Ellison v. Fry
2014 Mo. LEXIS 205
| Mo. | 2014Background
- In 1981 Vincil and Willa Fry executed a will that allocated the 40-acre tract to Mary, a 160-acre homestead to J.D., and a 200-acre tract to David and Susan with life estates in Arthur.
- In 1990, after Vincil’s car crash, new wills and a trust were created, transferring the 200-acre tract to J.D. and the 160-acre tract to J.D.’s son Delbert, while preserving life estates for Vincil and Willa and vesting Mary with the 40-acre tract subject to life estates.
- J.D. later conveyed the 200-acre tract to himself and his wife Linda, and they later placed the land into the J.D. Fry Revocable Inter Vivos Trust.
- Vincil granted J.D. durable power of attorney in 1998; Vincil died in 2000 and Willa died in 2005, with Willa’s funds distributed among the children without probate.
- In 2008 Mary sued to set aside the 1990 deeds and alleged J.D. fraud and undue influence; Arthur settled with J.D. for $100 and released claims; J.D. died in December 2008 and Linda was substituted as trustee for J.D.
- After amendments and pretrial dismissals, six claims remained, the jury ruled against Linda (trustee) on several counts, and the trial court overruled JNOV on those jury verdicts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Susan and David’s claims time-barred? | Fraud claims accrue on discovery within 10 years; tolling may extend up to 15 years. | Fraud claims under 516.120(5) must be brought within 15 years regardless of discovery. | Claims are time-barred under 516.120(5). |
| Was substitution of Linda as trustee proper for J.D. after death? | Trial court could substitute a proper personal representative; failure to open an estate should not bar claims. | Substitution of the trust’s trustee was proper under probate statutes. | Substitution was improper; claims against J.D. did not survive; reversal of related judgments. |
| Was Arthur’s release of claims invalid or improperly applied? | Arthur may have signed unknowingly and without understanding; release could be invalid. | Release was executed knowingly for valid consideration and is presumptively valid. | Release valid; even if invalid, claims were time-barred and not prejudicial. |
| Did Mary’s equitable claim for specific personal property lie? | Mary sought specific items as part of equitable relief from the homestead. | No legal basis or identification of rights to specific items; election of remedies bars relief. | No. Election of remedies forecloses the specific-property claim. |
| Should punitive damages have been submitted? | If liability and damages are established, punitive damages may be warranted. | Punitive damages require liability and actual or nominal damages; none exist here. | moot because the liability/damages judgments were reversed; no punitive damages awarded. |
Key Cases Cited
- Klemme v. Best, 941 S.W.2d 493 (Mo. banc 1997) (fraud claims must be brought within 15 years under §516.120(5))
- Clymer v. State, 522 S.W.2d 793 (Mo. banc 1975) (516.280 tolling does not extend fraud accrual under 516.120(5))
- Anderson v. Dyer, 456 S.W.2d 808 (Mo. App. 1970) (516.120(5) controls fraud accrual; tolling not applicable)
- Obermeyer v. Kirshner, 38 S.W.2d 510 (Mo. App. 1931) (fraud tolling by concealment; pre-516.120 law recognized concealment tolling)
- Hayden, In re Estate of, 837 S.W.2d 31 (Mo. App. 1992) (appointment of personal representative required to pursue survivorship actions)
- Darrah v. Foster, 355 S.W.2d 24 (Mo. 1962) (even wrongful death/personal injury claims require representation when surviving)