*1 would there is find substantial evidence HAMMACK, Thomas R. trial judge’s judgment grant- as an Individu- Cotrustee, by al and as
ing implied Appellants’ easement across and on Behalf judgment. and affirm the Beneficiaries of the Hammack Trust, Appellant-Re- Farm spondent, SCOTT, Judge, E. concurring DANIEL in result. agree part I each with of the other TITLE, INC., COFFELT LAND opinions, we should reverse and Respondent-Appellant. opposed outright.
remand reversing as Nos. WD WD 69134. express requirement Not all cases a common owner’s use, prove prior Missouri of Appeals, Court part we calling what are the third Western District. claim, element implied of an easement March is the for Bur- Judge basis reversal under rell’s If opinion.1 we are reversing demanding based on a more standards,2
several reported legal as I be- are, give
lieve we we should remand to
Respondent a chance to meet such stan-
dard, doing so unless would futile. I
Ultimately, believe remand is proper (al- agree Judge
because I with Rahmeyer reasons)
though slightly for different -
Respondent proved otherwise his claim
ie., first, second, what we are calling elements,
and fourth of which Appel- each appeal.3
lant also has attacked on I concur the result. vincing" 1. Such proof required include case cited and relied implied ease- (Full believe, Respondents Gospel Fellowship suggests, they I Stock ments well, 1997)), (Mo.App. judicially disfavored. others, including least at Feeds, remaining 3.I considered Hall, Appellant's chal- court. See Main Street Inc. v. well-taken, lenges any because if such (Mo.App. n. 6 Respondent prevail any that event, could not remand, agree 2. Given our decision to I think remand would be an exercise in resources, applying stringent futility, judicial the more standard waste of and dis- versing judgment. "clear con- parties. service to the *2 Harrisonville, MO, Douglas,
Elvin S. Appellant-Respondent. Koerner, Jr., City, E. Kansas
Wendell MO, for Respondent-Appellant. HOWARD, Before: VICTOR C. ELLIS, Presiding Judge, JOSEPH M. AHUJA, Judge. ALOK Judge and ELLIS, Judge. JOSEPH M. February Stanley H. Ham- On wife, Hammaek, mack his (“Grantors”) revocable, executed a inter denominated the “Stan Ham- vivos trust Family Trust Dated mack Revocable all of their placed almost 02/07/97” left assets therein. One of assets out- one-half the trust the undivided side 1,040 in a acre interest held farm his The by parents. to be owned used other undivided one-half brother, by Stanley’s farm was held by R. The trust executed Hammaek. Stanley’s one-half in- Grantors stated conveyed to tеrest in the farm would be by beneficiary his trust death. Aso executed a deed con- Grantors in the veying title half-interest Family Hammaek Revocable Stan upon Stanley’s death. Family The Hammaek Revocable Trust that, prede- the event provided trust ceased estate would into The half inter- parts. be divided two be placed est the farm was to as the trustee in a trust to be known Family “Hammaek Farm Trust.” The re- maining in the trust were be assets in a trust the “Jeannette M. placed called Any Trust.” income Hammaek earned paid Farm Trust was Family death, Ater in- Jeannette for life. her go from the Farm Trust was to come life, and, upon Thomas Hammaek for death, per would be divided stirpes among Thomas’s children. that Coffelt Land Title breached the terms Family Revocable Trust also of the agreement. Both counts dictated that “the Hammack Farm premised on the assertion that Cof- *3 revoked, Trust not be or nor may amended felt Land Title issued a check to Jeannette may any the be withdrawn there- of assets in her personal capacity instead of as from, of incapacity after the death Trustee for the Family H. Hammack.” Grantor when the real estate transaсtion closed. On 29, 2006, June Plaintiff filed a motion for 3, 1998, Stanley, On December Jean- summary judgment, which was subse- nette, Thomas, wife, Janet, and Thomas’s quently granted by the trial court. After a 1,040 a contract to the sell acre hearing on damages, the trial court en- farm to P. Perkins David and David D. tered judgment against Coffelt Land Title day, Davenport. Stanley, That same Jean- $176,726.50. for The court Plain- nette, Thomas, denied еxecuted, and Janet request tiffs for pre-judgment interest. capacities, their a individual General War- ranty transferring Deed title Perkins to parties appeal Both from the trial Davenport, they placed and and that title judgment. court’s Coffelt Land Title chal- Inc., in escrow with Coffelt Land lenges entry the of summary judgment, pending payment. Plaintiff challenges the denial of an 6,1998, On December died. award of interest. We first examine Cof- felt Land Title’s claims of error. 1, 1999,
On Jeannette execut- a conveying ed Trustee’s an undivid- “The appeal testing criteria on for the 1,040 ed one-half interest acre farm of propriety summary judgment are no Davenport. to Perkins and Thomas and different from those which should be em- warranty Janet a general also executed ployed by trial court to determine the conveying a one-half interest propriety sustaining of the motion initial- Davenport. farm to Perkins and Perkins Inst, ly.” Body Allen Midwest Work of Davenport payment, tendered and the L.L.C., & Therapy, Somatic 197 S.W.3d of was closed. Coffelt Land W.D.2006) (internal 619 (Mo.App. quo- a Title issued check from the proceeds omitted). “Summary tation judgment will $176,725.69 the sale a to (1) upheld on appeal if: there no check to Thomas and Janet in that same (2) dispute fact, genuine of material amount. the movant is entitled judgment as a January Thomas, On individu- matter of law.” Id. “The movant bears the ally and on behalf of himself and other establishing legal right burden of both a beneficiaries of the Hammack any genuine and the absence (“Plaintiff’), Farm Trust filed a two count issue of material fact required support Dаmages Petition for in the Circuit Court right judgment.” the claimed Lewis v. County of Cass against Coffelt Land Title. Biegel, 204 (Mo.App. 356 W.D. counts, In both petition averred that 2006) (internal omitted). quotation Coffelt Land Title entered into an escrow “Appellate grant review agreement Stanley, I, as, summary judgment and Janet. In Count is de novo.” Midwest Plaintiff assert- Walker, a Mgmt., ed claim ern Health Inc. v. negligence, alleging based W.D.2006). thаt Coffelt Land Title had breached duty light of care owed as a “The record result below reviewed II, relationship. In Plaintiff alleged party against Count most favorable to the whom entered, agreement creates “An escrow summary judgment and breach of fiduciary relationship, rea- of all benefit party is entitled a tort.” Dave duty Lew- constitutes fiduciary from the record.” inferencеs sonable (internal Corp., is, quotation Grading, Inc. Lieberman at 356 Kolb 204 S.W.3d E.D.1992). “[fjacts omitted). However, contained However, par- fiduciary relationship or otherwise “[t]he affidavits accepted as true unless and the other ty’s motion an escrow non-moving party’s scope is much narrower contradicted summary judgment motion.” sponse relationships such as fiduciary than other *4 Walker, “Summary at 297. Chicago 208 S.W.3d Title attorney/client.” Gilmore the only when judgment appropriate Co., (Mo.App. 926 S.W.2d Ins. there no E.D.1996). that agent record demonstrates “An is bound escrow facts regarding material disputes genuine agreement escrow the terms of the to moving party the is entitled and that duty only the fiduciary when breaches Lewis, 204 as a matter of law.” judgment terms.” Id. agent fails to follow those omitted). (internal quotation Thus, at 356 of to establish either breach order part on the of negligence contract or Cof- Land Title claims On appeal, Coffelt Title, required to Plaintiff was felt Land sum- entering that trial court erred in Coffelt Land Title failed prove that be- mary of Plaintiff judgment on behalf the escrow comply with the terms of re- of material fact genuine cause issues agreement. Plaintiff bеcause mained case and that he was entitled to establish failed summary Plaintiffs motion for Neither as matter of law. judgment Coffelt of uncontro- judgment nor his statement genuine Title issues Land asserts agree- references the escrow verted facts it what owed regarding main duties any way. ment or the terms thereof Plaintiff and whether those duties' Indeed, alleged that petition Plaintiffs further ar- Coffelt Lаnd Title breached. has not seen the contractual “Plaintiff disputed whether Coffelt gues that was obligations of Defendant under terms and of have known Title knew or should Land Moreover, agreement.” the escrow provisions of the Hammack specific Plaintiffs response Land Coffelt Title’s Family Trust. as- summary judgment, Coffelt motion for terms of the specifically closed that “the a transaction is serted “When fact, agreement disputed was agent agent escrow” through escrow that the terms of responded an ex which Plaintiff performance charged agreement “is not a material governed by agree the escrow the escrow press trust which this ... the transaction [a]s for each of fact perform ment with duties to would have been based forbid escrow accоunt which duties neither can those terms.” Boat was not handled of the other.” without consent saying we don’t Dandy, Louis v. Plaintiff is Nat’l Bank St. men’s agree- the terms of the escrow E.D. know what 785-86 were, not absolutely ment but the transaction was “is escrow in accordance with those unknown handled by the terms and conditions bound therefore, terms, and, those unknown deposit charged with a strict execution germane to this case. The terms are not voluntarily South the duties assumed.” fallacy proposition is self evident. v. Beck ern Lumber & Milhvork Co. Cross support of er, suggestions in E.D. While Plaintiffs view, summary judgment general- his motion for reversal is also mandated based on ly Land “as escrow one of Coffelt’s alternative arguments. state Coffelt breached its contractual and fidu- Since that will agent, inevitably issue recur on Plаintiff, remand, individually both ciary judicial economy duties to the interest of I believe it capacity in his as co-trustee under the merits discussion now. Trust,” Family Farm Plaintiff Hammack (the The Hammack Farm Trust identify provision not what does “Trust”) claims an interest allegedly escrow breached. Jeannette Hammack’s undivided one-half Having through failed to establish uncon- 1,040-acre family troverted facts what duties Coffelt Land (the “Property”) only by virtue of a agree- Title assumed under ment, Plaintiff has not established Jeannette Hammack on right as a matter of law on effectively Unless negligence either his breach of contract or Trust, transferred the claims.1 Thomas against Hammack’s claims Defen- *5 Accordingly, entry the trial court’s Title, dant necessarily Coffelt Land Inc. in summary judgment favor of Plaintiff is fail, they deрend since a finding on that reversed, and the cause is remanded to the proceeds of the should proceedings. trial court for further Trust, have been disbursed to the rather individually.2 than to Jeannette Hammack in principal J. HOWARD concurs argues Coffelt’s third Point Relied On opinion. summary judgment that the should be in principal opinion J. AHUJA concurs gen- versed because the evidence creаtes a separate concurring opinion. and files uine whether issue and Jeannette a effected transfer of their AHUJA, Judge, concurring. ALOK rights in the Property during Stanley fully I concur in the opinion, Court’s lifetime, Hammack’s which would have the summary judgment its reversal of the terminating beneficiary effect of entered favor of Plaintiff Ham- Thomas on which Thomas Hammack’s claims de- primary opinion сorrectly mack. As the pend. agree. observes, knowing without the terms of beneficiary Missouri authorizes deeds the escrow between the Ham- like the and Jean- macks and Defendant Land Coffelt 461.025.1,3 § nette Hammack in which impossible say is that Hammack enti- is states: tled to as a matter of law on negligence
either his
breach
A
conveys
or
of contract
deed that
because,
claims. I
separately
my
property
grantee designated by
write
real
to a
conclusion,
Having
beneficiary,
1.
reached this
we need
is a
rather than to her
she
parties’ remaining
not address either of the
Although
personally).
Plaintiff
on
Thomas
points
appeal.
on
theory
Hammack’s
Jeannette Hammack was
$175,000.00
wrongful recipient
of over
Hammack,
noteworthy
It is
that Jeannette
Trust,
belonging to the
has not to this
she
purportedly
paid
proceeds
who
the sales
point
a
or
been named as
defendant
third-
error,
Trust,
is one of the
co-Trustees of
party defendant in this action.
during
entitled to
income from the Trust
lifetime,
presumably
her
thus
ben-
statutory
3.All
references are to RSMo 2000.
required
efit if Coffelt is
to disburse the sales
(now
proceeds a second time
to the
as,
Janet,
owner,
wife
executed a contract
expressly states that
and his
1,040-acre farm to
take effect until the death
to sell the entire
David
deed is not to
owner,
interest pro-
Davenport; significant-
transfers the
of the
Perkins and David
designated grantee benefi-
to the
Hammacks also executed a
ly,
vided
the four
owner,
Deed,
if
ciary, effective on death
Warranty
General
unconditional
face,
and filed of record
the deed is executed
transferring the farm to Perkins
its
city
of deeds in the
or
with the recorder
Davenport,
and delivered
in which the real
county or counties
escrow Coffelt.
prior to the death of
property is situated
that, where a deed
Missouri cases hold
A
deed need not
the owner.
is transferred to an escrow
for deliv-
de-
by consideration
be
supported
the transferee’s
ery transferee
A
grantee beneficiary.
livered to
(fre-
specified
fulfillment of
conditions
may be used to trans-
beneficiary deed
quently payment
purchase price),
property
an interest in real
to a trust
fer
when those conditions
satisfied
estate,
of such trust’s revoca-
regardless
deemed to “relate baсk” to the
bility.
date on which the transferor delivered the
Missouri statutes
also
The relevant
agent. Significantly,
deed to the escrow
clear, however,
“[p]rior
make
applies
this rule
even where the transferor
owner,
shall
death
of the deed into
dies between
rights
have no
reason of
escrow and the ultimate consummation
§
beneficiary designation.”
461.031.1.
Thus, in Donnelly
the transaction.
v. Rob-
*6
beneficiary
the fact that a
Consistent with
inson,
(Mo.1966), two life-
whole or in the lifetime of Wayne County delivered to the Bank “to § particular, owner.” 461.033.1. In “[a] the bank until the be held escrow during the owner’s lifetime of the purchase price check for the was received property, interest in with or with- owner’s Highway from Id. the State Commission.” consideration, beneficia- out terminates the at 597. The received bank/escrow ry designation resрect with to the check on No- Highway Commission’s § generally transferred.” 461.033.5. See 29, 1960; unfortunately, vember the life- Dugger Dugger, Estate in an auto- estate holders were both killed S.D.2003). 428-29 25,1960, over a mobile accident October grantor’s simple act of trans- Despite earlier. the fact that the month ferring property subject died, his interest their life life-estate holders had deed, lifetime, during terminated, su- acсordingly before estates had persedes and terminates a des- of the condition on fulfillment respect to that ignation proper- interests, same Supreme held their Court become, then, ty. question The transaction “related that the consummated Jeannette Hammack 5,1960: whether back” to October their interest transferred ... rely, The as the trial respondents during Stanley Hammack’s lifetime. did, delivery upon court the effect of notes, fully executed dated October majority opinion As the on De- of the deed 5, 196[0], Bank. Wayne County Stanley, cember The bank was to deliver this deed to the which regarded having as been Highway Department upon Missouri delivered at the time of its conditional payment purchase price. of the (citation omitted)).4 delivery ....’” purchasе money paid; the deed de- Here, if Stanley and Jeannette Ham- the respondents livered and contend mack delivered the General Warranty the trial properly court held that Deed to Coffelt for delivery its to Perkins the date of the concluded transaction and Davenport upon their fulfillment of related back to the date of the deed and conditions, particular and those conditions delivery its to the bank.... were ultimately satisfied and the transac- The court invoked the rule that upon consummated, tion the “relation delivery by final a depository of a deed back” doctrine the transfer would be deposited in escrow instrument will deemed to have occurred on the date of to, relating be treated as back and tak- Stanley and Jeannеtte Hammack’s original ing effect at the time of the original delivery of the deed to Coffelt. The Ham- deposit apply escrow. This shall even original macks’ delivery to Coffelt appar- though of the to the deed ently occurred on December prior dies before the delivery. second This Hammack’s death. If Stanley relation back doctrine has wide gen- and Jeannette Hammack in fact trans- ancient[,] acceptance. eral Its roots are ferred their interest in the Property to [dating] as far back Sixteenth Davenport Perkins and effective December Century.... 3, 1998, however, this would have the ef- 597-98; Sevier, id. at Pipes see also fect of terminating the February 1997 ben- W.D.1985) eficiary virtue operation (where “[a] unconditional terms 461.033.5, § and Thomas Hammack’s placed beyond the grant- [is] control of the claims in present lawsuit would neces- its party the third sarily fail. “ holder,” ‘[acceptance after the These issues cannot be resolved without grantor death of the dates back the time *7 knowing the terms and conditions of the of the delivery of the deed to the ... entered into between [escrow and renders it a holder] ” Coffelt, the Hammacks and (citation omitted)); as of that date’ Tur Mallernee, December 1998 deed was (Mo. delivered ner v. Moreover, S.D.1982) (“ into escrow. the situation is App. considered, ‘Properly complicated by escrow, the fact that in delivery, delivery conditional death, after any is the same as other Hammack’s delivery, except subject to the satisfaction Jeannette Hammaсk executed a Trustee’s conveying condition. After the condition Deed has been to Perkins satisfied, there operative conveyance is an Davenport. According to Thomas Nelson, 4. Hammack cites Carolan v. pass title does not in the case of an escrowed W.D.2007), satisfied, for the any deed until conditions are Missouri, proposition that ... a deed "[i]n "relation back" doctrine holds that —once delivered 'in escrow’ is viewed as a condition- those conditions satisfied—the transfer is effectively pass al that does not title deemed to have occurred as of the date of grantor until the condition is satisfied.” original delivery into escrow. even if it But Carolan does not involve an escrowed properly supported, Hammack's conten- deed, my reading provides support no application tion would not avoid of the "rela- proposition for the for which Hammack cites tion back" doctrine. Further, it. even if Hammack is correct Hammack, Hammack’s execu- was procured Deed of this Trustee’s
tion Coffelt, factual although readily apparent. is not
that assertion
Nevertheless, the relation-back issue while final resolution capable
may not it does supply appeal, believe for reversal the sum- ground
additional by the circuit entered
mary judgment
court. MOYERS, Appellant, P.
Devlin MOYERS, Respondent. N.
Suzanne ED 91121.
No. Appeals,
Missouri Court District,
Eastern
Division Two. 14, 2009.
April