McMullin v. Borgers, s. 57105

CourtCourt of Appeal of Missouri (US)
Citation806 S.W.2d 724
Docket NumberNos. 57105,57146,s. 57105
PartiesCharles J. McMULLIN, Plaintiff-Appellant, v. Robert R. BORGERS, Defendant-Respondent.
Decision Date26 February 1991

Application to Transfer Denied May 3, 1991.

Charles J. McMullin, St. Louis, for plaintiff-appellant.

Ted Frank Frapolli, Dennis B. Mertz, St. Louis, for defendant-respondent.


This appeal was brought by plaintiff, an attorney-at-law, representing himself on appeal. Plaintiff's claims were based on an assignment to him from Dorothy Cornelison and involved a Mercantile Trust Company checking account which had been held jointly in the names of decedent, Joseph Gangloff, and Dorothy Cornelison, Gangloff's sister-in-law. In November 1981, while decedent was hospitalized and Mrs. Cornelison was out of the state, the account was closed and a new one opened, this time jointly in the names of decedent and Robert Borgers, defendant.

Plaintiff's counts III (undue influence), IV (fraud) and VIII (conspiracy) were presented to the jury. Count VII, a claim in equity for imposition of a constructive trust, was taken by the court with the evidence. On April 14, 1989, the jury returned a verdict in defendant's favor on the undue influence and fraud counts. The trial court had previously sustained defendant's motion for directed verdict at the close of plaintiff's case on the conspiracy count. The trial court did not rule on Count VII, the count in equity for imposition of a constructive trust.

Plaintiff filed a motion for new trial or, in the alternative, for judgment notwithstanding the verdicts on May 1, 1989. The motion was overruled on July 27, 1989. Plaintiff's appeal was filed August 1, 1989.

Defendant filed a cross-appeal based on the dismissal of his counterclaim for abuse of process. On April 21, 1983, the trial court sustained plaintiff's motion to dismiss the counterclaim for failure to state a cause of action for which relief could be granted. Defendant then filed his first amended counterclaim. It was dismissed on March 9, 1984. On this court's own motion, defendant's cross-appeal was consolidated with plaintiff's appeal.

Plaintiff has filed a motion to dismiss defendant's notice of appeal which we have taken with the case. Plaintiff asserts that defendant cannot raise his counterclaim by reason of res judicata, waiver, laches and estoppel.

Defendant's counterclaim was raised at the time plaintiff's first petition was filed. The parties went to trial, but the jury was unable to reach a verdict and a mistrial was declared. There was no final judgment. 1

Rule 81.06 (Repealed) is applicable here because the dismissal order was entered in 1984. The trial court held a separate hearing on defendant's counterclaim without a jury. The question for us is whether the counterclaim arose out of the same transactions, occurrences or subject matter as the other claims. If so, "the judgment entered shall not be deemed a final judgment for purposes of appeal ... unless specifically so designated by the court in the judgment entered." Rule 81.06 (Repealed).

We have reviewed plaintiff's petition and defendant's counterclaim. All claims arose out of the same set of facts. The trial court did not designate the dismissal as final. Defendant is, therefore, not barred from filing his cross-appeal. Plaintiff's motion to strike defendant's notice of appeal is denied.


Decedent, an unmarried person, died on July 26, 1982 at the age of 83. He had been employed as a railroad clerk for many years, but had amassed an estate worth over $1,000,000.00 through stock market transactions. Decedent was a sophisticated investor. He initiated his own transactions and made his own decisions, even though he retained a stock broker.

Defendant and decedent met in 1953. They kept in touch through the years, primarily through defendant's aunt and uncle. After 1973, defendant began taking care of some matters, both business and personal, for decedent.

Decedent prepared his last will and testament on October 19, 1981. 2 It provided that the residue of the estate would be divided as follows:

To Dorothy Cornelison, my sister-in-law, 10 percent. To Claudette Gangloff, my niece, 29 percent. To Charles Gangloff, my nephew, 30%. To Ingrid Cheryl Gangloff, my niece, 11 percent. Phyllis Weber, my cousin, 2 percent. Robert Borgers, my friend, 15 percent. Marie Eckert, my faithful friend, 3 percent. 3

Decedent entered the hospital in October 1981. Defendant testified that, during that time, decedent decided that defendant's name should be added to the checking account at Mercantile. Defendant attempted to make the change with a power of attorney, but was told by bank personnel that it could not be changed in that manner. Defendant then took the signature cards to decedent and returned them to the bank, which had the effect of opening a new account. Decedent closed out the old account by writing a check payable to defendant for the total amount in the account. That money was deposited in the new account. The result was that Dorothy Cornelison's name was removed and defendant's name added as joint depositor with decedent. After that, defendant would pay decedent's bills with the money from the joint account.

Plaintiff presented evidence suggesting that decedent was incompetent at the time Dorothy Cornelison's name was removed from the bank account. He also attempted to show that defendant relied on a confidential relationship with decedent in order to defraud Mrs. Cornelison out of the remains of the bank account.

Plaintiff and defendant have presented us with a lengthy and disorganized record on appeal. Plaintiff raises eighteen points on his appeal, and defendant presents us with two others on the cross-appeal. There are two volumes of transcript and five separate legal files. Many of plaintiff's points are repetitious. In addition, some points are in violation of Rule 84.04. Respondent, on the other hand, failed to respond to many of plaintiff's points. There was very little applicable law presented in either brief.

We will not dismiss the appeal in its entirety for violations of Rule 84.04 because we intend for this litigation to come to an end. We will, however, consider the points in what we consider is the most logical manner.


Plaintiff's first and third points both argue that the trial court instructed the jury to consider the evidence pursuant to a higher burden of proof than is required. Plaintiff did not include the objectionable instructions in the argument portion of his brief pursuant to Rule 84.04(e). He argues that it was unnecessary for him to do so because the instructions were incorporated by reference and attached as an addendum to his brief.

With the addendum plaintiff's brief exceeds the page limitation set out in Rule 84.04(i). In addition, Rule 84.04(e) clearly states that, "[i]f a point relates to the giving, refusal or modification of an instruction such instruction shall be set forth in full in the argument portion of the brief." (Emphasis supplied). Rule 84.04 is to be strictly enforced. East v. Landmark Central & Trust Company, 585 S.W.2d 222, 225 (Mo.App.1979). By not placing the instructions in the argument portion of his brief plaintiff has failed to preserve his points on appeal. McKee v. Wilmarth, 771 S.W.2d 955, 957 (Mo.App.1989). Since the instructions were included in the brief as an addendum, we will review the points for plain error pursuant to Rule 84.13(c).

Plaintiff argues that the trial court should not have read Instruction No. 4 to the jury but, instead, should have given plaintiff's Instruction C. Instruction No. 4, MAI-3d 3.04 (modified), reads as follows:

The burden is upon Plaintiff to cause you to believe by clear and convincing evidence that the Defendant by undue influence caused the transfer of funds referred to in Instruction No. 5. In determining whether or not you believe any such proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. If the evidence in the case does not cause you to believe a particular proposition submitted, then you cannot return a verdict requiring belief of that proposition.

Plaintiff's Instruction C, MAI-3d 3.01, reads as follows:

In these instructions, you are told that your verdict depends on whether or not you believe certain propositions of fact submitted to you. The burden of causing you to believe a proposition of fact is upon the party who relies upon that proposition. In determining whether or not you believe any such proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. If the evidence in the case does not cause you to believe a particular proposition submitted, then you cannot return a verdict requiring belief of that proposition.

Plaintiff argues that Instruction No. 4 placed a radically higher burden of proof upon him than is required by the authorities. We disagree.

Plaintiff's petition asserted causes of action of fraud and undue influence in transferring the Mercantile Bank account. By pleading such, plaintiff must prove fraud or undue influence by clear, cogent and convincing evidence. Barrett v. Flynn, 728 S.W.2d 288, 291 (Mo.App.1987). See also, Lesh v. Lesh, 718 S.W.2d 529, 532 (Mo.App.1986); Daniels v. Champion, 592 S.W.2d 869, 869 (Mo.App.1979).

Plaintiff argues these cases are inapplicable because they were court tried and no instructions were given. This argument is specious. Plaintiff is attempting to convince us that the burden of proof in an action will change simply because a jury is present. Instructions are given to inform the jury about the applicable law; instructions are unnecessary in a court tried action because the trial court knows the law. The law is the same in either case.

Plaintiff also argues that the...

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