Brown v. Pint
| Decision Date | 03 August 2021 |
| Docket Number | WD 84032 |
| Citation | 632 S.W.3d 453 |
| Parties | Patricia BROWN, Appellant, v. Marjorie PINT, et al., Respondents. |
| Court | Missouri Court of Appeals |
Nancy I. Potter, Michael L. Taylor, Lindsey C. Bachman, and Laurna D. Alumbaugh, St. Joseph, MO, Attorneys for Appellant.
Terry M. Evans and Miles B. Figg, Smithville, MO, Attorneys for Respondent Marjorie Pint.
Dan Smith, Rock Port, MO, Attorney for Respondents Samantha Ann Sloop, Double B Double S, LLC, and Bryan Richards as Personal Representative for the Estate of Shirley May Richards.
Before Division Two: Mark D. Pfeiffer, Presiding Judge, and Alok Ahuja and Karen King Mitchell, Judges
Patricia Brown appeals from the dismissal of her petition seeking a constructive trust against several of her family members based upon a beneficiary deed executed in 2001 (just before her father's death) that gave an interest in real estate owned by her father to her three aunts in equal shares. The circuit court dismissed Brown's petition upon motions by each of the defendants alleging that the statute of limitations had run on Brown's claims. Brown raises two points on appeal. First, she argues that the statute of limitations does not run against a constructive trust until the trust is repudiated by the trustee(s), which she claims occurred in 2019. And, second, she argues that the statute of limitations is inapplicable insofar as her claims fall within the continuing wrong or injury exception. Finding no error, we affirm.
Brown's father William C. Cook acquired a 25% share of real estate located in Atchison County, Missouri, that had been owned by his father Claude C. Cook, upon Claude's passing in 1987. Each of Claude's other three children (Marjorie Pint, Shirley Richards, and Catherine Hawk) also acquired a 25% share of Claude's real estate. William, Marjorie, Shirley, and Catherine made various conveyances of the property over the next several years, but, as of July 2001, William owned a 25% interest in the remaining real estate.
In July 2001, William had a significant stroke
, leaving him unable to speak or write. As of July 31, 2001, William remained hospitalized in Omaha, Nebraska, with doctors advising that he was unlikely to recover from his stroke. On July 31, 2001, William purportedly executed a general durable power of attorney appointing Shirley as his attorney-in-fact. Because William was in such poor health, he could not sign his name to the power-of-attorney form and, instead, marked the signature line with an "X." The form was signed by only one witness in addition to a notary public, and the form was filed with the Atchison County Recorder's office on August 3, 2001.
On August 3, 2001, using her power of attorney, Shirley executed a beneficiary deed for William's interest in the real estate in favor of Shirley, Marjorie, and Catherine in equal shares as tenants in common. Neither Shirley, nor Marjorie, nor Catherine paid any consideration for the interest they received. The beneficiary deed was also filed with the Atchison County Recorder's office on August 3, 2001.2 William died on August 9, 2001, leaving only his two children, Brown and her brother.3
At the time of William's death, Shirley, Marjorie, and Catherine advised Brown that she had no interest in the Atchison County real estate and that she needed to open a probate estate in Nebraska related to an apartment located there that William owned at the time of his death. Brown opened and administered a Nebraska estate for William, but no probate estate was opened in Atchison County, Missouri.
Brown had no knowledge of either the power of attorney or the beneficiary deed until 2018, when she was contacted regarding an action to quiet title to a small portion of the Atchison County real estate. Brown then filed the underlying petition on February 7, 2020, naming Shirley, Marjorie, Samantha Sloop, and Double D Double S LLC as defendants.4 All defendants sought dismissal on the ground that Brown's claims were barred by the statute of limitations. The circuit court granted the motions and dismissed Brown's petition with prejudice. Brown appeals.
"We review the trial court's grant of a motion to dismiss de novo. " Brantl v. Curators of Univ. of Mo. , 616 S.W.3d 494, 497 (Mo. App. W.D. 2020). "Whether a statute of limitations bars an action is a question of law, which is subject to de novo review." Id. Though the statute of limitations is an affirmative defense that ordinarily must be raised in a responsive pleading and proven with evidence, Rule 55.08,5 "[i]f it clearly appears from the petition that a cause of action is barred by a statute of limitations, a motion to dismiss on that ground is properly sustained." Brantl , 616 S.W.3d at 497 (quoting McCormick v. Centerpoint Med. Ctr. of Indep., LLC , 534 S.W.3d 273, 277 (Mo. App. W.D. 2017) ).
In her first point on appeal, Brown argues that the circuit court erred in dismissing her petition because the court misapplied the law regarding application of the statute of limitations for constructive trusts. Brown concedes that the applicable statute of limitations is § 516.010 (),6 which requires claims to be brought within ten years of the alleged wrongful possession or taking.7 Brown argues, however, that because she is seeking a constructive trust, the statute does not begin to run unless and until the trust is repudiated, which she asserts occurred in 2019, making her petition timely.
[A] constructive trust is the method or formula used by a court of equity as a means of effecting restitution or of rectifying a situation where, as the result of the violation of confidence or faith reposed in another, or fraudulent act or conduct of such other, the plaintiff, who seeks the aid of equity, has been wrongfully deprived of, or has lost some title, right, equity, interest, expectancy, or benefit, in the property which otherwise and but for such fraudulent or wrongful act or conduct, he would have had.
Wier v. Kansas City , 356 Mo. 882, 204 S.W.2d 268, 270 (Mo. 1947). There are generally two situations that give rise to a constructive trust: (1) "where there is fraud or unethical conduct in the acquisition of property," and (2) "where the securing of title was rightful but the retention of the property was wrongful." George Gleason Bogert et al., Bogert's The Law of Trusts and Trustees § 953 (June 2021 update).
In cases alleging wrongful acquisition, a cause of action to recover the property accrues immediately, "without need for a repudiation of the obligation by the titleholder, and the [s]tatute of [l]imitations should begin to run at once against the injured party," so long as the injured party is competent and has actual or imputed notice. Id. ; see Ricords v. Watkins , 56 Mo. 553, 555 (1874) (); Kerber v. Rowe , 348 Mo. 1125, 156 S.W.2d 925, 928-29 (1941) (same).
In cases of rightful acquisition but wrongful retention of property, on the other hand, the statute of limitations does not begin to run until there is a repudiation of the trust by the property holder. Bogert's The Law of Trusts and Trustees § 953. In these cases, the repudiation is necessary, "not for the purpose of starting the running of the [s]tatute of [l]imitations but for the purpose of creating a situation where there is a wrong which may be the foundation of a constructive trust." Id. ; see Keeton's Heirs v. Keeton's Adm'r , 20 Mo. 530, 540 (1855) (). A constructive trust arises in this situation typically as a result of a confidential relationship; thus, "the right to obtain a constructive trust does not exist until the grantee has violated the confidence and denied any obligation to the grantor." Bogert's The Law of Trusts and Trustees § 953.
In either scenario, however, "the [s]tatute of [l]imitations does not run against [the claim] until the injured person knew of the wrong or had notice of facts which should have brought to him knowledge of the illegality." Id. "The rights of the beneficiary are not affected where [either] the trustee conceals the unlawful act, or for [some] other reason[,] not involving neglect on the part of the beneficiary[,] notice of it does not come to him." Id.
In this case, Brown's petition seeks a constructive trust as a matter of wrongful acquisition of property, as evidenced by her allegations that both the power of attorney and subsequent execution of a beneficiary deed in 2001 were fraudulent and void.8 Accordingly, the statute of limitations began to run at the time of William's death on August 9, 2001, when the property transferred automatically to Shirley, Marjorie, and Catherine under the beneficiary deed, unless Brown was either incompetent or lacked notice of the transfer.
Brown's petition makes no allegation of incompetence but claims a lack of actual notice of the allegedly fraudulent conveyance. The petition alleged that Shirley, Marjorie, and Catherine advised Brown, after her father's death, that she had no interest in the property,9 and she further alleged that she did not learn of either the power of attorney or the beneficiary deed until 2018. But, even if the conveyance itself were fraudulent, the ten-year limitations period of § 516.010 is not tolled by either fraudulent acts or the failure to discover fraudulent acts. Branner v. Klaber , 330 Mo. 306, 49 S.W.2d 169, 177 (1932).10 Therefore, the only facts of which Brown needed notice were those...
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... ... Brown v. Pint , 632 S.W.3d 453, 456 (Mo. App. 2021) (citing Missouri Supreme Court Rule 55.08 (2020)). If the petition clearly shows that a cause of action ... ...