561 S.W.3d 434
Mo. Ct. App.2018Background
- In 2000 Shirla opened an individual bank checking account and named her husband Jerry as pay-on-death (POD) beneficiary; in 2002 she established the Shirla Howard Revocable Living Trust.
- After Shirla died in 2015, Jerry claimed the account funds under the POD designation; successor trustee Michael Penney (for the Trust) asserted Shirla had transferred the account to the Trust in 2002, terminating the POD.
- First National Bank interpleaded the funds; Jerry and the Trust each filed claims and cross-claims; the funds were paid into court.
- The Trust moved for summary judgment asserting an uncontested fact (paragraph 7) that Shirla changed account ownership from herself to the Trust; Jerry denied that paragraph.
- The Trust relied on bank computer printouts, account statements showing the Trust name, checks, trust documents in bank files, Penney’s affidavit recounting statements by Shirla, and the bank president’s statements. Jerry disputed admissibility and authenticity.
- The trial court granted summary judgment for the Trust; the appellate court reversed and remanded because the summary-judgment record did not establish the Trust’s right to judgment as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary-judgment record established that Shirla transferred the account to the Trust in 2002 | Trust: Bank records, account statements, checks, trust docs, Penney affidavit, and bank president testimony show transfer | Jerry: Evidence is hearsay, unauthenticated, lacks business-records foundation, and bank documents do not establish a signed change of ownership | The denial of paragraph 7 was not frivolous; evidence was inadmissible/insufficient, so summary judgment for the Trust was improper |
| Whether hearsay and unauthenticated business records may be considered on summary judgment | Trust: Records and affidavits constitute sufficient proof | Jerry: Hearsay and unauthenticated documents cannot support summary judgment | Court: Hearsay and unauthenticated records cannot be considered; movant must present admissible evidence |
| Whether bank president’s statements conclusively established Trust ownership | Trust: President’s statements support Trust ownership | Jerry: President’s testimony was equivocal and admitted absence of signed account change | Court: President’s testimony undermined the Trust’s asserted fact; it did not establish ownership as a matter of law |
| Whether post-hearing supplemental affidavit could be considered in the summary-judgment record | Trust: Bank’s later business-records affidavit would cure defects | Jerry: Late affidavit not in original summary-judgment record and inadmissible for asserted facts | Court: Supplement was not properly before the court under Rule 74.04(c) and cannot be considered; even if considered it would not establish the claimed fact |
Key Cases Cited
- ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993) (summary judgment standards and appellate de novo review)
- Pemiscot County Port Auth. v. Rail Switching Servs., Inc., 523 S.W.3d 530 (Mo.App. 2017) (facts for summary judgment must appear as separately numbered paragraphs and responses under Rule 74.04(c))
- Jones v. Union Pac. R.R. Co., 508 S.W.3d 159 (Mo.App. 2016) (only admissible evidence may be considered on summary judgment; authentication and business-records foundation required)
- May & May Trucking, L.L.C. v. Progressive Nw. Ins. Co., 429 S.W.3d 511 (Mo.App. 2014) (affidavits based on hearsay cannot be considered on summary judgment)
- Cross v. Drury Inns, Inc., 32 S.W.3d 632 (Mo.App. 2000) (procedural limits on supplementing summary-judgment record)