Mary Ellison, Arthur Fry, David Fry, and Susan Sleeper, Appellants v. J.D. Fry, by Linda Fry, Trustee of the John Delbert Fry Revocable Intervivos Trust, Respondents/Cross-Appellants.

SUPREME COURT OF MISSOURI
en banc
MARY ELLISON, ARTHUR FRY, DAVID FRY, )
and SUSAN SLEEPER, )
Appellants/Cross-Respondents, )
)
vs. ) No. SC93760
)
J.D. FRY, DECEASED, BY LINDA FRY, )
TRUSTEE OF THE JOHN DELBERT FRY )
REVOCABLE INTERVIVOS TRUST, et al., )
Respondents/Cross-Appellants. )

Appeal from the Circuit Court of Camden County
Honorable Ralph Jaynes, Judge

Opinion issued August 19, 2014

In a family dispute over the inheritance of money and property, Plaintiffs Mary

Ellison, Susan Sleeper, and David and Arthur Fry appeal the trial court’s dismissal of all

of Arthur’s claims and some of David, Susan, and Mary’s claims. 1 Defendants cross-

appeal the court’s refusal to dismiss all of the remaining claims. As a result of the

dismissals, the trial court submitted only six of the ten claims Plaintiffs initially brought.

The primary defendant, J.D. Fry, died after suit was filed but before trial. The trial court

substituted J.D.’s wife, Linda Fry, in her capacity as trustee of J.D.’s trust. The jury

returned verdicts against Linda Fry, as substitute for J.D., and in favor of Mary, David

and Susan on three of their claims that J.D. committed frauds and other wrongs beginning

1
For the sake of brevity and clarity, the parties are referred to by their given names. No
disrespect is intended.
in 1990 that resulted in J.D.’s pecuniary gain. The trial court overruled Defendants’

motion for judgment notwithstanding the verdict.

This Court reverses the trial court’s judgment on the jury verdicts in favor of

David, Susan and Mary. The statute of limitations for fraud claims, section 516.120(5), 2

gives a person up to 10 years to discover the fraud and requires, without exception, that

all such claims be brought within five years of discovery so that no claim of fraud may be

brought more than 15 years after the fraud occurred, even if the fraud is concealed for a

longer period. Because Susan and David’s claims were brought more than 15 years after

the fraud allegedly occurred in 1990, their claims are time-barred by section 516.120(5).

Mary’s claims likewise are barred. Sections 537.010 and 537.021.1(2) require

substitution of J.D.’s personal representative. Linda was not J.D.’s personal

representative – indeed, Plaintiffs failed even to open an estate – and, therefore, it was

improper to substitute Linda upon J.D.’s death.

The trial court properly dismissed Plaintiffs’ other claims before trial for the

reasons noted below, and the judgment of the trial court with respect to these claims is

affirmed. The judgment on the jury verdicts for Plaintiffs is reversed, and the case is

remanded for entry of judgment for Defendants on those claims.

I. FACTUAL BACKGROUND

In 1981, Vincil and Willa Fry executed a joint will that distributed their assets

among their children, Mary Ellison, Arthur Fry, and J.D. Fry, and two grandchildren,

David Fry and Susan Sleeper. The will devised a 40-acre tract of land and cash to Mary,
a 160-acre homestead to J.D., and a 200-acre tract of land to David and Susan, subject to

a life estate in their father Arthur.

In 1990, when he was 82 years old, Vincil caused a car crash that injured the

occupants of another car. Although Vincil and Willa were fully insured, they worried

that Vincil’s liability would cost them their farm. J.D. took them to his attorney, and in

June 1990 they executed new wills, settled a trust to benefit Arthur, Susan, and David,

and deeded the 200-acre farm to J.D. and the 160-acre homestead to J.D.’s son Delbert,

reserving life estates for themselves in both properties. Vincil and Willa also conveyed

the 40-acre tract to Mary subject to life estates in themselves. In their 1990 wills, Vincil

and Willa devised all of their property to the surviving spouse or, if the other spouse was

deceased, to their three children. J.D. subsequently conveyed the 200-acre tract to

himself and his wife, Linda, and they later conveyed the land into the J.D. Fry Revocable

Inter Vivos Trust. In 1998, Vincil granted J.D. his durable power of attorney. Vincil

died in 2000, and Willa died in 2005. After Willa’s death, her monies were distributed

among the children without a probate estate being opened because, the children later said,

they did not believe there was enough property to make it worthwhile to open an estate.

Three years later, in April 2008, Mary sued to set aside the 1990 deeds to J.D. and

Delbert and brought claims against J.D. for breach of fiduciary duty, fraud, conversion,

and unjust enrichment. Though the 1990 deeds transferring property to J.D. were

recorded and reported in the newspaper, Mary alleged that she and Arthur did not know

that J.D. gave no consideration for the deeds until December 2006 because J.D.

2
All statutory references are to RSMo 2000 unless otherwise noted.

3
fraudulently concealed this information. Nor was she aware of their 1990 wills, which

replaced the also unknown 1981 will that had divided Willa and Vincil’s property evenly

among the children. Mary also alleged that J.D. had used the power of attorney he

obtained in 1998 to purchase multiple certificates of deposit (CDs) in his own name with

Vincil and Willa’s funds and to cash other CDs owned by Willa and Vincil that had listed

Mary and Arthur as payable-on-death beneficiaries. She further alleged that J.D.

exercised undue influence over his parents to obtain the 1990 deeds, change their wills,

and obtain powers of attorney, and that he acted fraudulently and unjustly enriched

himself. Arthur did not join Mary’s suit and instead entered into a settlement agreement

with J.D. under which he fully released any and all potential claims in exchange for $100.

J.D. vehemently denied all of the allegations.

In December 2008, just a few months after the suit was filed, J.D. died. Mary filed

suggestions of death on December 15, 2008. Rule 52.13 requires that a new party be

substituted in the manner permitted by the probate statutes within 90 days after a

suggestion of death is filed or the case will be dismissed without prejudice. Sections

537.010 and 537.021.1(2) together provide that a property claim against a defendant may

continue after the defendant’s death by substituting the appointed personal representative

of the deceased defendant’s estate. Neither Arthur, Mary, nor any person legally entitled

to do so opened an estate for J.D. or sought appointment of a personal representative.

Mary instead moved the trial court to substitute J.D.’s daughter as a defendant in J.D.’s

place. Defendants objected that only a personal representative could be appointed. The

trial court sua sponte substituted J.D.’s widow, Linda, in her capacity as trustee of J.D.’s

4
trust, as defendant.

Plaintiffs subsequently subpoenaed Arthur’s testimony and, in 2011, Arthur and

his children David Fry and Susan Sleeper joined the suit. Plaintiffs amended the petition

to bring a total of 10 counts against J.D., Linda, Linda as trustee, Delbert, and Fry Grain

Enterprises, a business owned by J.D. and Delbert. Just prior to trial, Plaintiffs again

amended their petition by removing Mary from multiple counts. 3

At the close of Plaintiffs’ evidence and again at the close of all the evidence,

Defendants moved for a directed verdict on numerous grounds. The trial court sustained

these motions in part, dismissing all claims by Arthur based on his signing of a release of

those claims, dismissing all claims against J.D.’s son Delbert because of lack of evidence

of his involvement in any of the asserted wrongs, dismissing the conversion claim against

J.D.’s company, Fry Grain, and refusing to submit punitive damages.

As a result of the amendments and the dismissals, the only claims that remained at

the close of evidence were Susan and David’s claims against J.D. (through Linda as

3
At this point, in Count I, as amended, Arthur, Susan, and David sued J.D., Linda
(individually), Delbert, and the trust for fraud and undue influence related to the 1990
deeds. In Counts II through V, Mary and Arthur sued J.D. and Linda (individually) for
breach of fiduciary duties, fraud, fraudulent concealment, fraudulent misrepresentation,
conversion and replevin, and unjust enrichment related to their alleged misuse of J.D’s
powers of attorney and Willa and Vincil’s CDs and safe deposit box. In Count VI, Mary
and Arthur sued Fry Grain for conversion of USDA farm payments, rent, and farm
equipment related to Defendants’ use of the 200-acre and 160-acre tracts of farmland. In
Count VII, Mary and Arthur sued Delbert for unjust enrichment through his receipt of the
160-acre tract of land, but they dropped this count during trial. In Count VIII, as
amended, Arthur, Susan, and David sued the trust alleging it was unjustly enriched by the
1990 deeds. In Counts IX and X, Arthur sued J.D., Linda (individually), and Delbert for
breach of contract, fraud, fraudulent concealment, and fraudulent misrepresentation
relating to Arthur’s release of claims agreement.

5
trustee 4 ) and Linda (individually) for fraud and undue influence (Count I), Susan and

David’s claims against Linda as trustee for unjust enrichment relating to the 1990 deeds

(Count VIII), and Mary’s claims against J.D. and Linda (individually) for breach of

fiduciary duty, fraud, fraudulent concealment, fraudulent misrepresentation, conversion

and replevin, and unjust enrichment (Counts II through V). The court instructed the jury

on these six remaining claims. As to claims against J.D., the court instructed the jury that

“defendant J.D. Fry is deceased and [trustee] has been substituted to take his place;

therefore if you find against defendant J.D. Fry, your verdict must be against [trustee].”

In Verdicts A and C, the jury found for David and Susan against Linda as trustee

for unjust enrichment, awarding each $5,500. In Verdicts B and D, the jury found for

David and Susan against Linda as trustee for undue influence but awarded $0.

In Verdict E, the jury found for Mary against Linda as trustee for unjust

enrichment, breach of fiduciary duty, fraudulent concealment, and conversion and

awarded her $35,000.5 In Verdict F, the jury found for Mary against Linda individually

for unjust enrichment, but awarded Mary $0.

After the verdicts were returned, Plaintiffs moved the court to add to the final

judgment an award to Mary of several items of personal property she claims were

4
In Verdicts A through E, Linda is named as the defendant solely in her capacity as
trustee as the court-ordered substitute for J.D.; none of the counts underlying these five
verdicts made claims against her personally. Verdict F was against Linda personally, but
awarded $0 in damages. Susan, David and Mary do not complain about the award of $0
in Verdicts B, D and F, nor did they seek a new trial on these claims or argue that it was
inconsistent to find for them on these counts but award no damages, so those issues are
not before this Court on appeal.

6
intended for her. Defendants timely filed a motion for judgment notwithstanding the

verdict (JNOV) or, in the alternative, for a new trial.

The trial court did not rule on Mary’s motion for an order granting her certain

items of personal property, and it overruled Defendants’ motion for JNOV. Plaintiffs

appealed, Defendants cross-appealed, and the court of appeals consolidated the appeals.

This Court transferred the consolidated case after opinion under article V, section 10 of

the Missouri Constitution.

II. STANDARD OF REVIEW

Defendants argue that the trial court erred in overruling their motions for judgment

notwithstanding the verdict on all issues. Plaintiffs argue that the trial court erred in

sustaining Defendants’ motions for directed verdict on any issue.

A case may not be submitted unless each and every fact essential to liability is

predicated on legal and substantial evidence. Moore v. Ford Motor Co., 332 S.W.3d 749,

756 (Mo. banc 2011). Whether the plaintiff made a submissible case is a question of law

that this Court reviews de novo. Id. To determine whether a directed verdict or judgment

notwithstanding the verdict should have been granted this Court applies essentially the

same standard. Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. banc 2010). To

determine whether the evidence was sufficient to support the jury’s verdict, an appellate

court views the evidence in the light most favorable to the verdict. Moore, 332 S.W.3d at

756. A motion for directed verdict or JNOV should be granted if the defendant shows

5
This Court does not reach alleged errors in Mary’s submission of multiple causes of
action in a single verdict director, as that issue is not raised on appeal. See MAI 2.00.

7
that at least one element of the plaintiff’s case is not supported by the evidence. Id.;

Clevenger v. Oliver Ins. Agency, Inc., 237 S.W.3d 588, 590 (Mo. banc 2007).

III. DISCUSSION

The parties’ cross-appeals raise a total of 11 points. Defendants offer multiple

grounds on which they believe that the trial court erred in overruling their motion for

JNOV. Because this Court’s resolution of two of Defendants’ points requires the

judgment be reversed, it does not reach Defendants’ other points. Plaintiffs argue that the

trial court erred in sustaining Defendants’ motions for directed verdict to the extent that

the court refused to submit punitive damages, dismissed Arthur’s claims, and dismissed

all claims against Fry Grain and Delbert. Plaintiffs also appeal the trial court’s refusal to

rule on Mary’s motion to award her specific personal property.6 This Court finds each of

these points lacks merit.

A. Defendants’ Cross-Appeal

i. Susan and David’s Claims are Time-Barred

Susan and David claimed unjust enrichment based on J.D.’s alleged fraud in

causing Willa and Vincil to sign the 1990 deeds and to prepare the 1990 wills to replace

the 1981 will under which Susan and David were to receive remainder interests in the

200-acre tract of land subject to a life estate in Arthur. They assert that J.D. fraudulently

concealed the existence of both the 1981 and 1990 wills executed by Willa and Vincil

6
Plaintiffs do not appeal Mary’s $0 verdict for unjust enrichment against Linda
individually or Susan and David’s $0 verdicts for undue influence against Linda as
trustee, despite the fact that Susan and David repeatedly refer to conduct that they believe

8
and the fact that no consideration was given for the 1990 deeds.

Defendants argue that the trial court should have granted their motion for JNOV

on Susan and David’s unjust enrichment claims because these claims were barred by the

statute of limitations. Susan and David counter that, because they allege fraud, the

controlling statute of limitations is section 516.120(5), and that their claim is not barred

under the latter statute. Section 516.120(5) sets out the statute of limitations for fraud

claims as follows:

Within five years: … (5) an action for relief on the ground of fraud, the
cause of action in such case to be deemed not to have accrued until the
discovery by the aggrieved party, at any time within ten years, of the facts
constituting the fraud.

§ 516.120(5). Under this statute, all fraud claims must be brought within five years from

when the cause of action accrues, which is either when the fraud is discovered or at the

end of 10 years after the fraud takes place, whichever occurs first. Klemme v. Best, 941

S.W.2d 493, 497 (Mo. banc 1997); State ex rel. Stifel, Nicolaus & Co., Inc. v. Clymer,

522 S.W.2d 793, 798 (Mo. banc 1975).

Consequently, the latest a fraud claim can accrue and the statute of limitations

begin to run is 10 years after it is committed, regardless of whether the fraud actually is

discovered. Clymer, 522 S.W.2d at 798. As Clymer explains:

[T]he cause of action does not accrue from discovery of the fraud. If ten
years elapse without discovery of the fraudulent acts, the statute of
limitations begins to run and after five years the cause of action is barred,
even if the fraud has not yet been discovered.

constituted undue influence. This Court therefore does not discuss further either of these
matters.

9
Id. at 798. This means that the latest a fraud claim may be brought is 15 years after the

fraud occurred. Id.

Susan and David argue that this 15-year maximum period is extended further

because of J.D.’s alleged fraud in concealing the transfer of property and the existence of

the 1990 wills. Although they do not identify a specific statutory basis for this extension,

Susan and David implicitly are referring to section 516.280, the general tolling statute, 7

which sets out a “discovery rule” for cases in which a defendant conceals the wrong.

Susan and David’s arguments are not well-taken. It is well settled that the general

tolling statute does not apply to fraud claims under 516.120(5) because it contains its

own, more specific, 10-year discovery rule. As explained in Anderson v. Dyer:

The imposition of Sec. 516.280 onto Sec. 516.120(5) would make the latter
ineffective insofar as it undertakes to establish a particular period within
which the fraud is deemed to have been discovered and the action to have
accrued. Therefore, “(i)f the action is founded upon fraud, as provided in
(Sec. 516.120(5)), *** it does not matter whether the party who has
defrauded him does anything to prevent his discovery or not.”

456 S.W.2d 808, 813 (Mo. App. 1970), quoting Maynard v. Doe Run Lead Co., 265 S.W.

94, 99 (Mo. 1924). Anderson noted that section 516.120(5) is the only provision that

specifically controls the statute of limitations for fraud and, so, is narrower in scope than

the general tolling statute.

This Court implicitly approved Anderson’s analysis in Clymer. 522 S.W.2d at

7
Section 516.280 provides:
If any person, by absconding or concealing himself, or by any other
improper act, prevent the commencement of an action, such action may be
commenced within the time herein limited, after the commencement of
such action shall have ceased to be so prevented.

10
797-98. Although Clymer specifically involved the separate issue of the time at which a

cause of action for fraud accrues, it quoted approvingly Anderson’s analysis that section

516.280 does not toll the time for bringing a fraud claim under section 516.120(5) as

support for the rule that the time allowed for discovery does not affect the accrual of the

cause of action. Id. at 796-98. This Court’s approval of Anderson’s analysis on this

point is persuasive. See also Gilmore v. Chicago Title Ins. Co., 926 S.W.2d 695, 699

(Mo. App. 1996) (holding “fraudulent concealment does not toll the statute of limitations

for fraud beyond what is provided for in § 516.120(5)”); Graf v. Michaels, 900 S.W.2d

659, 662 (Mo. App. 1995) (quoting Anderson and stating that fraud actions must be

brought within 15 years).

Despite this seemingly settled rule, Plaintiffs note that a separate line of cases does

suggest that the statute of limitations for fraud may be tolled indefinitely by a defendant’s

active concealment of the fraud. This separate line of authority had its genesis in

Obermeyer v. Kirshner, 38 S.W.2d 510, 514 (Mo. App. 1931). Obermeyer recognized a

common law exception to the predecessor to section 516.120(5), under which fraudulent

concealment of defendant’s fraud could toll the statute of limitations for fraud.

Kansas City v. W.R. Grace & Co., 778 S.W.2d 264, 273 (Mo. App. 1989), which

Plaintiffs cite, relied on Obermeyer to state: “If a party takes affirmative action to conceal

the fraud, the statute is tolled until the fraud is discovered.” Occasionally, the court of

appeals has reiterated this same alternative line of analysis, although in none of these

cases did the court of appeals actually find tolling. See, e.g., Misischia v. St. John’s

Mercy Med. Ctr., 30 S.W.3d 848, 867 (Mo. App. 2000) (quoting W.R. Grace for this

11
rule); Cullom v. Crittenton, 959 S.W.2d 915, 918-19 (Mo. App. 1998) (to same effect);

and Tilley v. Franklin Life Ins. Co., 957 S.W.2d 349, 351 (Mo. App. 1997) (same).

To the extent that these cases state that the statute of limitations for fraud under

section 516.120(5) is tolled if the fraud is concealed, they conflict with section 516.120,

Clymer, Anderson, and similar cases properly applying section 516.120, and they no

longer should be followed. This Court reaffirms its holdings in Klemme and Clymer that

all claims for fraud must be brought within a maximum of 15 years, as provided by

section 516.120(5). Neither section 516.280 nor the common law tolls the accrual of a

cause of action for fraud.

Applying this analysis here, 8 the alleged fraud in the transfer of the deeds and the

preparation of the new will occurred in 1990, and the right to contest this conduct accrued

in Willa and Vincil at that time. Assuming, without deciding, that fraudulent

concealment were involved here, the statute of limitations would have run 15 years later,

in June 2005, and so would have expired prior to Willa’s death in November 2005. 9

David and Susan did not sue until 2008. That was too late. In fact, by the time David

and Susan obtained an interest in these claims, the claims already were time-barred.

8
On appeal, Plaintiffs’ tolling argument is based only on their claim that the statute of
limitations was tolled under section 516.120(5) due to J.D.’s fraud. They do not argue
that a different statute of limitations applied to specific torts that J.D. is alleged to have
committed or that the general tolling statute might apply to one of those other claims.
Consequently, this Court does not address those issues.
9
Defendants note that the transfer of property properly was recorded and published in the
newspaper, and they argue that neither they nor Willa or Vincil were under any
obligation to alert the Plaintiffs about the terms of the transfer or about the 1990 or 1981
wills.

12
Willa had no cause of action under either claim to pass on to Susan and David. 10 The

trial court, therefore, erred in not granting Defendants’ motion for JNOV on the ground

that Susan and David’s claims based on the 1990 wills and deeds are barred by the statute

of limitations.

ii. The Trial Court Erred in Substituting the Trustee of J.D.’s Trust
for J.D. After J.D.’s Death

Defendants assert that the trial court erred in not granting their motion for JNOV

on Plaintiffs’ claims against Linda, in her capacity as trustee, as substitute for J.D. The

trial court permitted Plaintiffs to proceed on their claims against J.D. through the trustee

and later instructed the jury: “if you find against defendant J.D. Fry, your verdict must be

against Linda Fry, Trustee of John Delbert Fry Revocable Inter Vivos Trust.” The jury

returned a verdict for Mary against the trustee for $35,000 “under the theory of breach of

fiduciary duty, fraudulent concealment, conversion, and/or unjust enrichment.” 11 The

jury also returned a verdict for Susan and David against the trustee for $5,500 each for

unjust enrichment related to the 1990 deeds and wills. But, as discussed above, Susan

and David’s claims were time-barred.

To the extent that Mary’s claims for Counts II through V allege conduct that

occurred between 1998 and 2006, including that J.D. abused his powers of attorney and

10
Because Mary ultimately did not submit a claim regarding the 1990 deeds or wills, this
analysis is not applied to her. But, because she did sue over these documents initially
when she filed her first petition in 2006, Susan and David assert that their claims relate
back to Mary’s original petition. This Court need not reach this issue because, for the
reasons discussed above, the claims are time-barred regardless whether measured by the
2006 or the 2008 filing dates.
11
See note 5 above regarding the propriety of this joint submission of multiple theories.

13
that J.D. and Linda improperly used J.D.’s powers of attorney to purchase multiple CDs

in his own name with Vincil and Willa’s funds and to cash other CDs owned by Willa

and Vincil that had listed Mary and Arthur as payable-on-death beneficiaries, Defendants

do not claim that they are time-barred. 12 Mary’s claims against Linda as trustee are

barred, nonetheless, because the trial court erred in substituting Linda, as trustee, for J.D.

Section 537.010 allows tort actions for wrongs done to property interests to

survive when the alleged wrongdoer is deceased. It provides in relevant part:

Actions for wrongs done to property or interests therein may be
brought against the wrongdoer by the person whose property or interest
therein is injured … If the wrongdoer is dead, the action also survives and
may be brought and maintained in the manner set forth in section 537.021.

§ 537.010.13 Section 537.021.1(2) requires that if a defendant dies while a property

action is pending, the action, if it continues, must proceed against a personal

12
To the extent that these counts assert misconduct constituting fraud that occurred more
than 15 years prior to suit, however, they would be time-barred for the reasons noted in
the preceding section.
13
The term “property or interests therein” has been interpreted broadly to include injuries
in tort or injuries to economic interests such as in cases of fraudulent disbursing or taking
of money. See, e.g., Breeden v. Hueser, 273 S.W.3d 1 (Mo. App. 2008) (action for
monetary loss due to payment for medical services that were not provided due to fraud
constituted damage to monetary or economic interest in property and survived); Foster v.
Hesse, 43 S.W.2d 891 (Mo. App. 1931) (action against defendant for fraudulent
disbursement of funds to contractor survived defendant’s death); State ex rel Smith v.
Greene, 494 S.W.2d 55 (Mo. banc 1973) (claim for damage to car in accident would
survive death of owner). See also Gray v. Wallace, 319 S.W.2d 582 (Mo. 1959) (survival
of actions for personal injury is intended to change common law that personal injury
claims abate upon death and will be broadly interpreted to include all claims for personal
injury not barred by section 537.030, which provides that “sections 537.010 and 537.020
shall not extend to actions for slander, libel, assault and battery and false imprisonment”).

14
representative of the estate appointed by the probate division, 14 stating in relevant part:

1. The existence of a cause of action for an injury to property … which
action survives the death of the wrongdoer … shall authorize and require
the appointment by a probate division of the circuit court of:
….
(2) A personal representative of the estate of a wrongdoer upon the death of
such wrongdoer; … Should the plaintiff in such cause of action desire to
satisfy any portion of a judgment rendered thereon out of the assets of the
estate of such deceased wrongdoer, such action shall be maintained against
a personal representative appointed by the probate division of the circuit
court and the plaintiff shall comply with the provisions of the probate code
with respect to claims against decedents’ estates ….

As a number of court of appeals cases explain, this means that the probate division

appoints a personal representative in cases in which the assets of the estate potentially are

involved. In re Estate of Hayden, 837 S.W.2d 31, 32 (Mo. App. 1992); Am. Home Assur.

Co. v. Pope, 487 F.3d 590, 605 (8th Cir. 2007), citing Hayden, 837 S.W.2d at 32. 15

Compliance with sections 537.010 and 537.021.1(2) is necessary for a plaintiff to

maintain a cause of action against a deceased defendant after her death. § 537.010;

§ 537.021.1.

Rule 52.13 requires a plaintiff to serve a motion to substitute a party for the

deceased within 90 days after a suggestion of death is filed. If a party is not properly and

timely substituted for the deceased in the manner required by section 537.021.1, Rule

52.13(a)(1) requires that “the action shall be dismissed as to the deceased party without

14
A different procedure applies when the only damages sought are those of the deceased
defendant’s insurer. See § 537.021.1(2). That situation does not exist here and is not
discussed further.
15
“A personal representative of an estate is appointed by the probate division of the
circuit court in the applicable jurisdiction upon the filing of letters of administration with
the court.” Johnson v. Akers, 9 S.W.3d 608, 609 (Mo. banc 2000).

15
prejudice.” Rule 52.13(a)(1).

After J.D.’s death on December 9, 2008, Mary filed suggestions of death on

December 15, 2008 and timely moved for substitution on March 9, 2008. But she moved

to substitute J.D.’s daughter as a defendant. Defendants objected and directed the court

to section 537.021.1(2), which, Defendants noted, controlled the substitution of a

deceased defendant and required the substitution of a personal representative.

Although Missouri law provides one year in which to open an estate after the

decedent’s death, § 473.020.2, the record shows, and the parties do not dispute, that no

estate was opened for J.D. before or after the filing of these pleadings and, consequently,

no personal representative was appointed. After a hearing, the trial court sua sponte

substituted J.D.’s widow, Linda, as trustee of the trust, in J.D.’s place. No party argues

on appeal, nor could one, that section 537.021.1(2) permitted the substitution of the

trustee rather than the personal representative. Instead, Plaintiffs maintain that “it would

have been an exercise in futility to open an estate for J.D. Fry since the information

available to Plaintiffs was that any theoretical estate would have held no assets.” Further,

they say, it was the trial court’s idea to substitute J.D.’s widow as trustee. Therefore,

they argue, it should not be found to be reversible error.

These arguments must fail. Section 537.021 requires the appointment of a

personal representative as substitute if a claim for damages to property or property

interests against the deceased defendant is to survive. § 537.010; Hayden, 837 S.W.2d at

32. That the deceased party’s estate contains little or no property does not change this

requirement. This Court’s decisions applying section 537.020, which governs the

16
substitution of a personal representative for a deceased party in cases involving personal

injury (rather than property) claims, are instructive. In Darrah v. Foster, for example,

this Court stated that even claims for wrongful death or personal injury when the

deceased left no property require the appointment of a personal representative:

Causes of action for wrongful death and for personal injury which survive
the death of the alleged tortfeasor are sufficient to require the appointment
of an administrator even though the deceased left no property and the sole
purpose of the administration is to prosecute actions for death and for
personal injury.

355 S.W.2d 24, 30 (Mo. 1962); see also Clarke v. Organ, 329 S.W.2d 670, 673 (Mo. banc

1959).

That neither Linda nor Delbert opened an estate for J.D. did not prevent Plaintiffs

from opening one. As section 473.020.1 states, “If no application for letters testamentary

or of administration is filed by a person entitled to such letters pursuant to section

473.110 within twenty days after the death of a decedent, then any interested person may

petition the probate division of the circuit court … for the issuance of letters testamentary

or of administration.” Plaintiffs, however, did not do so.

Due to Plaintiffs’ failure to open an estate and have a personal representative

appointed, the trial court was unable to appoint a proper substitute for J.D. Its attempt to

substitute instead the trustee of J.D.’s trust is not permitted by Missouri statute as to these

claims alleging misconduct by J.D. personally. In the absence of the substitution of a

proper party defendant within 90 days after the suggestion of death was filed, Rule 52.13

required the trial court to dismiss the claims against J.D. without prejudice. Rule 52.13;

Rule 44.01(b); Gillespie v. Rice, 224 S.W.3d 608, 612 (Mo. App. 2006).

17
 Because the trial court improperly substituted Linda, as trustee, for J.D., Plaintiffs’

causes of action against J.D. did not survive. § 537.021.1(2). The trial court was

required to dismiss Plaintiffs’ claims against Linda, as trustee, and erred in submitting

them to the jury. This Court’s resolution of this issue requires reversal of the $35,000

judgment in favor of Mary and provides an alternate ground for requiring reversal of the

$5,500 judgments in favor of David and Susan.

B. Plaintiffs’ Appeal

i. Dismissal of Arthur’s Claims

Plaintiffs appeal the trial court’s grant of a directed verdict on Arthur’s claims.

Arthur entered into a release of claims agreement with J.D. in which Arthur released all

known and unknown claims against J.D. in return for $100. The trial court found that

Arthur entered the release agreement knowingly, voluntarily, and freely, with knowledge

of all relevant facts, that the agreement was supported by adequate consideration, and that

it released and extinguished all of Arthur’s claims. The court further found that Arthur

had not met his burden of providing that the release agreement was invalid or

unknowingly signed.

On appeal, Arthur argues that these rulings were improper because the record

raised questions of fact as to whether he signed what is now purported to be the release

agreement and whether he intended to release unknown claims. He alleges this is key

because he only signed the agreement in return for being promised he would not be

brought into the suit, he did not realize that in signing the agreement he was releasing

unknown claims, and that had he known he was doing so or had he known what he knows

18
now about the circumstances of the 1990 deed and will, the $100 he received as

consideration would not have been adequate.

The record does not support these arguments. When a party against whom a

release is asserted admits signing the release, the release purports to rest upon

consideration, and the release is admitted into evidence, the release is presumed to be

valid, and the party contesting the release has the burden of proving otherwise. Hatfield

v. Cristopher, 841 S.W.2d 761, 766 (Mo. App. 1992); Blackstock v. Kohn, 994 S.W.2d

947, 954 (Mo. banc 1999) (“Executed releases are presumptively valid”). The release

expressly states that, in return for $100, Arthur released “any and all claims … of any

kind or nature whatsoever, known or unknown, and particularly on account of all

damages.” The release further specifically states that it includes any claims pertaining to

real estate conveyances between Vincil and Willa and Defendants, transactions by J.D. as

attorney-in-fact for Vincil and Willa, and transactions related to the purchase or

disposition of the proceeds from any certificates of deposit or contents of the safe deposit

box by any of the Defendants.

While Arthur did not initial the first two pages of the three-page release agreement

and said “it could be possible” he did not see them and he did not recall signing the

release, he also testified that he did sign it, that it contained his signature, and that he did

not ask J.D. about the details of Mary’s lawsuit before doing so. The release is clear that

it releases known and unknown claims. It also is clear that the only consideration is

$100; it does not say anything about not drawing Arthur into a lawsuit as a further

consideration for the release. And, while Arthur now claims that $100 is not adequate

19
consideration, he alleges no facts and cites no authority that would permit this Court to

second-guess the amount he voluntarily chose to take in settlement.

In sum, Arthur alleges the release was invalid for various reasons, but the evidence

presented does not support any of the reasons he provides for finding such invalidity.

The trial court did not err in finding that he failed to satisfy his burden to show that the

release was invalid.

Even assuming this Court had found the release agreement invalid and allowed

him to proceed on his claims, however, the claims he sought to assert are the same ones

that this Court has found to be barred by the statute of limitations and Plaintiffs’ failure to

substitute a proper party for J.D. Accordingly, even were the release invalid, he has

failed to show prejudicial error.

ii. Dismissal of Claim Against Fry Grain Enterprises

Sustaining in part Defendants’ motion for directed verdict at the close of all the

evidence, the trial court dismissed Plaintiffs’ conversion claim against Fry Grain

Enterprises. Fry Grain operated on the 200-acre and 160-acre tracts of land in which

Willa held a life estate. In their petition, Plaintiffs alleged that while farming this land,

Fry Grain deprived Willa of United States Department of Agriculture (USDA) farm

payments, rent, and income. As a result, Plaintiffs alleged, Mary and Arthur received

less money under Willa’s 1990 will than they otherwise would have received.

Dismissing the claim, the trial court ruled that the claims were not supported by the

evidence and the claims alleged conversion of property that is not able to be converted.

Plaintiffs argue that USDA payments are convertible. They argue further that Fry

20
Grain improperly received USDA payments. Their point relied on fails to explain

wherein and why this entitles them to damages, however, as required by Rule 84.04(d),

which requires that the point relied on “state concisely the legal reasons for [the] claim of

reversible error” and “explain in summary fashion why, in the context of the case, those

legal reasons support the claim of reversible error.” See Smith v. City of St. Louis, 395

S.W.3d 20, 28 (Mo. banc 2013).

The argument section of this point is no better. It fails to cite any facts showing

that Plaintiffs are entitled to any part of the USDA payments, rent, or income from the

land. Plaintiffs’ brief focuses on the time period between 1986 and 1988, when Delbert

allegedly altered the USDA contract to give Arthur’s 50-percent share of the 1987

payment to Fry Grain and Arthur quit farming the land. Plaintiffs admit they knew that

the payments went to Fry Grain rather than Willa or Arthur at that time. They do not

specifically allege any facts pertaining to conversion that occurred after Arthur stopped

farming the land in 1988. Therefore, they make no showing that they brought their

claims within the five-year statute of limitations for conversion. See § 516.120(1).

And, while Plaintiffs’ arguments on appeal seem to be premised on the assumption

that this conversion continued as to USDA payments after 1988, their brief fails to cite

any specific evidence that any USDA payments were made after 1988 or any authority

showing that Mary or Arthur legally were entitled to such payments. (Defendants claim

to the contrary.) Plaintiffs’ single-paragraph discussion of the alleged conversion of rent

and income is particularly bereft of evidence or authority supporting such a claim. It is

not this Court’s duty to search the record for such evidence or to make Plaintiffs’

21
argument for them.

Further, any claim to the payments accrued in Willa and, therefore, upon her death

would belong to Willa’s estate, if the claim was not time-barred. Plaintiffs offer no legal

authority for their claim that they can sue for these payments because, had the payments

gone to Willa, they believe that she would have passed them on in her will.

iii. Dismissal of Claims Against Delbert

Only three claims remained against Delbert after Plaintiffs dropped Count VII

during trial: one brought by Susan and David for fraud and undue influence arising out of

the 1990 deeds and wills and two brought by Arthur arising out of Arthur’s release of

claims agreement. As discussed above, the trial court properly dismissed Arthur’s claims

relating to the release agreement. The trial court also properly dismissed Susan and

David’s claims for fraud based on the 1990 will and deeds because the reasons those

claims are barred by the statute of limitations apply equally to Delbert. 16 Accordingly,

no submissible claims remained against Delbert.

iv. Mary’s Equitable Claim

After the jury returned its verdicts, Plaintiffs moved the trial court to add to the

final judgment a list of personal property that Mary sought to recover from the family

homestead. The motion cited two counts of the petition that sought money damages or,

in the alternative, an order for delivery of personal property. The court never entered an

16
As Plaintiffs’ claims against Delbert were time-barred, this Court need not further
address the additional issue raised as to whether, had the claims not been barred,
Plaintiffs failed to make a submissible case that Delbert had any involvement in the
alleged fraud or undue influence.

22
order on this claim, and Plaintiffs argue that this was error.

While Mary argues that the Defendants knew she wanted this property and that

she included it on a list she prepared of personal property she wanted from her parents’

home, she has not identified why she had a legal or equitable right to receive this specific

property, as opposed to a certain percentage of the value of all the property bequeathed.

In fact, Plaintiffs cite no law for the proposition that Mary was entitled to an order

directing Defendants to give her this property. Further, a review of the record does not

show that Willa left Mary this specific property in her will or directed it be held in trust

for her or that the will referred to a list of personal property that said these items were to

be left to Mary. See § 474.333 (permitting will to dispose of personal property by

separate list). In the absence of some legal or equitable basis for the trial court to be

required to award this property to Mary, it did not err in failing to do so.

Even had Mary identified a basis for her claim to these specific items, she chose

instead to seek a money judgment for the portion of Willa’s property that she claimed

should have gone to her. When a party has the right to pursue one of two inconsistent

remedies and makes an election, institutes suit, and prosecutes it to final judgment, that

party thereafter cannot pursue another and inconsistent remedy. Trimble v. Pracna, 167

S.W.3d 706, 711 (Mo. banc 2005). The purpose of the election of remedies doctrine is to

prevent double recovery for a single injury. Whittom v. Alexander-Richardson P’ship,

851 S.W.2d 504, 506 (Mo. banc 1993). To illustrate:

[T]he plaintiff whose horse has been stolen can sue the thief for damages or
for conversion, or he can bring replevin … to get the horse back. But he
cannot do both, for this would give him both the value of the horse and the

23
 horse itself, a form of double recovery.

Id., quoting DAN B. DOBBS, REMEDIES, § 1.5 at 14 (1973).

In the petition, Mary requested either money damages or an order for delivery of

personal property. Because Mary elected her remedy of monetary damages and received

a verdict for those damages, the election of remedies doctrine precludes her from

pursuing her alternative remedy. 17

v. Punitive Damages

Plaintiffs appeal the trial court’s refusal to instruct the jury on punitive damages.

Punitive damages may not be awarded in the absence of nominal or actual damages. See,

e.g., Compton v. Williams Bros. Pipeline Co., 499 S.W.2d 795, 797 (Mo. 1973) (“[A]ctual

or nominal damages must be recovered before punitive damages can be recovered”);

Giles v. Riverside Transp., Inc., 266 S.W.3d 290, 296 (Mo. App. 2008) (“[I]t is

fundamental that a determination of liability is a prerequisite to a finding of damages,

such that an award of damages cannot survive independent of the accompanying

determination of liability. A plaintiff must prevail on his or her underlying claim to

submit punitive damages to the jury”) (internal citations omitted).

Because this Court reverses the damage judgments against Defendants, Plaintiffs

are entitled to no actual damages and the punitive damages issue is rendered moot.

17
While Mary argues that the jury was aware that she would request the specific property
after the verdicts were returned and, therefore, did not include the value of that property
in its verdict, the instructions directed the jury to return the damages to which Mary was
entitled under the evidence; the instructions did not tell the jury to subtract out the value
of the specific items. In any event, as noted, Mary elected her remedy of money
damages, and her claim was barred for the reasons noted.

24
IV. CONCLUSION

The judgment on the jury verdict for Plaintiffs is reversed, and the case is

remanded for entry of judgment for Defendants on those claims. The trial court’s

dismissal of Plaintiffs’ other claims by directed verdict, refusal to submit punitive

damages, and refusal to enter an order on Mary’s equitable claim are affirmed.

_________________________________
LAURA DENVIR STITH, JUDGE

Russell, C.J., Breckenridge, Fischer,
Draper and Teitelman, JJ., concur.
Wilson, J., not participating.

25