In The Estate Of Charles Michael Hock v. Vanniewaal

• Citation: 322 S.W.3d 574
• Decision Date: 20 September 2010
• Docket Number: No. SD 30100.,SD 30100.
• Parties: In the ESTATE OF Charles Michael HOCK, Deceased Susan Hanson, Petitioner-Respondent, v. Randy Dale Vanniewaal, Respondent-Appellant.
• Court: Missouri Court of Appeals

322 S.W.3d 574

In the ESTATE OF Charles Michael HOCK, Deceased

Susan Hanson, Petitioner-Respondent,

v.Randy Dale Vanniewaal, Respondent-Appellant.

No. SD 30100.

Missouri Court of Appeals,Southern District,Division Two.

Sept. 20, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Richard L. Schnake, Neale & Newman, L.L.P., Springfield, MO, for Appellant.

John Cowherd, Mount Vernon, MO, for Respondent.

GARY W. LYNCH, Presiding Judge.

Randy Dale VanNiewaal appeals the judgment of the Circuit Court of Barry County in favor of the estate of Charles Michael Hock, upon its finding that Randy exerted undue influence to derive a benefit from Charles. ¹ Finding no trial court error, we affirm.

Procedural Background

Charles died testate on July 1, 2007, at his home in Barry County at the age of sixty-four. He was survived by three daughters: Susan Hanson, who resided in California, and Julia Hock and Emily Hock, both of Chicago, Illinois. Pursuant to a will Charles executed two days before he die d, Charles's three daughters and Randy were named to share in the estate equally. Randy was appointed personal representative of the estate.

On August 27, 2007, Randy filed a claim against Charles's estate, requesting reimbursement in the amount of $8,277.84, which Randy claimed he paid for Charles's funeral expenses. In October 2007, Susan brought the underlying action for discovery of assets against Randy, in accordance with section 473.340, ² alleging certain assets should be included in Charles's estate, but were unlawfully obtained by Randy “by fraud and/or undue influence or at a time when [Charles] did [not] have sufficient mental capacity” to give said property to Randy. In part, Susan alleged that proceeds from two bank accounts owned by Charles were assets of the estate and had been adversely withheld or claimed by Randy.

In its judgment, the trial court found that Randy's exercise of undue influence caused certain bank accounts to be created in the joint names of Charles and Randy and further caused the balance of funds from Charles's individual account to be paid over to Randy and deposited into Randy's individual account and later spent. The trial court entered judgment in favor of the estate and against Randy in the amount of $46,265.52. The trial court also denied Randy's claim for reimbursement of Charles's funeral expenses because it found that the funds Randy used to pay this expense came from from one of the bank accounts that actually belonged to the estate.

Randy timely appealed.

Factual Background

After on-the-job knee and back injuries forced his retirement as a firefighter ³ in Chicago around 1995, Charles moved to the Eagle Rock area, where he purchased a home situated on several acres of lakefront property. Charles's three daughters visited during vacations and around holidays. Charles and his daughters called one another frequently.

Charles became friendly with Randy and his wife, Earleen, following the funeral of Charles's sister some time around 2000. Earleen was Charles's niece. At first, Randy and Earleen, who were from Iowa, would come to visit in the summer and stay about a week. Nearby his residence, Charles had a cabin or guest house where Randy and Earleen often stayed during their visits. Charles told his daughter Julia that Randy was his plumber, a guy who worked for him, and that once in a while during the summer Randy would come and do odd jobs around the house and fix the plumbing. Julia met Randy about two and a half years before her father's death. After January 2007, Julia often heard from her father that Randy was there for a visit, and Randy's visits became more frequent in the last few months of her father's life.

At the time of his death, Charles was the owner of a checking account and a money market account at Commerce Bank in Eagle Rock. The checking account was owned jointly by Charles and his close friend and caregiver, Cathryn Walker. Walker assisted Charles with paying his bills and signed Charles's personal checks after Charles sustained serious injuries and lost the use of his right hand following a fall and a lengthy hospitalization in February 2002. Walker continued to help Charles with payment of his bills until his death. On the date Charles die d, the checking account had a balance of approximately $9,400.00.

Two days following Charles's funeral, Randy contacted Walker and asked her for the funds in Charles's checking account. Randy told her he was going to pay Charles's bills and would open an account for Charles's daughters with what was left. Walker gave him a signed check, which he made payable in the amount of $9,400.00, leaving a balance of $135.58 in the checking account. Randy deposited $9,400.00 into an individual bank account in his name only on July 6, 2007. On December 10, 2007, Randy withdrew $5,500.00 from this account. Later, on January 6, 2008, Randy withdrew another $400.00. No account was established for the benefit or in the names of Charles's daughters.

The money market account was established on January 19, 2007, after Charles, transported and accompanied by Randy, visited his bank, closed a savings account he had co-owned with Walker, and deposited the funds from that account into the new account, naming Randy as co-owner. On the date of Charles's death, the balance in the money market account was approximately $48,643.36. On July 2, 2007, the day after Charles died, Randy withdrew $25,000.00 from this money market account. The next day, Randy withdrew $10,000.00. An additional $5,356.52 was withdrawn from the account by Randy on July 31, 2007. On August 1, 2007, a check for $8,277.84 made payable to Fohn Funeral Home was presented for payment from the money market account. Randy testified this was payment for Charles's funeral expenses. As of August 23, 2007, the remaining balance in the account was $15.24.

Additional facts will be set forth hereafter as necessary to discuss Randy's first point.

Standard of Review

Upon review of the judgment in a discovery of assets proceeding, the judgment will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Estate of Herbert v. Herbert, 152 S.W.3d 340, 344 (Mo.App.2004). Where there has been no request for findings and conclusions, it is presumed that the trial court's findings are in accordance with the judgment entered, and the judgment will be affirmed under any reasonable theory supported by the evidence. Id.

Discussion

In his first point, Randy claims that the trial court's finding that the creation of his co-ownership in the money market account was the result of his undue influence upon Charles is not supported by substantial evidence, in that, first, the testimony of the bank representative who assisted Charles on January 19, 2007, in opening the money market account, “established that [Charles] acted on his own, was not under [Randy's] influence, and understood the consequences of his action in re-titling the money market account [.]” Second, Randy further challenges the trial court's finding of undue influence, asserting that Charles's “actions were consistent with his testamentary intent” and that “neither [Randy's] closeness to [Charles] nor his presence during the banking transaction supports a finding of undue influence.”

“Undue influence itself is usually defined as ‘such overpersuasion, coercion, force, or deception as breaks the will power of the testator or grantor and puts in its stead the will of another.’ ” Duvall v. Brenizer, 818 S.W.2d 332, 335 (Mo.App.1991) (quoting Hamilton v. Steininger, 350 Mo. 698, 168 S.W.2d 59, 67 (Mo.1943)). “Also, in determining whether there is evidence of undue influence, the court does not have to find the testator or grantor to be of unsound mind, ... therefore, one may be unduly influenced while still mentally competent.” Id. (internal citations omitted).

A determination of whether undue influence was exercised requires a case-by-case analysis. In the Estate of Gross, 840 S.W.2d 253, 257 (Mo.App.1992). “ ‘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.’ ” Landers v. Sgouros, 224 S.W.3d 651, 660 (Mo.App.2007) (quoting Reeves v. Boone, 591 S.W.2d 118, 121 (Mo.App.1979)). “Undue influence is not proclaimed from the housetop and direct proof is difficult, if not impossible, to obtain.” Dobbins v. Hupp, 562 S.W.2d 736, 741 (Mo.App.1978). “ ‘Persons 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.’ ” Duerbusch v. Karas, 267 S.W.3d 700, 708 (Mo.App.2008) (quoting Estate of Gross, 840 S.W.2d at 257). “It is impossible to set forth a rigid formula of what facts must be established to make a submissible case of undue influence by circumstantial evidence.” Id.

Nevertheless, “[a] presumption of undue influence arises in discovery of assets cases where substantial evidence shows (1) a confidential and fiduciary relationship; (2) benefaction to the fiduciary; and (3) some additional evidence from which undue influence may be inferred.” Estate of Gross, 840 S.W.2d at 257. Once established, the presumption makes a prima facie case of undue influence, effectively shifting the burden to the fiduciary to rebut. Id.

In his first point, Randy does not challenge the evidentiary basis supporting that he had a fiduciary and confidential relationship with Charles or that he received a benefit from Charles-the first two prongs supporting the presumption of undue influence. Rather, Randy solely challenges the evidentiary support for the third prong of the undue influence presumption-the existence of some additional evidence from which...