Duerbusch v. Karas

• Decision Date: 10 June 2008
• Docket Number: No. ED 88883.,ED 88883.
• Citation: 267 S.W.3d 700
• Parties: John P. DUERBUSCH, Jr., as Personal Representative of the Estate of Marcella M. Karas, Deceased, John P. Duerbusch, Jr., Individually, Joseph J. Duerbusch, Individually, and Thomas H. Duerbusch, Respondents, v. Donald KARAS, Appellant.
• Court: Missouri Court of Appeals

267 S.W.3d 700

John P. DUERBUSCH, Jr., as Personal Representative of the Estate of Marcella M. Karas, Deceased, John P. Duerbusch, Jr., Individually, Joseph J. Duerbusch, Individually, and Thomas H. Duerbusch, Respondents, v. Donald KARAS, Appellant.

No. ED 88883.

Missouri Court of Appeals, Eastern District, Division Five.

June 10, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 15, 2008.

Application for Transfer Denied November 25, 2008.

Robert J. Maurer, Clayton, MO, for appellant.

John C. Garavaglia, Clayton, MO, for respondents.

PATRICIA L. COHEN, Chief Judge.

Introduction

Donald Karas ("Karas") appeals from the judgment of the Circuit Court of the City of St. Louis in favor of John, Joe and Thomas Duerbusch ("Duerbusches") awarding damages of $580,822.55 on their claim that Karas used undue influences to obtain survivor benefits from Marcella Karas ("Decedent"). Karas contends the trial court erred because: (1) insufficient evidence supported the judgment; (2) the trial court abused its discretion in allowing expert testimony; and (3) the trial court lacked jurisdiction to enter an amended judgment more than thirty (30) days after the entry of the final judgment. We affirm.

Facts and Proceedings Below

Decedent died intestate on September 22, 1996. Her sole heirs were three nephews John, Joe and Tom Duerbusch, the children of her predeceased brother. Following Decedent's death, a probate estate opened in the Circuit Court of the City of St. Louis, which contained the two houses owned by Decedent. John Duerbusch was appointed personal representative of the estate. At the time of her death, Decedent also possessed a total of twenty-two separate bank accounts, 1,463 shares of Union Electric stock, a safe-deposit box and an annuity with Western-Southern Life Assurance Company. The accounts and investments had an aggregate value of approximately $1,161,279 and contained payable on death ("POD") designations to Karas, her nephew through marriage. Following the opening of the probate estate, the Duerbusches filed a Petition to Discover Assets in the Circuit Court alleging among other things, that Karas used undue influence to obtain survivor benefits from Decedent.

In June 2006, the case proceeded to a jury trial. The Duerbusches argued that Decedent's dependence upon Karas allowed him to exercise undue influence over the disposition of her accounts and investments. They asserted that Decedent had difficulty making financial and practical decisions on her own, having been raised as a "traditional-style" woman with a limited education, and depending upon various male relatives to assist her in her daily life. Once both her husband and brothers died, the Duerbusches argued, Decedent began to depend upon Karas to do everything from taking her to the store and the bank to assisting her around her home to making financial decisions.

The Duerbusches each testified that the Duerbusch family had a tradition of attempting to avoid probate, based on a concern that a probate estate would cost too much in court and attorney fees. As a result, they claimed, relatives would appoint another relative as an "executor" of their estates, which was merely a formal name for a person they trusted, and they would jointly file their bank accounts and other property with the "executor" so that the "executor" would pay the bills and the funeral expenses and divide the remaining assets among the heirs.

The Duerbusches also testified that while they repeatedly saw Decedent while growing up, she stopped attending family functions and began to spend more time with Karas and his family after her husband and brother died. Around this time, they noted, Decedent began to speak more and more about Karas, where she had not in the past, stating, "What would I do without Donnie?" Moreover, they noted, Karas began to run errands with Decedent and assist her around the house.

John Duerbusch testified that he had a close relationship with Decedent, who was his godmother. John stated that he began to visit and contact her more after her husband and brother had both passed away. On one occasion, he stated, Decedent asked him to come over to her house to fix clogged sinks, which were clogged because she had gone without hot water for six to eight months. John testified that, at one point, Decedent suggested that she ought to put his name on her accounts, but that he hesitated and suggested to her that they should wait and think about it. After that, Karas began taking her to the bank and John never took her again.

John further testified that in the year before Decedent died, Karas had far more contact with her than anyone else. John stated that very few people visited Decedent and Karas was at her house "all the time," spending almost every night there until she passed away. According to John, once Karas became more involved, Decedent refused to go to the hospital when she became ill because she was afraid her house would be robbed while she was away. John also contended that Decedent allowed Karas to lock her inside her home when he left for periods of time because she was concerned about her safety. Lillian Duerbusch, the widow of Decedent's cousin, testified that in August 1996, she had difficulty getting Decedent on the telephone and that when she went to visit Decedent at her home Karas acted as if he was going to block her from entering.

In addition to assisting with her shopping and necessary errands, Karas also assisted Decedent with health care, financial and legal matters. Towards the end of her life, Decedent developed problems with her legs, feet and breathing. Karas arranged for his doctor, Dr. Felder, to see Decedent in her home.¹ Debra Teson, the nurse who provided home health care for Decedent, kept written notes regarding her daily neurological assessment, which describe Decedent's recall as "poor after five minutes and states `I'm in such a dither with this new routine. I can't retain it all.'" In the area of her notes entitled "Neurological," Ms. Teson also described Decedent as: "forgetful," "flat affect," "disorganized," "depressed," and "inability to recognize problems." Ms. Teson expressed concerns with the neighborhood, the living arrangement between Decedent and Karas, and with Decedent being left alone in the house.

Decedent hired Karas' attorney, who drafted a durable power of attorney for health care decisions naming Karas as attorney-in-fact and an additional document providing Karas authority to make decisions concerning Decedent's real estate. Although Decedent had previously used her brother's accountant, she began to employ Karas' accountant to prepare her taxes.

On December 14, 15, and 18, 1995, Karas took Decedent to Magna Bank, Roosevelt Bank, Pulaski Bank, Boatmen's Bank and Union Electric.² During those three days, Decedent made all of her accounts—including her Union Electric stock—payable on death to Karas. In addition, Decedent titled one of her accounts jointly with Karas so that he could use the account to pay for her bills, medicine and groceries.³ In June 1996, Decedent closed two of her Roosevelt accounts and used the proceeds to purchase an annuity from Western-Southern Life Assurance Company. She listed Karas as the beneficiary after Karas spoke to a representative at the bank about the annuity. In spite of these transfers, Decedent told Mrs. Duerbusch, Mrs. Gonzalez and John Duerbusch that she wanted to split her assets between Karas and John Duerbusch. John Duerbusch testified that approximately ten days before she died, Decedent told him that she did not intend for Karas to become the owner of her property but that she wanted to use her property to take care of both John and Karas and that Karas knew her wishes.

John testified that on the night Decedent died, Karas came to his home and told him that he would pay his home mortgage because Decedent would have wanted him to do it. John asked Karas about the rest of the money but Karas stated that they would talk about it later and immediately left. Approximately one week later, Karas closed all of Decedent's accounts, filed a claim for the proceeds of the annuity and transferred the title on the stock to his name. Prior to closing the accounts, Karas purchased twenty-four death certificates, the exact number of accounts and investments that Decedent possessed. Following the closing of the accounts and the re-titling of the investments, Karas received approximately $1,161,279 from Decedent's accounts and investments.

Dr. Sean Yutzy, a forensic psychiatrist testifying on behalf of the Duerbusches, opined that Decedent had been at a substantial risk of undue influence at the time she granted Karas survivorship benefits. In so concluding, Dr. Yutzy relied on Decedent's long-standing history of dependency, upbringing, lack of education, failure to learn how to drive, tendency to procrastinate, ill health, and "unusual behaviors."⁴

Phyllis Gonzales and several of Decedent's friends from church and the neighborhood ("the friends") testified for Karas, stating that Decedent was a strong, smart woman, who did a lot of work for her church and kept good records. The friends maintained that even into the last six months of her life, Decedent remained extremely active as a leader in the Steam Club of St. Joseph's Church, an organization she had helped found to raise money to assist the church in heating the Shrine of St. Joseph, a noted landmark. The friends further testified that Decedent did not have any trouble making decisions and if she made up her mind to do something, she did it. Decedent's friends and neighbors denied that she had any tendency to procrastinate or had any problems with her Steam Club duties.⁵

In addition, the friends stated that Decedent had expressed gratitude towards Karas for his assistance and kindness to her and frustration with John and his brothers for not coming to visit her. These witnesses...