eugene D. Brown Trust, the Trustee of the Saurine L. Brown Trust, or any other individual or entity in connection with the disposition, accounting, or handling of the assets held by the either [sic] the Eugene D. Brown Trust, the Saurine L. Brown Trust, and for such other relief as the Court deems just and equitable." Brown appealed the court's judgment, which was dismissed by this Court as untimely.

The trustees began distributing the trusts’ assets in accordance with the probate court's order. Brown, however, filed a Petition to Enforce Mandatory Arbitration of Partnership Disputes ("First Petition to Enforce Arbitration") on May 22, 2019 against Brown-Thill and Cooper, in the Civil Division of the Jackson County Circuit Court. The case was transferred to the probate division and Brown-Thill and Cooper filed a motion to dismiss, which was sustained by the probate court.

On February 21, 2021, Brown filed a Petition to Enforce Arbitration ("Second Petition to Enforce Arbitration") against Cooper, which is the underlying petition in this case and makes the same claims as the First Petition to Enforce Arbitration. The trial court dismissed Brown's petition, found Brown in contempt of the vexatious litigation injunction, and sanctioned Brown by awarding Cooper his costs and attorney's fees expended in response to Brown's petition. After Brown's petition was dismissed by the probate court, Brown filed a similar Petition to Enforce an...