Whitehill v. Whitehill, No. 27611 (Mo. App. 3/28/2007), 27611

CourtCourt of Appeal of Missouri (US)
Writing for the CourtRobert S. Barney
PartiesStephanie Whitehill, as Personal Representative of the Estate of Daran Whitehill, et al., Respondent v. Charles Whitehill, et al., Appellant.
Docket NumberNo. 27611,27611
Decision Date28 March 2007

Page 1

Stephanie Whitehill, as Personal Representative of the Estate of Daran Whitehill, et al., Respondent
Charles Whitehill, et al., Appellant.
No. 27611
Court of Appeals of Missouri, Southern District.
March 28, 2007

Appeal from the Circuit Court of McDonald County, Hon. John LePage.

Abe R. Paul, for Appellant.

Andrew Wood and Charles Buchanan, for Respondent.

Before: Garrison, J. and Lynch, J.


This litigation involves claims for the rights to certain annuity payments following the death of the annuitant, Daran Whitehill ("Daran").1 Appellant Charles Whitehill ("Charles"), Daran's brother, appeals the trial court's grant of summary judgment in favor of Respondent Stephanie Whitehill ("Stephanie"), in her capacity as personal representative of Daran's estate, following the trial court's determination that Daran's estate was entitled to the annuity payments at issue.2 Appellant now raises three points of trial court error, discussed below. We affirm.

The record reveals that on March 9, 2000, Daran's arm was severed by an industrial machine in a work-related accident. Daran and Stephanie made claims for personal injuries and loss of consortium against Continental Products Corporation ("the machine manufacturer"). On April 22, 2003, while the personal injury lawsuit was pending, Daran filed a petition to dissolve his marriage with Stephanie. The parties never dissolved their marriage.

Shortly thereafter, the personal injury lawsuit was settled. The "Settlement Agreement and Complete General Release" ("the Agreement") dated June 4, 2003, was signed by Daran and Stephanie as "Plaintiffs."3 Other pertinent parties included the machine manufacturer and the insurance company for the machine manufacturer ("the Insurers"). The Agreement made provisions for the disbursement of settlement funds and provided for the creation of an annuity. Paragraph 2.0 of the Agreement relating to "Payments" set out:

In consideration of the release and discharge set forth above, [the Insurers] . . . agree to pay to the individuals named below (`Payees') the following sums in the manner described below.

2.1 Payments due at the time of settlement are as follows

$1,150,000.00 payable to Daran and Stephanie . . . and their attorney . . .

Periodic Payments made according to the schedule as follows . . . $3,773.86 monthly for life, guaranteed for 240 payments, beginning on July 01, 2003, with the final guaranteed payment on June 01, 2023.

Paragraph 4.0 of the Agreement provided the provision relating to the designation of a beneficiary:

Any payments to be made after the death of any Payee pursuant to the terms of this Settlement Agreement shall be made to such person or entity as shall be designated in writing by Plaintiffs to the Insurers . . . If no person or entity is so designated by Plaintiffs, or if the person designated is not living at the time of the Payee's death, such payments shall be made to the estate of the Payee. No such designation, or any revocation thereof, shall be effective unless it is in writing and delivered to the Insurers . . . . The designation must be in form acceptable to the Insurers . . . before such payments are made.

(Italics added.)

The record also reveals that a certain "Annuitant's Information Questionnaire" ("the Questionnaire") had been sent to Daran prior to the signing of the June 4, 2003, Agreement. Daran executed the Questionnaire on May 19, 2003, and designated Charles as his "Primary Beneficiary" and his other brother, Randy Whitehill ("Randy"), as his "Contingent Beneficiary."4 The Questionnaire was signed only by Daran. It was not until after his death that Stephanie found out that Daran had executed the Questionnaire naming his brothers as primary and contingent beneficiaries in the event of his death.

Daran was killed in an automobile accident on January 13, 2004. As previously set out, he and Stephanie were still married at that time. Stephanie was appointed as the personal representative of Daran's estate at which time she discovered the beneficiary designation Daran had made on the Questionnaire. As a result, she filed this underlying action against Charles and others to determine the rights of the parties under the Agreement.5

On December 13, 2005, Stephanie filed her Motion for Summary Judgment in which she alleged the Agreement of June 4, 2003, provided that annuity payments would be made to beneficiaries named in writing to the Insurers or if no designation was made, "to the estate of the Payee." She argued there was no factual dispute that she and Daran did not designate a beneficiary per the terms of the Agreement. She also maintained the beneficiary designation made by Daran on the Questionnaire was ineffective to vary the terms of the Agreement. Accordingly, she asserted the periodic payments from the annuity should be made "to the estate of the Payee."

In his response to Stephanie's motion for summary judgment, Charles contended then, as he does now in this appeal, that "due to the terms of [a separate] settlement reached by the parties" on May 14, 2003, prior to the June 4, 2003, Agreement, "Stephanie . . . had no interest in the annuity for Daran . . . and it was within Daran['s] sole discretion as to whom to designate as beneficiary under terms of the annuity contract."6

On March 7, 2006, the trial court granted Stephanie's motion for summary judgment. The trial court found "the evidence is undisputed that [Stephanie and Daran] did not make any written designation of beneficiaries and that under the terms of the . . . Agreement . . . the annuity payment[s] . . . shall be paid to the Estate of Daran . . . ." This appeal by Charles followed.

Pursuant to Rule 74.04, to be entitled to summary judgment, the movant must show that: (1) there is no genuine dispute as to the material facts on which the movant is relying for summary judgment; and (2) based on those undisputed facts, the movant is entitled to judgment as a matter of law.7 A genuine issue exists, as to one of the material facts underlying the moving party's right to summary judgment, where the record contains competent evidence that demonstrates two plausible, but contradictory, accounts of the essential facts. See ITT Comm'l Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 382 (Mo. banc 1993). A genuine issue "implies that the issue, or dispute, must be a real and substantial one—one consisting not merely of conjecture, theory and possibilities."

Id. at 378.

"When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered." Id. at 376. "We accord the non-movant the benefit of all reasonable inferences from the record." Id. Since "the criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially," our review is essentially de novo. Id.

In his first of three points on appeal Charles maintains the trial court erred in granting Stephanie's motion for summary judgment "and declaring that the beneficiary designations of [Charles and Randy] be set aside because [the Agreement] was ambiguous in that [the Agreement] did not require that both [Daran and Stephanie] agree on the beneficiary designations." Charles asserts that while the Agreement defines "Plaintiffs" as being Stephanie and Daran the Agreement goes on to state that only Daran was entitled to "periodic payments." Charles maintains that to interpret the Agreement any other way "would lead to the absurd result that Daran . . . would be required to garner the consent of [Stephanie], who . . ." was seeking to become his ex-wife and "had no entitlement whatsoever to periodic payments under the [Agreement]." Accordingly, Charles essentially argues that in order to effectuate the true intention of the parties to the Agreement, the...

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