Hahn v. Tanksley

• Citation: 317 S.W.3d 145
• Decision Date: 31 August 2010
• Docket Number: No. SD 29751.,SD 29751.
• Parties: Madolyn HAHN, Personal Representative of the Estate of Jerry L. Hahn, Deceased, Plaintiff-Appellant,v.Patricia TANKSLEY, and Rick Tanksley, and Mona Horrell and Randy Horrell, Defendants-Respondents.
• Court: Court of Appeal of Missouri (US)

317 S.W.3d 145

Madolyn HAHN, Personal Representative of the Estate of Jerry L. Hahn, Deceased, Plaintiff-Appellant,v.Patricia TANKSLEY, and Rick Tanksley, and Mona Horrell and Randy Horrell, Defendants-Respondents.

No. SD 29751.

Missouri Court of Appeals,

Southern District,

Division One.

May 27, 2010.

Motion for Rehearing or Transfer Denied

June 18, 2010.

Application for Transfer Denied

Aug. 31, 2010.

COPYRIGHT MATERIAL OMITTED

Tom K. O'Loughlin, II, Cape Girardeau, MO, for Appellant.

Albert M. Spradling, III, Cape Girardeau, MO, for Respondents.

JEFFREY W. BATES, Judge.

Jerry Hahn (Jerry) brought suit against his daughters, Patricia Tanksley (Pat) and Mona Horrell (Mona) (collectively, Daughters), and their husbands, Rick Tanksley and Randy Horrell.¹ Jerry sought to set aside a deed and recover proceeds from certain bank accounts that Daughters had allegedly converted. Shortly after the case was tried to the court, Jerry died. Madolyn Hahn (Hahn), who was Jerry's third wife, was appointed as the personal representative of his estate. Personal representative Hahn was substituted as the plaintiff in the underlying action. Thereafter, the trial court ruled against Hahn and in favor of Daughters. On appeal, Hahn contends the trial court erred by: (1) refusing to set aside the deed because the only substantial and competent evidence in the case, as well as the weight of the evidence, supported Jerry's request for rescission of the deed; and (2) refusing to enter a money judgment for the proceeds of the bank accounts because the only substantial and competent evidence in the case showed Jerry did not intend to give the proceeds to Daughters. This Court affirms.

I. Factual and Procedural Background

Jerry was born in 1935. He died in November 2008 at the age of 73. Jerry was married three times and believed he had five children: one son born during his first marriage; the two Daughters born during his 48-year marriage to Glenda Hahn (Glenda); and two other children, a son and a daughter, born out of wedlock to Hahn while Jerry was married to Glenda. Jerry's belief that Hahn's children were his offspring was based upon the fact that he had an affair with Hahn while married to Glenda. No tests to determine the paternity of Hahn's children were ever done, and Hahn never asked Jerry for child support. Glenda died of cancer in October 2003. In February 2006, Jerry married Hahn.

Jerry attended school through the eighth grade. At age 13, Jerry began working for his aunt and uncle, Daisy and Herman Birkman, on their farm (hereinafter, the farm). The farm, which was bisected by Gizzard Creek, was located in Bollinger County just across the Cape Girardeau County line. The property consisted of 105 acres of flat, irrigated land used to grow row crops. It was worth from $300,000 to $350,000. The Birkmans also owned a house in Chaffee (hereinafter, the Birkman house). Herman died first, and then Daisy died in 1988. While married to Glenda, Jerry inherited the farm, the Birkman house and $14,000 in cash. After inheriting the farm, Jerry rented it to others. At the time of trial, the farm was rented to Terry Givens for $9,400 a year. Daughters never worked on the farm. Jerry and Glenda later decided to trade the Birkman house for a different residence in Chaffee (hereinafter, the Chaffee house). During the marriage, Glenda did not inherit any property. Other than the Birkman inheritance, the couple's assets were acquired as a result of their employment while they were married.

Beginning at age 10, Jerry had been employed as a school “janitor” making $10.00 a month. Thereafter, he worked at a shoe factory for 11 years. He was a Teamster for 28 years, hauling heavy construction equipment to job sites all over the country. Jerry began smoking two or three packs of cigarettes a day at age 16 or 17 and continued to smoke heavily throughout his working years. After angioplasty in 1990 at age 55, Jerry was disabled and never worked again. Following his disability, Jerry said “he couldn't do too much.” About eight years prior to the trial, Jerry began breathing with the aid of an oxygen canister he carried with him. His heart and lungs were in failing condition. During the couple's marriage, Glenda worked at a shoe factory, kept family records, paid bills and made bank deposits. Jerry said he “never had any use for checks” and never wrote a check. He signed checks completed for him by others, including Glenda, Mona, Pat or the payee. He turned his earnings over to Glenda. While she handled the checking and savings accounts, Jerry did know how to review those account statements and did so after he became disabled.

Beginning in 1979, Glenda, Pat and Mona had opened a joint savings account (Account 1). Jerry's name was not on Account 1 at the time the account was created, but he was added to the account in July 1984. Jerry and Glenda also had another joint savings account (Account 2). Both accounts were at a bank in Chaffee. Daughters also were named on the checking account of Jerry and Glenda, which was used solely for the couple's expenses.

In the fall of 2003, Glenda was diagnosed as having cancer. In early October 2003, Jerry asked Pat to go to the bank. Jerry told bank employee Denise Haislip (Haislip) that he wanted to deposit $8,200 into Account 1 and have his name taken off of Account 1 and Account 2. Haislip testified that an account holder cannot just remove his or her name from an account. Instead, the account must be closed, and a new account must be opened. Jerry instructed Haislip to do so, which resulted in two new joint accounts being set up in only Daughters' names. Documentary evidence from the bank confirmed that this procedure was followed. Jerry signed withdrawal slips from Account 1 and Account 2 and then deposited the same amounts into new accounts in Daughters' names only. A deposit was put into the first new savings account for Daughters (Account 3) in the amount of $31,985.56, which consisted of the money from Account 1 plus the $8,200 deposit. Another deposit was put into the second new savings account for Daughters (Account 4) in the amount of $17,206.27.²

Later in October 2003, Jerry went to see Jim Green (Green) while Glenda was in the hospital. Green was a Sikeston lawyer who had done Jerry's legal work for 20 years. Jerry had never used any other lawyers. As a result of the meeting, Green prepared two beneficiary deeds: one for the farm; and another for the Chaffee house. The deed beneficiaries were Daughters. Jerry and Pat returned to Green's office to sign the two beneficiary deeds. Because Glenda was in the hospital, she did not go and was unable to sign the deeds. According to Pat, Green advised her to sign her mother's name on both deeds, although the attestation clauses both said Glenda “personally appeared.” ³ Pat was aware of these deeds and knew generally the legal effect was to make them the owners of the Chaffee house and the farm at the death of the surviving parent. The Daughters also understood that, prior to that event, they could be eliminated as beneficiaries. Jerry described the deeds as “putting somebody else's name on with yours.” He understood that, because of these two beneficiary deeds, the farm and the Chaffee house would be owned by Daughters when he and Glenda were both deceased. The notarized deeds bore the date October 1, 2003 and were recorded on October 6, 2003. Green also prepared a durable power of attorney for Jerry, appointing Pat and Mona as his attorneys-in-fact to make decisions on Jerry's behalf in the event he was unable to do so. The durable power of attorney, however, was not executed at that time.

Following Glenda's death in late October 2003, Daughters (primarily Mona) handled Jerry's checking account for him and paid his bills. Jerry kept currency in his home safe, and Pat knew the combination. Daughters' assistance continued from Glenda's death in October of 2003 until mid-2005. During that time, Daughters would stop to see their father before work and would sometimes stop at noon. Jerry would come to their houses to eat from time to time. They would visit with Jerry before he went to bed. They often took him to the store or picked up items that he needed. In January or February of 2004, Jerry also started seeing Hahn again.

In February 2005, Jerry drove himself to Green's office to discuss estate planning issues. Jerry asked Pat to meet him there. Jerry wanted to put the farm and the Chaffee house in Daughters' names “with him having a lifetime estate.” Jerry also wanted to continue receiving the rent from the farm. Jerry asked Green to prepare deeds to accomplish that end. Green said he would prepare the warranty deeds soon and call Jerry to come sign them when they were ready.

Thereafter, Green prepared the deeds as promised. He left a message on Jerry's answering machine that the deeds were ready, but Jerry never went back to Green's office to sign the deeds because he got sick.⁴ On February 18, 2005, Jerry was admitted to Southeast Missouri Hospital in Cape Girardeau (the hospital). Initially, he was admitted for exacerbation of chronic obstructive pulmonary disease, urinary incontinence and hypertension. Jerry's medical records note breathing problems “off and on for a few weeks” and that Jerry was seen in the emergency room twice before admission.⁵ Jerry's breathing problems worsened despite breathing treatments. Among other ailments, Jerry had congestive heart failure. He had to be intubated and remained on a ventilator many days. He required tube feeding. He was “very confused” upon being extubated. He was given Seroquel, an anti-psychotic drug, because he became “quite confused” and “agitated.” Jerry was taking 11 medications in addition to Seroquel.

On March 12, 2005, Dr. Spitler, a cardiologist treating Jerry, noted that he was confused, but “is oriented.” Dr. Brent Voszler (Dr. Voszler), Jerry's expert, acknowledged that Dr. Spitler underlined the...