511 S.W.3d 420
Mo. Ct. App.2017Background
- Loren DePew (Father) entered a nursing home in 2012; in November 2012 he executed a durable POA naming his son, Loren Jr. (Son), as attorney-in-fact. The POA expressly authorized Son to make gifts to family members.
- After the POA, Father and Son opened joint checking and savings accounts labeled "joint — with survivorship." The funds in those joint accounts came solely from Father (transferred from prior individual accounts).
- Father died February 4, 2014. The next day Son transferred $45,044.18 from the joint accounts into his own account, then paid approximately $8,076 to the funeral home from his account and later redeposited about $8,076 back into the closed joint checking to cover outstanding checks.
- Personal Representatives (step-children) sued Son to discover assets and impose a constructive trust, seeking $45,044.18 and a constructive trust over Son’s account. Son admitted he owed a fiduciary duty under the POA and admitted joint-account ownership.
- Trial court found Father competent when accounts were created, found certain transfers by Son were made in his fiduciary capacity, and awarded Personal Representatives $2,337.59 (after offsets), assessing costs against Personal Representatives. Personal Representatives appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Son’s role as attorney-in-fact barred him from being joint owner with right of survivorship (i.e., whether opening/keeping the joint accounts and taking funds violated fiduciary duty) | Son could not be both attorney-in-fact and a joint-owner with survivorship without violating the MDPOA fiduciary duties and prohibitions on self-gifting | The POA expressly authorized gifts to family (a class including Son); given that express authorization and the case-specific facts, Son’s conduct did not automatically violate fiduciary law | Court affirmed: no legal error — written POA authorized gifts to family, so prior case law did not mandate reversal under these facts |
| Whether the trial court erred in allowing Son a set-off/reimbursement for funeral expenses (i.e., Father’s funeral was paid from Father’s funds so Son shouldn’t get offset) | Funeral was paid with Father’s funds from the joint accounts, so Son should not get a set-off | Son testified he paid funeral from the joint checking and then redeposited funds to cover outstanding checks; trial court credited Son’s explanation | Court affirmed: Personal Representatives failed to show verdict was against weight of evidence; trial court’s factual findings supported Son’s set-off |
| Whether Personal Representatives, as the "prevailing party," were entitled to costs under Rule 77.01 and §514.060 | Even though recovery was small, Personal Representatives were the prevailing party and thus entitled to costs | Trial court has discretion to apportion costs where multiple counts partly prevail; Personal Representatives won on one claim but lost on constructive trust count | Court affirmed: trial court did not abuse discretion in awarding costs against Personal Representatives |
Key Cases Cited
- Ivie v. Smith, 439 S.W.3d 189 (Mo. banc 2014) (standard for reviewing court-tried cases and weight-of-evidence review)
- Rouner v. Wise, 446 S.W.3d 242 (Mo. banc 2014) (appellate courts focus on correctness of result regardless of trial court's reasoning)
- Estate of Lambur v. Lambur, 397 S.W.3d 54 (Mo. App. S.D. 2013) (attorney-in-fact cannot take gifts to self beyond express authorization in POA)
- Estate of Herbert v. Herbert, 152 S.W.3d 340 (Mo. App. W.D. 2004) (POA that expressly forbids gifts to attorney-in-fact precludes survivorship claim from joint account deposits)
- Bridges v. White, 223 S.W.3d 195 (Mo. App. S.D. 2007) (depositing principal’s funds into joint account with right of survivorship can constitute a gift to attorney-in-fact; factual question whether withdrawal/deposit was authorized)