Estate of Gross v. Gross
| Decision Date | 22 September 1992 |
| Docket Number | Nos. 60549,60606,s. 60549 |
| Citation | 840 S.W.2d 253 |
| Parties | In the ESTATE OF Cornelius Henry GROSS, Deceased, Dorothea Lee Stohl, Mary June McGinnitey and Doris Herberholz, Administrator Ad Litem, Plaintiffs-Respondents, v. James Edward GROSS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Doskocil & Doskocil, P.C., John L. Doskocil, Christopher J. Doskocil, Sunset Hills, for defendant-appellant.
Kim Roger Luther, Katherine L. Butler, St. Louis, Gallop, Johnson & Neuman, Edwin Akers, Sterling Miller, Clayton, for plaintiffs-respondents.
James Gross, (hereafter defendant) appeals from a judgment that he adversely held assets belonging to the estate of his father, Cornelius Henry Gross, and from a court order imposing a constructive trust upon said assets.
Defendant raises six points on appeal. (1) The trial court erred in denying his motions for directed verdict, for judgment notwithstanding the verdict, and for new trial based on the insufficiency of the evidence. (2) The trial court erred in overruling his motion in limine and in admitting evidence of defendant's actions taken subsequent to his father's death. (3) The trial court erred in submitting plaintiff's non-MAI instruction 5 defining "undue influence." (4) The trial court erred in submitting plaintiffs' instruction 6, a verdict director. (5) The trial court erred in refusing to give defendant's tendered converse verdict director. (6) And the trial court erred in entering judgment on count II and setting up a constructive trust. We will address the issues as they were raised in defendant's briefs.
This is a discovery of assets proceeding pursuant to § 473.340 RSMo (1986) for the estate of Cornelius Henry Gross (hereafter Cornelius), deceased father of both plaintiffs and defendant. Two sisters, Mary June McGinnitey and Dorothea Stohl (hereafter plaintiffs), brought suit against their brother, (defendant), alleging in count I that he exerted undue influence, fraud and deceit upon Cornelius to induce him to title his assets and safety deposit box in joint tenancy with defendant. In count II, plaintiffs asked the court to establish a constructive trust on these assets, with distribution pursuant to Cornelius' last Will and Testament.
In establishing the facts from an unfavorable jury verdict, we accept plaintiffs' evidence as true and disregard defendant's evidence except as it supports plaintiffs' case, and we afford plaintiffs all favorable inferences which reasonably may be drawn. Hodges v. Hodges, 692 S.W.2d 361, 376 (Mo.App.1985).
On July 21, 1990, Cornelius died leaving a wife and six surviving children. At his death, Cornelius possessed assets exceeding $360,000.00, the majority was listed in joint-tenancy with defendant. Cornelius' last Will and Testament, executed on March 31, 1985, made specific bequests to his three estranged children of $100, $100, and $5000, while explicitly providing that the remainder of his estate be divided equally between his three favorite children: (here, the two plaintiffs and defendant). Cornelius' wife, (hereafter Geraldine), waived all claims to her husband's estate in an antenuptial agreement.
The controversy surrounding this cause arose out of Cornelius' actions, beginning in 1985 and lasting until his death, in placing the bulk of his assets in joint-tenancy with defendant. At Cornelius' death these jointly held assets, valued at $357,861.62, were controlled and possessed by defendant, thus reducing Cornelius' estate to $5,700.00.
After a two day trial, the jury returned a verdict for plaintiffs, finding defendant guilty of exerting undue influence upon Cornelius, and valuing the adversely held assets from the estate of Cornelius Henry Gross at $357,861.62. In addition to the judgment on discovery of assets, the trial court also imposed a constructive trust upon the disputed assets.
At trial, plaintiffs presented evidence revealing defendant's scheme to gain exclusive control of Cornelius' assets. The plan centered around defendant's use of his confidential relationship with Cornelius to unduly influence Cornelius into titling his assets and safe deposit box in joint-tenancy with defendant. In doing so, defendant knowingly made false representations to Cornelius. For example, defendant convinced Cornelius that it was in Cornelius' best interest to title his assets in joint-tenancy with defendant. He caused Cornelius to believe that the joint-tenancies would allow the estate to avoid probate taxes and leave more money for the three children to divide. From the beginning, however, defendant planned to keep the money for himself. Defendant preyed on Cornelius' fears about what would happen to his estate, if he should become incapacitated and eventually die. Therefore, at defendant's urging, Cornelius agreed to place defendant as joint-tenant on certain of his assets, but only so defendant could hold his property in trust for the benefit of the heirs named in Cornelius' Will. Cornelius trusted defendant to honor this agreement.
In his first point on appeal, defendant claims that the trial court erred in denying his motion for directed verdict, his motion for judgment notwithstanding the verdict, and his motion for new trial based on the insufficiency of the evidence to prove a fiduciary relationship or undue influence. We disagree, and hold plaintiffs' evidence sufficient to submit the case to the jury.
Before reaching the merits of defendant's challenge to the evidence, we note that defendant waived the issue at trial. A motion for judgment notwithstanding the verdict is properly preserved only when a motion for directed verdict at the close of all the evidence has been made. Brandhorst v. Carondelet, 625 S.W.2d 696, 698 (Mo.App.1981). If defendant presents no evidence, then the required motion for directed verdict is made at the close of plaintiff's evidence; however, if the defendant does present evidence, then the required motion must be made at the close of all the evidence. Failure to file such a motion at the close of all the evidence waives a contention that plaintiff failed to make a submissible case. Schnatzmeyer v. Nat'l Life Ins., 791 S.W.2d 815, 819 (Mo.App.1990) (citation omitted). In the case sub judice, defendant moved for directed verdict at the close of plaintiffs case, but failed to make the same motion at the close of all the evidence. Instead, at the close of all the evidence defendant re-submitted his motion to dismiss, and he now asks this court to treat his "motion to dismiss" as a "motion for directed verdict." The record, however, does not show that the trial court clearly understood and treated defendant's motion as a motion for directed verdict. See Frisella v. Reserve Life Ins. Co. of Dallas, 583 S.W.2d 728, 731-732 (Mo.App.1979). Accordingly, we cannot properly construct a motion for directed verdict out of defendant's motion to dismiss. Defendant's post-verdict motion for judgment notwithstanding the verdict is without basis and preserves nothing for appellate review. Brandhorst, 625 S.W.2d at 698.
Defendant's waiver notwithstanding, this court may review plain errors affecting substantive rights under Rule 84.13(c). Farnsworth v. Farnsworth, 728 S.W.2d 223, 225-226 (Mo.App.1986); Rule 84.13 [1992]. On plain error review, defendant must show that the "verdict represents manifest injustice or a miscarriage of justice...." Farnsworth, 728 S.W.2d at 228. Even on a more scrutinizing review, it would not be the function of this court to determine the existence of undue influence. Our review is limited to a determination of whether or not the evidence, viewed favorably to the contestants, establishes facts from which the jury could have reasonably inferred undue influence. Matthews v. Turner, 581 S.W.2d 466, 472 (Mo.App.1979) (quoting Simmons v. Inman, 471 S.W.2d 203 (Mo. banc 1971)).
"A motion for a directed verdict is appropriate only where ... reasonable minds could find only in favor of the moving party." Duvall v. Brenizer, 818 S.W.2d 332, 335 (Mo.App.1991). A case for discovery of assets, however, should not be submitted to the jury unless " 'each and every fact essential to liability is predicated on legal and substantial evidence.' " Id. (quoting Owens v. Union Elec. Co., 729 S.W.2d 248, 250 (Mo.App.1987)) (emphasis added). Although, Estate of Stanley, 655 S.W.2d 88, 91 (Mo.App.1983) (quoting Pasternak v. Mashak, 392 S.W.2d 631, 637[7-10] (Mo.App.1965)).
The exercise of undue influence most often requires a case-by-case analysis and is usually proven by circumstantial evidence. See Godsy v. Godsy, 504 S.W.2d 209, 213 (Mo.App.1973); Matthews, 581 S.W.2d at 471 (quoting Davis v. Pitti, 472 S.W.2d 382 (Mo.1971)). "[P]ersons exerting undue influence will do so in as subtle, furtive, indirect and elusive a manner as possible and ... such influence may therefore be shown 'indirectly by the reasonable and natural inferences drawn from the facts and circumstances proved....' " Robertson v. Estate of Zimmerman, 778 S.W.2d 805, 809 (Mo.App.1989) (quoting Salisbury v. Gardner, 515 S.W.2d 881 (Mo.App.1974)). Matthews, 581 S.W.2d at 472.
Disputing plaintiffs' allegations of undue influence, defendant claims the joint tenancies have been created in accordance with Missouri statute § 369.174 RSMo (1986...
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