Riegel v. Jungerman
| Decision Date | 25 May 2021 |
| Docket Number | WD 84048 |
| Citation | 626 S.W.3d 300 |
| Court | Missouri Court of Appeals |
| Parties | Emily RIEGEL, Allan Pickert and Joann Pickert, Respondents, v. David G. JUNGERMAN, AS TRUSTEE or Co-Trustee OF the JUNGERMAN FAMILY IRREVOCABLE TRUST, Appellant. |
Julie J. Gibson, for Respondents.
Kate McKinney, Kansas City, for Appellant.
Division One: Anthony Rex Gabbert, Presiding Judge, Edward R. Ardini, Jr., Judge and Thomas N. Chapman, Judge
David Jungerman appeals from a judgment1 in a wrongful death action arising from the killing of attorney Thomas Pickert. Pickert's wife and parents ("Plaintiffs") initiated this action in the Circuit Court of Jackson County, alleging that Jungerman shot and killed Pickert after Pickert had obtained a multi-million-dollar judgment for his client against Jungerman, and that Jungerman conspired with other defendants to hide and transfer assets to defraud creditors, including Plaintiffs. The other defendants named were Jungerman in his capacity as trustee and/or co-trustee of the Jungerman Family Irrevocable Trust ("Trust"); Jungerman's daughter, Angelia Buesing, individually and in her capacity as trustee and/or co-trustee of the Trust; Jungerman Farm Corporation ("Farm Corporation"); and Baby-Tenda Corporation ("Baby-Tenda").
A settlement agreement was reached between Plaintiffs and all defendants except Jungerman and Baby-Tenda, and the settling parties sought court approval of the partial settlement agreement. Jungerman objected to the settlement on the ground that, in his capacity as trustee, he was entitled to participate in settlement negotiations and approve any settlement involving the Trust or Trust assets, which he had not been permitted to do. The trial court overruled his objection, finding that Jungerman had resigned as trustee in 2018—prior to the initiation of this lawsuit—and that Buesing was the sole trustee with authority to settle claims on behalf of the Trust. As such, the trial court found that Jungerman lacked standing to challenge the partial settlement agreement. The trial court also found that Jungerman's objection to the settlement was untimely pursuant to section 515.610, RSMo.2 Thereafter, the trial court entered its judgment approving the partial settlement agreement, and it is from that judgment Jungerman appeals in his capacity as the alleged trustee of the Trust.
Jungerman asserts the trial court erred in finding he lacked standing to challenge the partial settlement agreement and did not timely object to the settlement. We do not reach the merits of Jungerman's claims of error, however, because Jungerman lacks standing to bring this appeal and thus we are required to dismiss it.
In 2012, Jungerman shot and seriously injured Jeffery Harris. Harris retained Pickert to represent him in a personal injury lawsuit against Jungerman. The jury in that lawsuit returned a $5.75 million verdict in favor of Harris. The trial court entered judgment on the jury verdict, and that judgment was affirmed on appeal. See Harris v. Jungerman , 560 S.W.3d 549, 563 (Mo. App. W.D. 2018). While the appeal was pending, Pickert began proceedings against Jungerman to execute on his assets to satisfy the Harris judgment. On October 24, 2017, Jungerman was served with documents related to those execution efforts.
On October 25, 2017, Pickert was shot and killed in front of his home after walking his children to school. Jungerman has been charged with first-degree murder and armed criminal action for causing Pickert's death. That criminal case remains pending.
On May 17, 2018, Plaintiffs initiated this lawsuit. In April 2019, Plaintiffs filed a First Amended Wrongful Death Petition for Damages and to Set Aside Fraudulent Conveyances, asserting wrongful death claims for battery and negligence and a claim of "fraudulent conveyances and civil conspiracy to commit fraudulent conveyances as part of a scheme to prevent [Pickert] and Plaintiffs from collecting a judgment lien." The petition alleges that, shortly after the jury's verdict in the Harris case was announced, Jungerman approached Pickert in a threatening manner in the courtroom and told him: The petition further alleges that Jungerman shot and killed Pickert on October 25, 2017, and thereafter admitted that he "killed a lawyer with a gun" and that he did it "because a lawyer stole his money" and "caused [him] a lot of problems."
Relating to the fraudulent transfer claim, the petition contains detailed allegations of property transfers by Jungerman and Buesing beginning in August 2017—shortly after entry of the Harris judgment—and continuing after Pickert's death, which were alleged to be part of "a scheme to fraudulently transfer assets to hinder, delay, and defraud" present and/or future creditors, including Plaintiffs. By way of example, the petition alleges that on August 24, 2017, Jungerman made a $900,000 transfer into the Trust and a $1.5 million deposit into a bank account in the name of the Farm Corporation, the following day he transferred his home and other property to Buesing, and approximately two months later, Jungerman withdrew $2,100,000 from the Farm Corporation account and $900,000 from the Trust account in the form of cashier's checks made payable to a title company. The petition alleges that the Trust, the Farm Corporation, and Baby-Tenda3 are alter egos of Jungerman, and that, as a result, "any assets held by and/or fraudulently transferred to and/or from [the corporations or Trust] constitute a transfer by Jungerman himself such that the assets of these alter egos are available to the extent necessary to satisfy any judgment entered in favor of Plaintiffs herein." The petition further alleges that Jungerman, Buesing, the corporations, and the Trust were acting as a joint venture at all relevant times and thus the corporations, Trust, and Buesing are vicariously liable for Jungerman's actions. Plaintiffs requested the trial court void and/or set aside all fraudulent transfers.
Plaintiffs also requested the trial court appoint a receiver "to take charge and manage Defendants’ assets," including bank accounts, the Trust, the Farm Corporation, the assets of Baby-Tenda, and "any real property owned or managed by any of the Defendants." Over Jungerman's objection, the trial court appointed a receiver "to take charge over all of the Defendants’ property and assets," finding that "the facts presented show the existence of conduct on the part of Defendants which constitutes a great emergency and places this matter in an urgent posture sufficient to require and justify the appointment of a receiver immediately to take charge of, manage, preserve, and protect the assets of the Defendants." Jungerman filed a motion to revoke the order appointing a receiver, which was overruled by the trial court. The trial court's denial of Jungerman's request to revoke the order was affirmed on appeal. See Riegel v. Jungerman , 597 S.W.3d 695, 708-09 (Mo. App. W.D. 2019).
The trial court entered an order establishing November 15, 2019 as the "Claim Bar Date"—i.e., the date by which any creditors seeking to participate in the distribution of the receivership estate must submit their claims to the receiver. See § 515.615.5 (). Plaintiffs filed their " on October 17, 2019, advising that they "are unsecured creditors of the Receivership Estate and have asserted their claims in the First Amended Wrongful Death Petition for Damages and to Set Aside Fraudulent Conveyances in this Court." Thereafter, Jungerman, individually, filed an objection to Plaintiffs’ claim pursuant to section 515.620.1, which provides that "[a]t any time prior to the entry of an order approving the general receiver's final report, the receiver or any party in interest may file with the court an objection to a claim[.]"
Earlier in 2019, the parties had begun settlement discussions. On October 18, 2019, Plaintiffs filed a notice of hearing advising that they, Buesing—individually and as trustee of the Trust—and the Farm Corporation ("settling parties") would be seeking court approval of a Confidential Partial Wrongful Death Settlement Agreement on November 21, 2019. The notice of hearing stated it was being "provided in accordance with R.S.Mo. § 515.610."4
On November 13, 2019, Jungerman filed a motion "in his alleged capacity as Trustee or Co-Trustee" of the Trust to continue the settlement hearing. He asserted that, as trustee or co-trustee, he was "entitled, and obligated, to participate in settlement negotiations regarding the Trust and/or Trust assets" and "approve any settlement involving the Trust or Trust assets." He stated that he had "not agreed to any settlement, nor ha[d] he seen the Agreement" and requested "time and an opportunity to conduct discovery prior to any hearing on the proposed Agreement."
The settling parties filed an opposition to Jungerman's motion to continue, arguing that his objection was untimely pursuant to section 515.6105 and that he lacked standing to object to the settlement in that he was no longer trustee or co-trustee of the Trust. Regarding the latter argument, the settling parties referenced (and attached to their opposition) a document executed by Jungerman and Buesing on April 30, 2018, in which Jungerman purported to appoint Buesing as successor trustee and resign as trustee, and Buesing accepted the appointment. The document was notarized by the Barton County Sheriff.6
The trial court denied Jungerman's request to continue the November 21, 2019 settlement hearing; however, it ordered that the hearing "shall be...
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