Wilson v. Trusley, WD83111

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKaren King Mitchell, Judge
PartiesJERRY L. WILSON, Appellant-Respondent, v. WILDA L. TRUSLEY, Respondent-Appellant.
Docket NumberC/w WD83137,WD83111
Decision Date04 May 2021

JERRY L. WILSON, Appellant-Respondent,
WILDA L. TRUSLEY, Respondent-Appellant.

C/w WD83137


May 4, 2021

Appeal from the Circuit Court of Miller County, Missouri
The Honorable Jon A. Kaltenbronn, Judge

Before Division Two: Mark D. Pfeiffer, Presiding Judge, and Alok Ahuja and Karen King Mitchell, Judges

This case centers on late-in-life changes Mona E. Wilson made to how property, both real and personal, would be divided upon her death between her son Jerry Wilson and her daughter Wilda Trusley.1 Jerry contends that he and Mona formed a business partnership in 1986 or 1987 and certain partnership assets, including 158 acres of farmland and jointly held bank accounts and certificates of deposits (CDs), passed to Jerry as the surviving partner upon Mona's death. But, before her death in 2017, Mona deeded the 158 acres to Wilda and gifted the jointly held bank

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accounts and CDs to her. Jerry claims that Mona was mentally incapacitated when she made the changes benefiting Wilda and that the changes were the result of undue influence exerted by Wilda. Following a four-day bench trial, the court awarded the 158 acres to Jerry and the jointly held bank accounts and CDs to Wilda. Wilda and Jerry both appealed the trial court's judgment.2

Wilda raises four points on appeal. She argues that the trial court erred in (1) finding that Mona and Jerry had a business partnership; (2) finding that Mona breached a fiduciary duty to Jerry when she deeded the 158 acres to Wilda; (3) finding that the property Mona deeded to Wilda belonged to the partnership; and (4) admitting evidence in violation of the statute of frauds.3 Jerry raises five points on appeal. He argues that the trial court erred in: (1) finding that Wilda did not exercise undue influence over Mona because the court misapplied the law; (2) finding that Mona was competent to make the property distribution changes because that finding was against the weight of the evidence; (3) finding that the jointly held bank accounts and CDs were not partnership assets because that finding misapplied the law; (4) denying his request for attorney's fees and costs; and (5) denying his request for an accounting.

We affirm the trial court's judgment in all respects, with the exception of the trial court's denial of Jerry's petition for an accounting. On that issue alone, we reverse and remand for further proceedings consistent with this opinion.

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For many years, Mona and her husband Leman Wilson owned and operated a farm in Miller County, Missouri. After Leman's death in 1986, Mona needed help running the farm, so she made an offer to Jerry: if he would quit his full-time job as a heavy equipment operator and return to work on the farm, she would split the profits with him equally, and she would leave him approximately 158 acres of the farm upon her death. Jerry accepted Mona's offer, and the two orally agreed to form a partnership to operate the farm for profit. The business later expanded to include rental housing and a land lease for a cellular telephone tower.4 In 1991, Mona executed a Durable Power of Attorney naming Jerry as her attorney in fact, but Jerry never used the Power of Attorney.

For the next 29 years, Jerry and his wife Jenny Wilson worked on the farm with Mona. Mona and Jerry divided equally all income from the farming operations, the rental houses, and the cell tower lease, and they deducted the expenses related to their businesses on their individual tax returns in roughly equal amounts.5 Also, during the course of their business relationship, Mona opened several bank accounts and CDs identifying Jerry as a joint owner; neither Jerry nor Jenny contributed funds to those accounts or CDs. On April 22, 2004, consistent with her oral partnership agreement with Jerry, Mona executed two beneficiary deeds for the 158 acres; on the same day, she executed a beneficiary deed in favor of Wilda for a different 40 acres.

Then, in April 2015, Mona began to transfer funds in the bank accounts and CDs she jointly held with Jerry into accounts that were held by Mona with Wilda designated as a joint owner or

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beneficiary. On April 1, 2015, Mona closed a safe deposit box she had held jointly with Jerry and Jenny and opened a safe deposit box jointly with Wilda. On April 8, 2015, Mona revoked her 1991 Durable Power of Attorney in favor of Jerry and executed a new one naming Wilda as Mona's attorney in fact.6 On April 15, 2015, Mona was examined by her family physician, Dr. Griswold, who noted "mild cognitive decline" but found that Mona was competent to make decisions at that time. On April 23, 2015, Mona executed a quitclaim deed for the 158 acres in favor of Wilda.

On June 9, 2015, Jerry sued Mona for breach of fiduciary duty of loyalty and good faith and breach of contract. Ten days later, Jerry filed a petition for appointment of a guardian of the person and conservator of Mona's estate. Kenneth Oswald was appointed to represent Mona in the guardianship/conservatorship proceeding.7 The probate court ordered a psychological evaluation of Mona and appointed Dr. Jennifer Stevens, a clinical psychologist, to perform the evaluation. Dr. Stevens examined Mona on August 25, 2015, and issued a report concluding, "At this point, Mrs. Wilson is a competent individual, able to manage her own money, take care of most routine daily activities, and shows no clinical signs of dementia or unordinary cognitive decline. She does not meet the diagnostic criteria for any mental diagnosis."8 Dr. Stevens did not testify at trial in this case.

Also in August 2015, Mona moved in with Wilda. Mona suffered a mild heart attack and was hospitalized in January 2016. On February 2, 2016, a doctor noted that Mona had baseline dementia. On March 3, 2016, Mona was seen by Dr. Glenna Burton, M.D. and Ph.D., with the Center for Cognitive Disorders. Dr. Burton diagnosed Mona with moderate to severe "Dementia, NOS[,] presumably Alzheimer's Disease," and admitted her to the hospital for treatment of

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paranoid delusions and dementia. Following her hospital stay, Mona was discharged to be followed as an outpatient with the recommendation that she continue her current medication. At some point thereafter, Wilda used her Power of Attorney to have Mona admitted to a long-term care facility.

On June 13, 2016, Jerry filed a first amended petition adding Jenny as a plaintiff and Wilda as a defendant and adding four claims—tortious interference with a business relationship against Wilda, petition to set aside deeds, petition to set aside gifts, and petition for an accounting. On August 24, 2016, Jerry and Jenny filed a second amended petition making minor changes. Mona died on March 26, 2017. Thereafter, Jerry and Jenny filed their third amended petition, the operative petition here, to substitute Mona's estate as a party defendant. Wilda filed a counterclaim.

A bench trial was conducted over four days in 2018. As to the issues properly raised on appeal, Jerry testified that he filed the petition for guardianship and conservatorship due to concerns about Mona's ability to care for herself. She would turn her dirty clothes inside out and keep wearing them, she claimed to talk to her deceased mother and husband, she "blew up" two microwave ovens, she could not program her television or keep her checkbook in order, she would hit her house when mowing her lawn, and she was a bad driver. When asked for evidence of Wilda's influence over Mona, Jerry testified that he once overheard Wilda telling Mona what to say when Mona called Jerry to request her portion of the cell tower rent. He also described how he used to mow Mona's lawn until Mona told him that she did not want him to do so anymore; then Wilda started mowing Mona's lawn. Those were the only instances of "undue influence" Jerry could recall.9

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Jenny testified that she started noticing changes in Mona's actions and character in 2012. Mona no longer understood checks or electronics; she began asking Jenny to sign checks for her, and Jenny tried to teach Mona how to use her microwave, but Mona did not understand. In December 2012, Mona wrecked her truck; she did not have enough money to pay for repairs, so Jenny paid and then Mona reimbursed her, but Mona later accused Jenny of stealing the reimbursement money. In late 2014, Mona became incontinent. She would wear her clothes repeatedly until she stained them, and then she would turn them inside out and keep wearing them; she would not bathe. And, in late 2014 and early 2015, when grocery shopping, Mona would stare at items on the shelves and buy the same items at multiple stores.

Dr. Eric Lenze, a board-certified geriatric psychiatrist who reviewed Mona's medical records and performed his own examination of her on September 16, 2016, opined that, to a reasonable degree of medical certainty, she lacked the ability to perform executive functioning in April 2015. Dr. Lenze testified that Mona was severely confused and paranoid when he examined her in 2016. "You aren't fine in 2015 and then severely confused in 2016. There are exceptions to this, but all of those exceptions can be safely ruled out in Mona's case."10 Dr. Lenze also reviewed the evaluation performed by Dr. Stevens in August 2015 and concluded that there was ample evidence of dementia at that time. Dr. Lenze testified that Dr. Stevens's evaluation and conclusions were inaccurate.

Amy Moffett, who had been an investigator with the Missouri Department of Health and Senior Services, testified that she investigated three hotline calls regarding Mona. The first call,

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made April 16, 2015, alleged emotional and psychological abuse of Mona by Jerry, and the second call, made April 22, 2015, alleged emotional and psychological abuse as well as financial exploitation of Mona by Jerry. Moffett met with Mona on April 23, 2015. Moffett testified that Mona spoke coherently...

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