Wiss v. Spitzmiller

• Decision Date: 13 March 2014
• Docket Number: No. SD 32758.,SD 32758.
• Parties: Ellen A. WISS and O. Elizabeth Corbett, Plaintiffs–Respondents, v. Gene W. SPITZMILLER, Defendant/Trustee/Beneficiary–Appellant, and Sharon E. Gunn, Defendant/Trustee/Beneficiary–Respondent, and Linda J. Bridger, Defendant/Beneficiary–Respondent.
• Court: Missouri Court of Appeals

425 S.W.3d 157

Ellen A. WISS and O. Elizabeth Corbett, Plaintiffs–Respondents,

v.Gene W. SPITZMILLER, Defendant/Trustee/Beneficiary–Appellant,andSharon E. Gunn, Defendant/Trustee/Beneficiary–Respondent,

and

Linda J. Bridger, Defendant/Beneficiary–Respondent.

No. SD 32758.

Missouri Court of Appeals,

Southern District,

Division One.

March 13, 2014.

Gene W. Spitzmiller, Attorney/Appellant, Sikeston, MO, pro se.

Kevin B. Spaeth, Ellen A. Wiss, O. Elizabeth Corbett, Cape Girardeau, MO, for Respondents.

DON E. BURRELL, J.

Gene W. Spitzmiller (“Appellant”) appeals the “Amended Judgment” that removed him and Sharon E. Gunn (collectively, “Trustees”) as trustees of the Norman L. Spitzmiller and Betty Jo Spitzmiller Revocable Trust (“the Trust”). ¹

In three points relied on, Appellant claims: 1) the trial court lacked “subject matter jurisdiction” to enter the Amended Judgment “after the time for modification [of the original judgment] had elapsed”; 2) Plaintiffs failed to state a claim for the removal of Trustees; and 3) there was no substantial evidence supporting the Amended Judgment.

Because the Amended Judgment was entered after the expiration of the time period during which the trial court retained the ability to amend its original judgment, we remand the matter and direct the trial court to vacate the Amended Judgment.

Facts and Procedural Background

On August 29, 2011, Ellen A. Wiss and O. Elizabeth Corbett (“Plaintiffs”) filed a

“Petition for Removal of Trustee” which alleged that Plaintiffs had repeatedly requested of [Trustees] a report of the trust property, liabilities, receipts, disbursements, inclusive of the source and amount of [Trustees'] compensation, a listing of trust assets, [and] respective market values (hereinafter generally referred to as “Accounting”) and other than supplying copies of trust documents, several bank statements and miscellaneous email, [Trustees] have failed and continue to fail to provide same.

Plaintiffs specifically averred that they had “objected to the failure to conclude the Home Sale” involving “a residential home owned by the [Trust]” and that the Trust had loaned Ms. Bridger and her husband $260,000 secured by a promissory note (“the Bridger Note”) without providing an accounting for it.

The petition claimed that Trustees had violated specific Missouri statutes governing the administration of trusts and asked

that the court remove [Trustees] pursuant to Section 456.10–1001[.2](7) [;] that the court appoint a special fiduciary to take possession of the trust property and administer the trust pursuant to Section 456.10–1001[.2](5); to [sic] perform the duties of trustee pursuant to Section 456.10–1001[.2](1); to provide the Accounting pursuant to Section 456.10–1001[.2](4); to award Plaintiffs their attorneys fees pursuant to Section 456.10–1004 and for such other and further relief as to the court deems mete and proper in the circumstances.²

In August 2012, the trial court granted a motion for continuance filed by Trustees on “the condition that all parties enter into mediation[.]” On August 23, 2012, the parties entered into a written settlement agreement (“Settlement”) which stated that it “cover[ed] all issues pending in the current litigation[,]” and the trial court scheduled a September 19th hearing for a potential approval of Settlement.

Prior to that hearing date, Plaintiffs filed a “Motion Objecting to Settlement or in the Alternative to Set Same Aside” based on alleged deficiencies in an accounting Trustees had provided. The trial court held a hearing on the motion and the reasonableness of Settlement on September 13th. During the hearing, Plaintiffs' counsel argued that it “was a fair settlement” but he did not “feel like it's going to ever be complied with.” Plaintiffs' counsel requested that if the trial court was “inclined to ... approve [Settlement,]” then Plaintiffs' September 2012 motion should “be considered a motion to enforce” and that the order to enforce should have “teeth in it[.]” Plaintiffs' counsel argued that the mediator, Judge John Ringer (“Mediator”), should “stay involved in it to settle out the small issues that may come up subject to a party bringing [the trial court] back into it[.]” Trustees' counsel stated that she did not “object to that.”

The trial court denied Plaintiffs' motion to set aside Settlement, found Settlement reasonable, and approved it. As requested, the trial court then treated Plaintiffs' “objection to [Settlement] as a motion to enforce the terms of [Settlement]” and stated that the “details of [Settlement] need to be enforced .... with teeth, obviously.”

That same date, September 13, 2012, the trial court entered a judgment (“the original judgment”) that incorporated Settlement by reference. Settlement required the parties to perform certain acts, including that Appellant, “no later than August 31, 2012 provide all parties with accounting spreadsheets, commencing on date of April 15, 2010, to current date.”

Additional Settlement provisions relevant to this appeal provided:

3. Trust will make final distribution, less a reserve for accounting fee for final Trust tax return, no later than 15 days after completion and delivery of appraisals of residence and office building.

4. Form LLC,³ deliver trust assets to LLC and house will be sold. [Plaintiffs' counsel] has agreed to prepare the LLC.

....

8. [Mediator] is designated as the individual who will break any deadlocks that may arise within the LLC in carrying out the terms of [Settlement]. He will serve as such until the residence is sold and the final amount of the Bridger Note is established.

....

11. [Settlement] constitutes full and final settlement of the pending lawsuit. [Settlement] will be presented to [the trial court] on September 13, 2012 with request that [it] enter Judgment on [Settlement].

The original judgment, as provided in Settlement, did not remove Trustees. No appeal was taken from the original judgment.

On October 2nd, the trial court entered a written “Order Sustaining Plaintiffs' Motion to Enforce Settlement” (“the enforcement order”) which stated, “The court having denied Plaintiffs' motion objection to [S]ettlement or in the alternative to set same aside instead takes said motion as a motion to enforce [S]ettlement and upon hearing argument of counsel does sustain Plaintiffs' motion to enforce [S]ettlement.” The record does not indicate that the enforcement order was entered in response to any post-judgment motion, it was not denominated as a judgment, and it did not purport to modify any portion of the original judgment.

The enforcement order directed Trustees to provide “an interim accounting capable of being reconciled to a beginning inventory and ending inventory, and to further answer and respond to the questions of counsel of Plaintiffs, in a timely manner.” It appointed Mediator “to assist the parties in resolving any details in implementing [Settlement]. Provided[,] however, any party may, upon proper motion made to this court, bring any issue to this court that cannot be so resolved. The court holds in abeyance any question of sanctions pending further order of this court.”

On March 4, 2013—more than 5 months after the entry of the original judgment—Plaintiffs filed a “Motion to Enforce Settlement and for Sanctions” that accused Trustees of failing to cooperate with Mediator. It also asked the trial court to remove Trustees as a sanction for their failure to cooperate with Mediator.

On May 21, 2013—more than 8 months after the entry of the original judgment—the trial court entered an “Order” granting Plaintiffs' motion. The order purported to remove Trustees and appoint successor trustees in their place. Upon motion by Appellant, the trial court denominated the order as a “judgment” on July 22, 2013 (“the Amended Judgment”). This appeal timely followed.

Applicable Principles of Review and Governing Law

A court of equity has inherent power to remove a trustee in the appropriate case. Covey v. Pierce, 229 Mo.App. 424, 82 S.W.2d 592, 600 (1935). An action in equity is reviewed “just as any court-tried case [.]” Supermarket Merch. & Supply, Inc. v. Marschuetz, 196 S.W.3d 581, 585 (Mo.App.E.D.2006) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). “That is, we must affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Id.

“The trial court's authority to enter amended judgments is a question of law which we review de novo.” State ex rel. Mo. Parks Ass'n v. Mo. Dep't of Nat. Res., 316 S.W.3d 375, 381 (Mo.App.W.D.2010).

An appellate court must determine in every case whether it has the authority to address the merits of an appeal. See In re Marriage of Herrman, 321 S.W.3d 450, 451 (Mo.App.2010); Carleton Properties, LLC v. Patterson, 304 S.W.3d 278, 280 (Mo.App.2010). We cannot address the merits of an appeal if the underlying judgment was entered without authority. Herrman, 321 S.W.3d at 451. Our role is limited to correcting the actions taken by the trial court in excess of its authority.

Hart v. Impey, 382 S.W.3d 918, 921 (Mo.App.S.D.2012). The parties cannot waive, or confer by agreement, authority to the trial court to consider a motion outside its jurisdiction. SD Invs., Inc. v. Michael–Paul, L.L.C., 157 S.W.3d 782, 785 (Mo.App.W.D.2005).

Analysis

Appellant's first point is a bit difficult to comprehend,⁴ but it does assert that the Amended Judgment “was entered after the time for modification had elapsed.” ⁵ As a result, we interpret it to claim that the trial court therefore lacked jurisdiction to enter the Amended Judgment. Plaintiffs argue that the original judgment “was not a final judgment” such that “ Rule 74.01 was inapplicable and the trial court did not surrender jurisdiction after the passage of thirty days without a post trial motion.” For the reasons that follow, we agree with...