Whisenand v. Fatino, SD 37110

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGARY W. LYNCH, C.J.
Citation642 S.W.3d 768
Parties In the Matter of Gerald E. WHISENAND, Rachelle D. Franzeskos, Appellant, Russell D. Whisenand, Respondent, v. Reggie FATINO and Tracy Whisenand, Respondents.
Docket NumberSD 37110
Decision Date28 March 2022

642 S.W.3d 768

In the Matter of Gerald E. WHISENAND, Rachelle D. Franzeskos, Appellant,

Russell D. Whisenand,1 Respondent,
v.
Reggie FATINO and Tracy Whisenand, Respondents.

No. SD 37110

Missouri Court of Appeals, Southern District, Division Two.

FILED: March 28, 2022


Appellant's attorney: Donald M. Brown, Springfield.

Respondent Reggie Fatino's attorney: Christopher Benjamin.

GARY W. LYNCH, C.J.

Rachelle Franzeskos ("Appellant") appeals the circuit court's judgment on her petition, which she filed along with Russell Whisenand (collectively "Petitioners"). The petition contained a single fraud count claiming that Reggie Fatino and Tracy Whisenand (collectively "Respondents") were involved in the forgery of the grantor's signature on a beneficiary deed, thereby rendering the deed void under section 461.054.2 The circuit court's judgment concluded that Petitioners failed to prove the grantor's signature on the beneficiary deed was forged. Appellant raises three points on appeal, all of which are premised on whether the grantor's acknowledgment of the beneficiary deed or the certificate of acknowledgment on the deed conformed with certain statutory requirements. Because the challenges to the validity of the beneficiary deed raised in Appellant's points were not alleged in the petition or otherwise presented to or decided by the trial court, they are not preserved for appellate review. We, therefore, affirm the trial court's judgment.

Factual and Procedural Background

The petition contains a single count denominated, "Disqualification of beneficiary designation due to fraud[.]" Petitioners’ allegations in support of this count generally claim that the parties are siblings, either by blood or marriage, and are the children of Gerald Whisenand (alternatively referred to as "Grantor" or "Decedent"); that the beneficiary deed, dated July 19, 2019, and recorded July 22, 2019, purports to convey to Respondents, upon Grantor's death, certain real property that was owned by Grantor; that Grantor was infirm and died on July 23, 2019, at the age of 77; that, based upon information and belief, Grantor's signature on the beneficiary deed was forged; and, consequently, the beneficiary deed is void under section 461.054.

As relevant here, the petition contained no allegations related to Grantor's acknowledgment of the beneficiary deed and contained only a single allegation related to the certificate of acknowledgement on the beneficiary deed. That allegation states, "[m]oreover, the notary acknowledgment on the beneficiary deed recorded at Book 2019R- Page 1090BD does not contain a date upon which Decedent allegedly personally appeared in front of the notary public."

A bench trial on the petition followed. The evidence consisted of testimony and exhibits from Sonia Kennedy (the notary public who filled out and made the certificate of acknowledgment on the beneficiary deed), Petitioners, and Fatino.

642 S.W.3d 771

The only relevant evidence in this appeal concerns Kennedy's certificate of acknowledgment on the beneficiary deed. The evidence adduced regarding that issue gave rise to and supports the following findings of fact made by the trial court in its judgment:

12. On July 22nd, 2019, Tracy Whisenand contacted Ms. Fatino and told her that Gerald Whisenand was ready to sign the deed.

13. During that conversation, Tracy Whisenand asked Ms. Fatino to find a notary for the deed.

14. Later that same morning, Ms. Fatino contacted Sonya Kennedy, a notary public, and Ms. Kennedy agreed to notarize Gerald Whisenand's signature.

15. Later that same day, during a separate conversation, Ms. Kennedy spoke with Gerald Whisenand.

16. Ms. Kennedy was familiar with Gerald Whisenand, having known him for twenty-eight years, and she knew him to have a distinct voice. Ms. Kennedy is certain she spoke with Gerald Whisenand on the phone that day.

17. Gerald Whisenand told Ms. Kennedy he needed to notarize some papers relating to his farm.

18. Gerald Whisenand further told her he appreciated that she was willing to notarize the document without his presence because he was in poor health and could not travel.

19. Gerald Whisenand assured Ms. Kennedy he would sign the document before he sent it to her.

20. Ms. Kennedy testified, being familiar with Gerald Whisenand, that he sounded normal, coherent and did not sound confused.

21. Ms. Kennedy further testified, in her deposition, that Gerald Whisenand said nothing out of the ordinary and was able to communicate verbally. Ms. Kennedy did not have trouble understanding Gerald Whisenand and Mr. Whisenand did not appear to have any trouble understanding her.

22. On July 22, 2019, within an hour of their conversation, Tracy Whisenand, Gerald's son, brought the signed beneficiary deed and a copy of Gerald's driver's license.

23. Ms. Kennedy compared a signature on Gerald's driver's license with the signature
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