Houston v. Crider, SD 29879.

CourtCourt of Appeal of Missouri (US)
Citation317 S.W.3d 178
Docket NumberNo. SD 29879.,SD 29879.
PartiesBetty HOUSTON, Wayne Keathley, Leslie Marsden, Monica Keathley, Judy Payne, Janet McDowell, Dennis Smith, and Gary McDowell, Plaintiffs-Respondents,v.Sherry L. CRIDER and John L. Crider, Defendants-Appellants.
Decision Date20 July 2010

317 S.W.3d 178

Betty HOUSTON, Wayne Keathley, Leslie Marsden, Monica Keathley, Judy Payne, Janet McDowell, Dennis Smith, and Gary McDowell, Plaintiffs-Respondents,
Sherry L. CRIDER and John L. Crider, Defendants-Appellants.

No. SD 29879.

Missouri Court of Appeals,
Southern District,
Division Two.

July 20, 2010.

317 S.W.3d 179


317 S.W.3d 180


317 S.W.3d 181
John M. Albright and Daniel T. Moore, Moore, Walsh & Albright, L.L.P., Poplar Bluff, MO, for Appellants.

Matthew B. Lee and James E. Spain, Spain, Miller & Spain, L.L.C., Poplar Bluff, MO, for Respondents.

GARY W. LYNCH, Presiding Judge.

Sherry L. Crider and John L. Crider, (individually “Sherry” and “John” and collectively “Defendants”) 1 appeal the trial court's judgment setting aside a deed dated September 22, 2003, from Irene Norried conveying to Sherry a house and lot (“property”) owned by Irene in Van Buren, Missouri. 2 Finding no merit in either of Defendants' claims of trial court error, we affirm.

Factual and Procedural Background

The property was originally owned by Ben Keathley. With his first wife, Ben had a son, Harrison Keathley. Harrison had two children, Jo Ann and David Keathley. Ben and his second wife, Lelah, had five children-Edda Mae, Wayne, Billie, Ervin, and Betty-who are now all deceased. Their children, Ben and Lelah's grandchildren, are the plaintiffs in this action. After Lelah's death, Ben married Lelah's niece, Inez Hughes. Inez was the sister of Irene Norried.

Inez acquired the property upon Ben's death. Thereafter, she conveyed the property to herself and Irene as joint tenants with right of survivorship. Upon Inez's death, Irene became the sole owner of the property. On September 1, 2000, Irene executed a beneficiary deed naming Wayne Keathley, Ervin Keathley, Betty Houston, Joan Copper, David Keathley, Gary McDowell, Judy Payne, Janet McDowell, Dennis Smith, Penny Carson, and Kent Smith-all of Ben's lineal descendants-as beneficiaries of the property upon her death. Irene died on July 1, 2005, at the age of 94.

Sherry was not related to Irene by blood or marriage. Her relationship with Irene began in 1996, before Inez died, when David Keathley, Sherry's then-boss, asked her to start taking Irene's mail to her. Over time, Sherry began doing additional things for Irene, such as taking her to the doctor or bank, filling out her checks for bills, and other general chores. Irene was dependent on other people to get her around or bring her things, as she did not drive and had to use a walker for ambulation. As Sherry's relationship with Irene grew, Irene became more distant and reclusive from family members and friends.

In the last four years of her life, Irene began to physically and mentally deteriorate. During this time, Sherry observed that Irene's arthritis was bothering her more and more. In addition, according to Sherry, Irene was losing weight, getting

317 S.W.3d 182
weaker, tiring more quickly, and had blurred vision, joint pain, back pain, and muscle weakness. Friends and members of Irene's family began to notice that she appeared confused, was unable to recognize people she had known for years, and exhibited paranoia. Starting somewhere around 2001, family members who had known Irene for years observed that Irene did not recognize them. Irene began complaining about members of her family throwing sewage on her house and about the smell created by the sewage. None of her family or friends ever observed any sewage or its smell at her house.

David Keathley-Ben's grandson-and his wife, Joyce, lived next door to Irene. Joyce visited Irene several times a week. During the summer of 2001, Joyce noticed that Irene was becoming confused, more distant from Joyce, and paranoid that family members were trying to kill her. Joyce testified that in 2001, Irene was not able to write checks for herself and, when she signed checks placed in front of her, she was oblivious as to their amount or purpose. That same year, Joyce started hearing complaints from Irene about a smell in her house. Irene complained to her that someone had dug up dead bodies in her yard. Joyce never smelled the odor Irene described to her or saw any dead bodies. According to Joyce, once Irene started to deteriorate mentally, it went fast. Joyce testified that Irene's vision also began to fail sometime around 2001. Her vision problems were so bad that it forced Irene to stop taking her usual walks because she might fall.

Starting around 2000 or 2001, Joyce began noticing that Sherry was over at Irene's house with much more frequency than in the past. Joyce testified that as Sherry's relationship with Irene grew, Irene's relationship with the rest of the family cooled. Joyce did not know why Sherry was paying so much attention to Irene, but it gave her cause for concern.

David, a licensed attorney, testified that from the year 2000 until her death, he saw Irene almost every day. Beginning in 2001 and thereafter, David noticed that Irene was having hallucinations and that she was vulnerable and paranoid. On numerous occasions, Irene spoke to David of her fear of being kicked out of the home, and did not understand that she owned the home. Irene's actions concerned David enough that, although he wanted to buy Irene's house and grant her a life estate to allay her fears, he would not do it without the approval of all members of the family because he believed that Irene was not competent to dispose of her property. David never saw any improvement in Irene's mental or physical faculties after 2001, but rather, he observed her continual deterioration.

According to David, Sherry started focusing attention on Irene after Inez died. David noticed that the closer Sherry became with Irene, the more strained Irene's relationships became with family members. He testified that, starting in 2002, Irene eventually became convinced that her family was trying to kill her. At one point after Sherry was going to Irene's house more and more often, David informed Sherry she did not have to do so much for Irene. Sherry responded to him, “It will be worth my time.”

On April 11, 2002, Sherry drove Irene to First Midwest State Bank, where Irene banked. A letter, typed by someone other than Irene but signed by her, was given to the bank requesting it to release to Sherry any and all information regarding Irene's accounts, safety deposit box, and certificates of deposit. Four days later, at least three of Irene's certificates of deposit were made payable on death to Sherry. Before this change, Sherry had no actual or potential

317 S.W.3d 183
interest in any of Irene's assets. In November 2002, Sherry's name was added to Irene's checking account. On November 20, 2002, Sherry's name was added to Irene's safety deposit box at the bank. After Sherry was granted such authority, no one other than Sherry ever accessed Irene's safety deposit box again.

Irene signed a durable power of attorney on December 9, 2002, naming Sherry as her attorney-in-fact. This she did after Sherry called an attorney to set up an appointment for Irene and drove her to the attorney's office. Also, starting in December 2002, Irene began periodically signing checks to Sherry in varying amounts, the largest of which was $2,300.00. On May 22, 2003, Irene executed a will leaving all of her property, regardless of its nature or location, to Sherry.

On September 22, 2003, by general warranty deed, Irene deeded the property to Sherry. Sherry drove Irene to the attorney's office to execute this deed. Thus, between April 2002 and September 2003, Irene had named Sherry as the beneficiary of almost all of her property. Irene died on July 1, 2005, leaving Sherry $39,292.60 in certificates of deposit, $43,000.00 in a checking account, and the property.

After Irene's death, Plaintiffs instituted this action to set aside the September 22, 2003, deed to the property from Irene to Sherry, claiming that it was procured by Sherry's exertion of undue influence over Irene. Following a bench trial, the trial court entered judgment setting aside the deed. This appeal followed.

Standard of Review 3

On appeal of an equitable action to set aside a deed, the trial court's judgment will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Landers v. Sgouros, 224 S.W.3d 651, 655 (Mo.App.2007). “When reviewing a court-tried case, we view all evidence and inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences.” Id. (quoting Ortmann v. Dace Homes, Inc., 86 S.W.3d 86, 88 (Mo.App.2002)). “We defer to the trial court's determinations as to the credibility of witnesses.” Id.


Defendants raise two points on appeal. Both are governed by the following principles.

“A deed procured by the exercise of undue influence is rendered invalid.” Pike v. Pike, 609 S.W.2d 397, 402 (Mo. banc 1980). “The test is whether the grantor's free agency and voluntary action were thwarted.” Id. “While neither direct testimony nor overt acts operating at the moment of the instrument's execution need be shown, the facts and circumstances from which undue influence can be inferred must be proved by clear, cogent and convincing evidence.” [ ] Id. at 402-03 (internal citations omitted) see Lee v. Hiler, 141 S.W.3d 517, 523 (Mo.App.2004).
“The cases recognize that undue influence is seldom susceptible of direct proof and that generally it must be deduced from the circumstances of the particular case.” Reeves v. Boone, 591 S.W.2d 118, 121 (Mo.App.1979). “It is necessary that the undue influence be operative at the time of execution of the
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deed sought to be set aside.” Robertson, 15 S.W.3d at 413.

Landers, 224 S.W.3d at 660. The existence of one particular circumstantial scenario has been recognized as raising a presumption of...

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