Meyer v. Purcell

405 S.W.3d 572, 2013 WL 3667514, 2013 Mo. App. LEXIS 842
Missouri Court of Appeals·Decided July 16, 2013·No. No. ED 97630·Published·Cited by 8 cases

Opinion

LISA S. VAN AMBURG, Judge.

INTRODUCTION

David S. Purcell and the law firm of Purcell & Amen LLC (collectively “Attorneys”), appeal from the judgment entered following a jury verdict in favor of the estates and trusts of Steve Boliance and Anna Holtz (“Estates”) on claims for legal malpractice. Attorneys contend the trial court erred in: submitting to the jury the issue of punitive damages, jury instructions regarding punitive damages, submitting Estates’ legal malpractice claims, excluding and admitting certain evidence, entering judgment against Attorneys for legal malpractice and denying their motion for new trial. We reverse the award of punitive damages and affirm in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2000, Boliance and Holtz created estate plans that included wills, trusts, and powers of attorney. In these estate plans, Boliance and Holtz designated how they intended their property to be distributed upon their deaths, choosing each other as their first personal representative, trustee, and attorney-in-fact, and selecting successor representatives, trustees, and attorneys-in-fact.

In the fall of 2007, Boliance and Holtz executed powers of attorney and medical directives prepared by Purcell. These new powers designated their great niece, Susan Zehnle, (“Niece”) as their primary attorney-in-fact.

Following execution of these powers of attorney, Niece consolidated Boliance and Holtz’s respective assets into two separate bank accounts and designated herself as a joint account holder on each account. Niece also retitled the house owned by Boliance and Holtz, adding herself as joint tenant, pursuant to the advice and counsel of Attorneys. Soon thereafter, Boliance died on December 4, 2007, and Holtz died on December 7, 2007. Upon their deaths, as a result of the retitling, Niece held sole title to and possession of substantially all of Boliance’s and Holtz’s property.

After re titling the property, Niece discovered Boliance’s and Holtz’s prior estate plans while searching the house for suitable burial clothing. She turned these documents over to Purcell on December 8, 2007. Purcell then contacted Estates’ personal representatives and trustees in a letter dated December 10, 2007, informing that Niece had retitled Boliance’s and Holtz’s assets to include herself in joint capacity to avoid probate. Thereafter, Estates’ representatives and trustees contacted Purcell in a letter dated December 21, 2007, and demanded an accounting and return of all Boliance’s and Holtz’s assets held by Niece. Over the course of the [575] next two months, neither Purcell nor Niece provided an accounting or returned Boliance’s and Holtz’s assets to Estates, despite Estates’ repeated demands.

In March 2008, Estates filed a petition against Niece in probate court for discovery of assets. In May 2008, following the initiation of litigation by Estates solely against Niece for accounting and discovery of assets, Niece provided an accounting and returned assets totaling $860,689.96 to Estates. In the effort to recover these assets, Estates paid $256,896 in litigation fees to their attorney pursuant to a contingency fee agreement.

Thereafter, Estates sued Attorneys for legal malpractice, alleging Purcell was negligent for causing the transfer of Boliance’s and Holtz’s assets to Niece without regard to their estate plans and for failing to advise or assist Niece in providing an accounting or returning such assets to Estates. Following trial, the jury returned a verdict in favor of Estates finding Attorneys jointly and severally liable and awarding Estates $256,896, in compensatory and $600,000, in punitive damages. Attorneys subsequently filed a motion for judgment notwithstanding the verdict and a motion for new trial. The trial court denied these motions. Attorneys appeal.1

DISCUSSION

In their first point, Attorneys contend the trial court erred in submitting the case to the jury on the issue of punitive damages because the evidence was insufficient to support an award of punitive damages. Specifically, Attorneys claim Estates failed to present the required clear and convincing evidence that Purcell acted with the requisite evil intent sufficient to support an award of punitive damages. We agree.

Whether there is sufficient evidence to support the submission of a punitive damages instruction is a question of law which we review de novo. Scott Salvage Yard, LLC v. Gifford, 382 S.W.3d 134, 137 (Mo.App. E.D.2012). In reviewing the submissibility of punitive damages, we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the plaintiff and disregard all contrary inferences. Kaplan v. U.S. Bank, N.A., 166 S.W.3d 60, 73 (Mo.App. E.D.2003).

Punitive damages are ordinarily not recoverable in actions for negligence “because negligence, a mere omission of the duty to exercise care, is the antitheses of willful or intentional conduct.” Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc./Special Products, Inc., 700 S.W.2d 426, 435 (Mo. banc 1985). However, if a defendant intentionally commits a wrongful act and knows at the time that it is wrongful, evil motive may be implied if he acted with reckless indifference to the rights or interests of others. Hoyt v. GE Capital Mortg. Servs., Inc., 193 S.W.3d 315, 322 (Mo.App. E.D.2006); Burnett v. Griffith, 769 S.W.2d 780, 788 (Mo. banc 1989).

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Meyer v. Purcell, 405 S.W.3d 572, 2013 WL 3667514, 2013 Mo. App. LEXIS 842 (Mo. Ct. App. 2013).

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