Hammons v. Eisert, s. 15069

• Citation: 745 S.W.2d 253
• Decision Date: 09 February 1988
• Docket Number: 15070,Nos. 15069,s. 15069
• Parties: Brian HAMMONS, Guardian of the Estate of Francis Ralph Eisert, a/k/a Ralph Francis Eisert, Plaintiff-Respondent, v. Eugene EISERT, et al., Defendant-Appellant. Vernon B. TYLER, Plaintiff-Respondent, v. Eugene EISERT, et al., Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 253

745 S.W.2d 253

Brian HAMMONS, Guardian of the Estate of Francis Ralph

Eisert, a/k/a Ralph Francis Eisert, Plaintiff-Respondent, v. Eugene EISERT, et al., Defendant-Appellant.

Vernon B. TYLER, Plaintiff-Respondent, v. Eugene EISERT, et al., Defendant-Appellant.

Nos. 15069, 15070.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 9, 1988.

Robert L. Payne, P.C., Cassville, for defendant-appellant.

Joseph B. Phillips, Stockton, for plaintiff-respondent.

FLANIGAN, Judge.

On July 20, 1977, Nina Bowles, using her own money, purchased two certificates of deposit at a savings and loan institution in Springfield. One certificate, in the amount of $11,700, was payable to "Nina Bowles, Trustee for Francis Ralph Eisert." The other certificate, also in the amount of $11,700, was payable to "Nina Bowles and Eugene Eisert, Co-trustees for Vernon E. Tyler." This opinion will refer to the foregoing persons by their respective first names.

On May 12, 1980, Nina, then 90, and Eugene pledged the two certificates as security for two loans, one in the amount of $10,530 and the other in the amount of $10,500. Later the security was used to pay the loans and Eugene received the balance of the security. Checks representing the loans were delivered to Nina and Eugene. One check was payable to Nina and Eugene as co-trustees for Vernon, and the other check was payable to Nina as trustee for Francis.

On May 13, 1980, Nina and Eugene cashed both of the checks. With that cash they purchased a Chevrolet for $5,200. The balance of the money, $15,830, was applied by Eugene to the payment of a debt owed by Eugene to a bank in Greenfield. On March 1, 1981, Nina died. On April 6, 1981, a guardian was appointed for Francis, an incompetent person.

In December 1981 Francis, through his guardian, filed an action against several defendants, including Eugene. In October 1982 Vernon filed an action against several defendants, including Eugene. The petitions in both of the actions alleged that Eugene exercised undue influence over Nina throughout the foregoing transactions. Vernon claimed that Eugene's undue influence over Nina caused Nina to revoke Vernon's trust. Francis claimed that Eugene's undue influence over Nina caused Nina to revoke Francis's trust. Both petitions alleged that the trust funds were diverted by Eugene to his own use. Both petitions sought actual and punitive damages. Vernon and Francis were represented by the same counsel.

On motion of the plaintiffs, the cases were consolidated and tried to a jury. In Francis's case the jury found in favor of Francis and against Eugene and awarded Francis actual damages. The jury awarded Vernon $5,000 in punitive damages against Eugene, as well as actual damages. The details of the verdicts are set forth later in this opinion.

In Francis's case the trial court entered judgment in favor of Francis's guardian and against Eugene in the sum of $12,804.13. In Vernon's case the trial court entered judgment in favor of Vernon and against Eugene in the sum of $22,649.61 for actual damages and $5,000 for punitive damages, for a total amount of $27,649.61. Eugene appeals from the two judgments, and his two appeals were consolidated in this court.

In general, Eugene contends that the respective petitions failed to state a claim upon which relief can be granted against Eugene, that Francis and Vernon failed to make a submissible case against Eugene, that the cases were improperly consolidated for trial, that Eugene was entitled to a mistrial due to improper argument by plaintiffs' counsel, and that neither plaintiff was entitled to the award of "pre-judgment interest" contained in the verdicts and judgments.

On this appeal this court confines its review to the "points relied on." Rule 84.04(d). ¹ Kurtz v. Fischer, 600 S.W.2d 642, 645 (Mo.App.1980). "The questions for decision on appeal are those stated in the points relied on, and a question not there presented will be considered abandoned on appeal and no longer an issue in the case." Pruellage v. De Seaton Corporation, 380 S.W.2d 403, 405 (Mo.1964). See also Smith v. Welch, 611 S.W.2d 398, 399 (Mo.App.1981). Matters which could have been raised, but were not, are neither mentioned nor considered. This opinion should be so viewed.

Eugene's first point reads:

"The court erred in submitting these cases to the jury on the ground that plaintiffs' petitions fail to state a cause of action recognized by the courts of this state and to grant appellant's motion for summary judgment, in that the evidence showed as a matter of law that a revocable 'Totten' trust was created by Nina Bowles and that she unilaterally revoked, thus plaintiffs are without standing to recover under the facts as were alleged in the pleadings."

Portions of Eugene's first point appear to claim that the petitions are defective and that the court should have sustained his motion for summary judgment. Those portions have not been preserved for appellate review for the reason that the statement of facts section of Eugene's brief makes no mention of the contents of Vernon's petition or Francis's petition, nor does it mention the contents of Eugene's motion for summary judgment. Rule 84.04(c). The legal file does not contain Eugene's motion for summary judgment, contrary to Rule 81.12(a).

As this court understands Eugene's first point, it is that Nina, in obtaining issuance of the two certificates of deposit on July 20, 1977, created two separate revocable trusts which she "unilaterally revoked," and that plaintiffs may not complain of her act in so doing. Eugene's theory seems to be that Nina exercised her power to revoke the trusts by pledging the two certificates of deposit on May 12, 1980, and that she had a right to do so. Eugene relies primarily on First Nat. Bank of Mexico v. Munns, 602 S.W.2d 910 (Mo.App.1980), where a grantor established a revocable trust in a savings account in a bank and later pledged the trust certificate of deposit as security for a loan. The court held that the grantor's actions revoked the trust to the extent necessary to secure the loan and that upon the grantor's default in the payment of the loan the lender was entitled to the funds held in the account, despite the claims of the trust beneficiaries.

Eugene concedes, at least tacitly, that if the two trusts had not been revoked by Nina during her lifetime, Vernon and Francis would have been entitled to the respective trust funds. See § 369.179.

Neither Eugene's first point nor his argument in support of it mentions the fact that both petitions allege that Nina's conduct in pledging the two certificates of deposit was the product of undue influence exercised by Eugene. The two plaintiffs introduced substantial evidence on the issue of Eugene's undue influence, but Eugene's brief makes no mention of that evidence. Much of the evidence concerning that issue came from Eugene himself, whom the plaintiffs called as an adverse witness.

Eugene argues, and plaintiffs tacitly agree, that Nina's procurement of the two certificates of deposit on July 20, 1977, constituted the creation by her, as settlor, of two revocable trusts, with Francis and Vernon as the respective beneficiaries. Neither party has cited any authority on the question of whether a beneficiary of a revocable trust has a claim for relief, at least after the death of the settlor, against a third person who, by undue influence, induces the settlor to revoke the trust and diverts all or part of the trust funds to his own purpose. There seems to be no direct Missouri authority on the issue.

Missouri recognizes a cause of action for tortious interference with business relations. Fischer, Etc. v. Forrest T. Jones & Co., 586 S.W.2d 310, 315 (Mo. banc 1979); Minn. Mining & Mfg. Co. v. Williamson, 675 S.W.2d 951, 953 (Mo.App.1984). Missouri has long recognized that the exercise of undue influence may result in the invalidity, or at least avoidability, of the transfer of a note, Crowe v. Peters, 63 Mo. 429 (1876); the assignment of a contract, Metropolitan Paving Co. v. Brown-Crummer Inv. Co., 309 Mo. 638, 274 S.W. 815 (1925); the execution of a will, Maurath v. Sickles, 586 S.W.2d 723 (Mo.App.1979), a deed, Been v. Jolly, 247 S.W.2d 840 (Mo.1952), a mortgage, Bell v. Campbell, 123 Mo. 1, 25 S.W. 359, 45 Am.St.Rep. 505 (1894), or a trust instrument, Creek v. Union Nat. Bank in Kansas City, 266 S.W.2d 737 (Mo.1954); and the making of a gift, Michaelson v. Wolf, 364 Mo. 356, 261 S.W.2d 918 (Mo.1953), or a guaranty, Tandy v. Elmore-Cooper Live Stock Commission Co., 113 Mo.App. 409, 87 S.W. 614 (1905). "Undue influence," at least as used in a will contest, means such influence as destroys the free choice of the person making the will. MAI 15.03.

Substantial out-state authority recognizes the cause of action of tortious interference with non-business forms of advantageous economic relations. In Mitchell v. Langley, 123 Ga. 827, 85 S.E. 1050 (1915), the owner of a benefit certificate named Langley as beneficiary. The owner had the right to change the beneficiary. Mitchell fraudulently induced the owner to change the beneficiary and to appoint Mitchell as the new beneficiary of the fund, which was payable on the death of the owner. The owner died after the change was made, and Mitchell collected the amount due under the amended certificate. Upholding Langley's claim against Mitchell, the court said that although Langley had no vested interest in the certificate, this did not prevent Langley from proceeding in equity to have a trust declared in her favor if the benefit which would have accrued to her was diverted from her and the fund went into the possession of Mitchell by means of fraud.

At p. 1053 the court said:

"Would not a man have the right to receive gifts or insurance or the like, if they were in process of being perfected, and would have come to him but for malicious and fraudulent interference? A bare...