Estate of Boatright

• Decision Date: 17 September 2002
• Docket Number: No. 24378.,24378.
• Citation: 88 S.W.3d 500
• Parties: In the ESTATE OF Robert Charles BOATRIGHT, Deceased. Delores Irene Boatright, as Per. Rep., and individually, Respondent, v. Michael E. BOATRIGHT, Appellant.
• Court: Missouri Court of Appeals

88 S.W.3d 500

In the ESTATE OF Robert Charles BOATRIGHT, Deceased Delores Irene Boatright, as Per. Rep., and individually, Respondent, v. Michael E. BOATRIGHT, Appellant.

No. 24378.

Missouri Court of Appeals, Southern District, Division One.

September 17, 2002.

Motion for Rehearing or Transfer Denied October 10, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert W. Richart, Tomie K. Parsons, Joplin, for appellant.

W. Henry Johnson, Sims, Johnson, Wood & Farber, Neosho, for respondent.

ROBERT S. BARNEY, Judge.

Michael E. Boatright ("Appellant") appeals from an amended judgment of the Probate Division of the Circuit Court of Newton County ("probate court") in favor of Delores Irene Boatright, Personal Representative of the Estate of Robert Charles Boatright, deceased, ("Respondent"), after a discovery of assets proceedings. See § 473340.¹ In its amended judgment, the probate division found that Appellant had willfully and wantonly converted proceeds from the sale of certain real estate previously jointly held by the decedent and his ex-wife, and granted Respondent an award of $56,288.50.² Appellant raises four points of probate court error, discussed below. We affirm.

The record shows that Robert Charles Boatright ("Robert") died intestate on October 1, 1999. Appellant was the brother of Robert. Prior to his death, Robert, together with his ex-wife, on August 26, 1999, entered into a contract for the sale of their residence on Kenser Road, Joplin, Missouri. They each held an interest in the real estate after the dissolution of their marriage. The closing date for the Kenser Road property was set for September 20, 1999.

On September 7, 1999, Delores Irene Boatright and Robert married.³ Thereafter, it became necessary for Robert to travel to Mayo Clinic in Rochester, Minnesota for medical treatment. Because of Robert's illness, Delores accompanied him. They were scheduled to be at Mayo Clinic on September 20, 1999, the same day as the closing on the real estate contract previously mentioned.

In order to facilitate the closing of the real estate contract, Robert and Delores executed a "Special Power of Attorney," appointing Appellant as their "true and lawful attorney" and authorizing Appellant to "do all acts and things in connection with the acquisition, management, sale and/or encumbrance" of the real property in question. Appellant appeared at the closing and signed various documents on behalf of Robert and Delores.

The record further shows that at closing Appellant received a check for $66,288.50, constituting Robert's share of the proceeds from the sale of the property in question. The check was made out jointly to Robert and his new wife, Delores. At this time, Robert had returned from Minnesota and was hospitalized at St. John's Hospital in Joplin, Missouri. Appellant appeared at the hospital and requested that Delores endorse the check, which she did. The record is devoid of a showing that Robert endorsed the check.⁴ Appellant then deposited the money in Robert's account at Mercantile Bank, the same being Account # 603600920-4, on September 21, 1999. Later, it was discovered that this particular account also contained the name of "Michael Boatright," i.e., Appellant, together with "Robert C. Boatright," i.e., Robert. As best we discern from the record, Appellant had never previously made any deposits or withdrawals from this particular account. Appellant acknowledged during the hearing that both Robert and himself had "signed signature cards." However, none were produced at trial.

The record also reveals that on September 24, 1999, Appellant withdrew $65,000.00 from Mercantile Account 603600920-4 and deposited this sum into Appellant's separate Mercantile Account 602003859-9, in Appellant's sole name and, according to Appellant's testimony, "gave Delores $10,000.00 to pay Bob's bills."⁵ Appellant testified that he had withdrawn the $65,000.00 "[t]o keep the money safe," and that he later gave Robert's son, Scott Boatright, the sum of $54,000.00 "because that's what Bob told me to do with it." Despite the foregoing, Appellant also related that the proceeds from the sale of the real estate were his exclusively.⁶

"The decree or judgment of the trial court will be sustained by the appellate 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.'" Ryan v. Spiegelhalter, 64 S.W.3d 302, 305 (Mo. banc 2002) (quoting Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).

Although Appellant's first point but marginally complies with the requirements of Rule 84.04(d), there is no precedential value in setting it out. We are able to discern that Appellant seeks to challenge the jurisdiction of the probate division of the circuit court to hear this action. We review the point gratuitously. Rule 84.13(c). In this endeavor we are aided by our review of the argument portion of Appellant's first point.

Appellant argues that what Respondent truly sought was a money judgment for breach of a fiduciary duty, notwithstanding the "clear case law that holds that V.A.M.S., 473.340 is not designed to test general fiduciary conduct." However, from our review of the pleadings, it is clear that Respondent's petition for discovery of assets was a search for assets owned by the decedent at the time of his death. Estate of Mitchell, 610 S.W.2d 681, 684 (Mo.App.1980). While Appellant's fiduciary conduct was necessarily implicated, it was not the primary thrust of either the original or amended petitions for discovery of assets. Indeed, Respondent sought redress from Appellant pursuant to § 473.340, for having converted the specific proceeds from the sale of the real estate in question and not damages for violation of Respondent's fiduciary obligations, per se.

"The probate division of the circuit court has original and exclusive jurisdiction over a proceeding to discover assets pursuant to section 473.340."⁷ Ryan, 64 S.W.3d at 305; Estate of Williams, 12 S.W.3d 302, 305 (Mo. banc 2000). "In a discovery of assets proceeding, the court's role is to determine whether specific property has been adversely withheld or claimed." Ryan, 64 S.W.3d at 305; see Estate of Williams, 12 S.W.3d at 305. `The statute is not intended as a device to test general fiduciary conduct, improper administration of the estate, or general disputes among heirs.'" Ryan, 64 S.W.3d at 305 (quoting Estate of Goldenberg, 601 S.W.2d 637, 639 (Mo.App.1980)). "`A discovery of assets action, as its name implies, is a search for assets.'" Id. (quoting State ex rel. Knight v. Harman, 961 S.W.2d 951, 954 (Mo.App.1998)).

"Modern amendments to the probate code, however, have expanded the jurisdiction of the probate division so that today a discovery of assets proceeding extends to all species of property, including real estate." Ryan, 64 S.W.3d at 306; see Estate of Goslee, 807 S.W.2d 552, 554 (Mo. App.1991). "Moreover, the probate division in such a proceeding is now afforded inherent power of the circuit court to adjust equities between the parties without rigid adherence to any form and may shape the remedy to meet the demands of justice." Ryan, 64 S.W.3d at 306; Estate of Cantonia, 684 S.W.2d 592, 595 (Mo.App. 1985); see also § 472.030. "By virtue of its equitable jurisdiction, the probate division is not limited to questions of legal title, but it may determine both legal and equitable claims of an estate to title in an asset." Ryan, 64 S.W.3d at 306.

"A proceeding under section 473.340 is similar to common law actions of trover or conversion." Ryan, 64 S.W.3d at 305-06; see Knight, 961 S.W.2d at 954. Being mindful of the wide-ranging powers now granted the probate court, to consider matters both legal and equitable, see Estate of Goslee, 807 S.W.2d at 554, combined with the fact that "the strict rules of pleadings in circuit court petitions do not apply to probate proceedings,'" Ryan, 64 S.W.3d at 308 (quoting Estate of Miller, 9 S.W.3d 760, 765 (Mo.App.2000)), we now consider whether the facts of the case set out a cognizable claim for conversion. To do so, it is efficacious that we review some of the axioms of the law relating to an action for conversion.

As a general rule "conversion is `any distinct act of dominion wrongfully exerted over one's property, in denial of his right or inconsistent with it.'" Reason v. Payne, 793 S.W.2d 471, 474 (Mo.App. 1990) (quoting Kansas City Cas. Co. v. Westport Avenue Bank, 191 Mo.App. 287, 177 S.W. 1092, 1093-94 (1915)); see Walker v. Hanke, 992 S.W.2d 925, 930 (Mo.App. 1999). It may be proved in three ways: "`(1) by tortious taking; (2) by any use or appropriation to the use of the person in possession, indicating a claim of right in opposition to the rights of the owner, or (3) by a refusal to give up possession to the owner on demand.'" Reason, 793 S.W.2d at 474 (quoting Arnold v. Prange, 541 S.W.2d 27, 30 (Mo.App.1976)).

Money represented by a general or ordinary debt is not subject to a claim for conversion. See Reason, 793 S.W.2d at 474; see Breece v. Jett, 556 S.W.2d 696, 709 (Mo.App.1977). "As a general rule a claim for money may not be in conversion because conversion lies only for a specific chattel which has been wrongfully converted." Dayton Const., Inc. v. Meinhardt, 882 S.W.2d 206, 208 (Mo. App.1994). This includes withdrawal of money from a joint bank account. See id.

Nevertheless, money can be an appropriate subject of conversion "when it can be described or identified as a specific chattel." Breece, 556 S.W.2d at 710. Thus, an action for conversion may lie to claim a deposit of monies previously made preliminary to the purchase of a vehicle. Coleman v. Pioneer Studebaker, Inc., 403 S.W.2d 948, 951-52 (Mo.App.1966). Also, misappropriated funds placed in the custody of another for a definite purpose may be subject to a suit for conversion. Reaso...