                                                    In the
                               Missouri Court of Appeals
                                          Western District
 MICHAEL DOUGLASS,                                        )
                                                          )
                   Respondent,                            )   WD81633
                                                          )
 v.                                                       )   OPINION FILED: March 5, 2019
                                                          )
 PHILLIP DOUGLASS,                                        )
                                                          )
                     Appellant.                           )

                Appeal from the Circuit Court of Jackson County, Missouri
                          The Honorable Marco A. Roldan, Judge

Before Division One: Cynthia L. Martin, Presiding Judge, Victor C. Howard, Judge and
                            Thomas H. Newton, Judge


        Phillip Douglass ("Phillip")1 appeals a judgment imposing a constructive trust on

insurance proceeds in favor of Michael Douglass ("Michael"). Phillip argues the trial court

erred in imposing the constructive trust because some of the trial court's factual findings

were not supported by substantial evidence. Finding no prejudicial error, we affirm.




        1
          Because Phillip Douglass shares a surname with his brother, Michael, we have elected to refer to both
parties by their first name throughout this Opinion. No familiarity or disrespect is intended.
                               Factual and Procedural Background2

        In 1996, Michael bought a home located at 1208 Ward Parkway in Blue Springs

("Ward Parkway property"). Michael bought the home so his brother, Phillip, would have

a place to live. In 1999, Michael encountered legal problems, and conveyed the Ward

Parkway property to other family members, with the expectation that they would hold title

on his behalf. In 2001, those family members conveyed the Ward Parkway property to

Phillip. In 2004, Phillip sold the Ward Parkway property for $77,854.46. Michael claimed

the proceeds of the sale of the Ward Parkway property were being held by Phillip for

Michael's benefit.

        In 2005, Michael decided to buy another home so Phillip would have a place to live.

At an auction in April of 2005, Michael was the high bidder for a home located at 1003

NW B Street in Blue Springs ("NW B Street property"), for which he agreed to pay

$108,000. Michael paid a $3,000 down-payment on the day of the auction. Between the

date of the auction and closing, Michael amended the purchase contract to add Phillip as

an additional buyer. At closing, the $77,854.46 sale proceeds from the Ward Parkway

property were applied against the purchase price for the NW B Street property. In addition,

$20,000 was paid from a joint account owned by Michael and Phillip. Phillip contributed

the remaining balance of the purchase price. Title to the NW B Street property was

conveyed to Michael and Phillip as joint tenants with rights of survivorship.




        2
         We view the evidence in the light most favorable to the trial court's judgment. Medical Plaza One, LLC v.
Davis, 552 S.W.3d 143, 147 n.1 (Mo. App. W.D. 2018).

                                                        2
       Phillip lived at the NW B Street property. Phillip was responsible for maintaining

homeowners' insurance for the property, and for paying real estate taxes on the property.

       Unbeknownst to Michael, Phillip executed a quitclaim deed in 2012 transferring

title to the NW B Street property to ASTI Corporation ("ASTI"). Phillip signed a quitclaim

deed for himself and for Michael as Michael's purported power of attorney. In 2013, ASTI

executed a quitclaim deed transferring title to the property back to Phillip. As a result,

Michael's name was no longer on the title to the NW B Street Property.

       In early August 2016, Phillip borrowed $12,887.43 from Lyle Odo ("Odo") to pay

back-due real estate taxes on the NW B Street property. In exchange, Odo recorded a deed

of trust against the NW B Street property. As a result of this loan, a tax sale for the property

was averted. Odo later learned that homeowners' insurance premiums were due and

unpaid. Odo advanced $1,642 pursuant to the terms of the deed of trust to ensure that the

NW B Street property remained insured.

       In 2016, Phillip executed a beneficiary deed naming his girlfriend, Jennifer Gaulter

("Gaulter") the beneficiary grantee of the NW B Street property on Phillip's death. Gaulter

was living with Phillip in the home.

       On November 1, 2016, Michael filed a petition seeking to quiet title in the NW B

Street property or in the alternative, awarding him a first lien on the property to the extent

of his interest in the property. Michael's lawsuit named Odo and Gaulter as additional

defendants. Odo filed counterclaims and crossclaims asserting his right to collect the

amounts loaned to Phillip, along with interest.



                                               3
        Two days before trial, a fire destroyed the home on the NW B Street property. The

homeowners' insurer issued two checks in the total amount of $140,000. The first, a check

in the amount of $107,271.75, was made payable to Phillip and Odo. The second, a check

in the amount of $32,728.25, was made payable to the City of Blue Springs. 3 Michael

secured an order requiring the check payable to Phillip and Odo to be deposited into the

court registry.

        Michael thereafter filed an amended petition. The amended petition again sought

to quiet title in the NW B Street property, but also asserted a right to share in the

homeowners' insurance proceeds issued as a result of the fire loss, and sought to partition

the property.

        The dispute was set for trial to the court on January 10, 2018. Prior to trial, Gaulter

was dismissed as a defendant, having disclaimed any interest in the NW B Street property.

In addition, Odo dismissed his counterclaims and crossclaims, and was dismissed as a

defendant, based on a settlement wherein he was paid $22,500 from the funds held in the

court registry in exchange for release of his deed of trust. As a result of this settlement,

$84,771.75 remained on deposit in the court registry, and $32,728.25 remained held by the

City of Blue Springs.

        At trial, Phillip stipulated that the conveyance of the NW B Street Property to ASTI

was void, and agreed Michael should be restored to title in the property as a joint tenant

with right of survivorship. Other evidence was presented, and the case was taken under


        3
         The City of Blue Springs had an interest in ensuring that the fire damaged home on the NW B Street
property was either fully demolished or rebuilt. The City of Blue Springs agreed that the insurance proceeds
deposited with it would be released upon issuance of a permit to rebuild the home.

                                                        4
advisement. On March 2, 2018, the trial court entered judgment in favor of Michael and

against Phillip ("Judgment"). The Judgment imposed a constructive trust in favor of

Michael in the amount of 50% of the remaining homeowners' insurance proceeds, and

ordered that the homeowners' insurance proceeds on deposit in the court registry and held

by the City of Blue Springs be paid in equal shares to Michael and Phillip. The trial court

ordered Michael's name restored to title for the NW B Street property; declared that no

other person or entity had an interest in the property; and ordered a partition sale of the

property with the net proceeds of sale to be divided equally between Michael and Phillip.

       Phillip timely appealed.

                                   Standard of Review

       "On review of a court-tried case, an appellate court will affirm the circuit court's

judgment unless there is no substantial evidence to support it, it is against the weight of

evidence, or it erroneously declares or applies the law." Ivie v. Smith, 439 S.W.3d 189,

198-99 (Mo. banc 2014) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).

"Claims that there is no substantial evidence to support the judgment or that the judgment

is against the weight of evidence necessarily involve review of the trial court's factual

determinations." Winston v. Winston, 449 S.W.3d 1, 6 (Mo. App. W.D. 2014). Under

these fact-based standards of review, a reviewing court defers to the trial court's assessment

of the evidence because the trial court is "in a better position not only to judge the

credibility of witnesses directly but also their sincerity and character and other trial

intangibles that may not be revealed by the record." Id. "A reviewing court will overturn



                                              5
a trial court's judgment under these fact-based standards of review only when the court has

a firm belief that the judgment is wrong." Id.

                                                      Analysis

         In Phillip's sole point on appeal, he argues that the trial court erred by imposing a

constructive trust on the homeowners' insurance proceeds and ordering those proceeds to

be split evenly with Michael because "crucial" factual findings in the Judgment "were

completely unsupported by the evidence and the record,"4 and as a result, clear, cogent,

and convincing evidence did not support the imposition of a constructive trust.5

Specifically, Phillip challenges the trial court's factual findings in paragraphs 10, 12, and

23 of the Judgment,6 as follows:

         10.   It was not disputed that Plaintiff Michael Douglass contributed a
         down payment of $3,000 at the time of signing the contract to purchase the
         Property.

         12.    The parties do not dispute that Plaintiff Michael Douglass contributed
         and paid an additional $10,000.00, representing one-half of $20,000.00 paid
         from a joint business checking account with the Defendant Phillip Douglass,
         towards the purchase at the time of closing.



         4
            Phillip's point relied on complains that the findings challenged were "completely unsupported by the
evidence and the record," the functional equivalent to a claim that the findings were not supported by substantial
evidence. "Substantial evidence is evidence that, if believed, has some probative force on each fact that is necessary
to sustain the circuit court's judgment." Ivie, 439 S.W.3d at 199. "No contrary evidence need be considered on a
substantial-evidence challenge, regardless of whether the burden of proof at trial was proof by 'a preponderance of
the evidence' or proof by 'clear, cogent, and convincing evidence.'" Id. at 200.
          5
            Phillip has not challenged the Judgment's restoration of Michael to title to the NW B Street property, or the
order to partition the property and divide the net proceeds of sale equally.
          6
            In cases tried without a jury, Rule 78.07(b) does not require "a motion for a new trial nor a motion to
amend the judgment . . . to preserve any matter for appellate review, if the matter was previously presented to the
trial court." (Emphasis added.) Rule 78.07(c) requires a motion to amend the judgment to preserve "allegations of
error relating to the form or language of the judgment." Phillip's claim that factual findings in the Judgment were
erroneous insofar as they characterize evidence as "not disputed" is arguably a claim of error relating to the "form or
language of the judgment." Phillip did not file a Rule 78.07(c) motion, and thus did not bring his concerns to the
trial court's attention. Though his claim of error is arguably not preserved for appellate review, we elect, ex gratia,
to review the merit of Phillips' point on appeal.

                                                           6
       23.    Defendant Lyle Odo, as a lender, paid the premium to State Farm Fire
       and Casualty Company to keep the Dwelling insured. The policy was in the
       name of the Defendant alone, although at the time of the purchase of the
       property the policy was purchased in the name of both parties.

       To prevail on appeal, Phillip must not only demonstrate that these challenged factual

findings are "completely unsupported by the evidence and the record" as alleged in his

point relied on, but as well that the findings, if erroneous, were essential to the imposition

of a constructive trust. See In re Estate of Gangloff, 743 S.W.2d 498, 502 (Mo. App. E.D.

1987) (holding that a trial court's erroneous factual finding was harmless error under Rule

84.13(b) when it was not essential to the trial court's ultimate conclusion); see Rule

84.13(b)7 ("No appellate court shall reverse any judgment unless it finds that error was

committed by the trial court against the appellant materially affecting the merits of the

action."). Phillip cannot sustain this burden.

       Our courts have long recognized the constructive trust as a "fluid, flexible device"

that may "be employed to remedy many different types of injustice." Brown v. Brown, 152

S.W.3d 911, 918 (relying on Durwood v. Dubinsky, 361 S.W.2d 779, 790 (Mo. 1962);

Musser v. Gen Realty Co., 313 S.W.2d 5, 9 (Mo 1958); Wier v. Kansas City, 204 S.W.2d

268, 270 (Mo. 1947)). "Technically, constructive trusts are not trusts at all but equitable

devices employed by courts . . . 'regardless and independently of any actual or presumed

intention of the parties to create a trust.'" Id. at 916 (quoting Schultz v. Schultz, 637 S.W.2d

1, 4 (Mo. banc 1982)). Constructive trusts are used by courts to "'compel one who unfairly

holds a property interest to convey that interest to another to whom it justly belongs.'" Id.


       7
           All rule references are to Missouri Court Rules, Volume I -- State, 2018 in effect at the time of trial.

                                                             7
(quoting Kerber v. Rowe, 156 S.W.2d 925, 927 (Mo. 1941)). Though constructive trusts

may be imposed in reliance on a finding of actual or constructive fraud, or a finding of a

fiduciary or confidential relationship, the "court is not bound by an unyielding formula" in

imposing a constructive trust. Id. at 917-18 (quoting Durwood, 361 S.W.2d at 790);

(relying on Estate of Bean v. Hazel, 973 S.W.2d 290, 292 (Mo. banc 1998); and Fix v. Fix,

847 S.W.2d 762 (Mo. banc 1993)).            Instead, "the touchstone for imposition of a

constructive trust is injustice or unfairness, which may take the form or be the product of

fraud (actual or constructive), abuse of a fiduciary or constructive relationship, undue

influence, or unjust enrichment." Id. at 918.       "[I]t is not necessary that the unjustly

enriched party be found to have engaged in legal wrongdoing or have had wrongful or

malicious intent." Id. Thus, "'[t]he forms and varieties of constructive trusts are practically

without limit.'" Id. (quoting Musser, 313 S.W.2d at 9). "'[N]o exhaustive catalog can be

made of the types of wrongful retention of property which have moved [courts] to decree

a constructive trust. Wherever equity finds such a wrongful holding, it will give relief,

whether the type of injustice be new or old.'" Id. (quoting Wier, 204 S.W.2d at 270).

       Here, the Judgment found that the Ward Parkway property was originally purchased

by Michael for Phillip's use, and that the proceeds of the sale of that property in the amount

of $77,854.46 were applied to the purchase price for the NW B Street property. [FOF 4,

11] The Judgment found that Michael and Phillip provided the money necessary to

purchase the NW B Street property, and that the NW B Street property was conveyed to

Phillip and Michael as joint tenants with right of survivorship. [FOF 13] The Judgment

found that Phillip admitted that the NW B Street property should be sold by partition, with

                                              8
the proceeds divided between Michael and Phillip. [FOF 37] And the Judgment found

that but for the fire which destroyed the home on the NW B Street property, the value of

the property sold by partition would have been increased by the value of the home. [FOF

36] In addition to these express findings, we are required to consider issues as to which no

specific findings were made to have been found in accordance with the result reached. Rule

73.01(c). Here, the Judgment acknowledged that Phillip disputed Michael's contention that

Phillip was holding the proceeds of the sale of the Ward Parkway property for Michael's

benefit. [FOF 7] The Judgment did not expressly resolve this dispute, though it noted

those proceeds were applied to the purchase of the NW B Street property. In accordance

with Rule 73.01(c), we assume that the trial court found that the proceeds of the sale of the

Ward Parkway property should be attributed to Michael, as that would be consistent with

the result reached by the Judgment.8

         Phillip has not challenged any of these factual findings on appeal.9 Yet, these

unchallenged factual findings constitute substantial evidence supporting the imposition of

a constructive trust in favor of Michael awarding him 50% of the remaining homeowners'


         8
            Phillip did request findings of fact and conclusions of law in the time and manner required by Rule
73.01(c). However, though the request for findings of fact identified the issues as to which Phillip sought an express
finding, the identified issues did not include resolution of whether Phillip was holding the proceeds of the sale of the
Ward Parkway property for Michael. We thus revert to the remainder of Rule 73.01(c) to find that disputed issue
was resolved in a manner that is consistent with the result reached by the Judgment.
          9
            Phillip does allege in footnotes in the argument portion of his brief that the trial court's factual finding in
paragraph 11, which states that the proceeds from the sale of the Ward Parkway property were applied to the
purchase price for the NW B Street property, and which thus implies that those proceeds are attributable to Michael,
is collaterally undermined by the erroneous findings in paragraphs 10 and 12 of the Judgment. However, Phillip's
point relied on does not identify paragraph 11, or the implication reasonably drawn from paragraph 11, as
challenged factual findings on appeal. Rule 84.04(e) provides that "[t]he argument [discussing a point relied on]
shall be limited to those errors included in the "Points Relied On." "'We do not review arguments and issues raised
in the argument under a point that are not fairly encompassed by that point.'" Johnson v. Mo. Dep't of Corrections,
534 S.W.3d 869, 873 (Mo. App. W.D. 2017) (quoting Nichols v. Div. of Emp't Sec., 399 S.W.3d 901, 904 (Mo. App.
W.D. 2013)).

                                                            9
insurance proceeds on deposit in the court registry and held by the City of Blue Springs (a

total of $58,749.65 as of the time of the Judgment). The evidence supported the trial court's

conclusion that it would be unjust and unfair to permit Phillip to retain all of the

homeowners' insurance proceeds where the majority of the funds used to acquire the NW

B Street property came from the sale of a property Michael had paid for; where the NW B

Street property was jointly titled in the name of Michael and Phillip at the time it was

purchased; and where Phillip admitted that the NW B Street property, which original

included the home destroyed by fire, should be sold by partition with the proceeds of sale

evenly divided between Phillip and Michael.

       It is thus immaterial whether the factual findings in paragraphs 10, 12 and 23 of the

Judgment are "completely unsupported by the evidence and the record." Though the

Judgment's imposition of a constructive trust is furthered by the findings in paragraphs 10

and 12 of the Judgment, which attribute $3,000 and $10,000 of the purchase price for the

NW B Street property to Michael, these findings are not essential to the Judgment's

imposition of a constructive trust for the reasons explained, above. In addition, even if the

trial court erroneously found in paragraph 23 of the Judgment that Michael's name was on

the homeowners' policy at the time the NW B Street property was purchased, a constructive

trust may be imposed on insurance proceeds following the destruction of co-owned

property even though both owners are not designated as loss payees on the insurance




                                             10
policy. See State Automobile and Casualty Underwriters v. Johnson, 766 S.W.2d 113,

124-25 (Mo. App. S.D. 1989).10

        Because it is immaterial to the Judgment's imposition of a constructive trust whether

the factual findings in paragraphs 10, 12, and 23 are "completely unsupported by the

evidence and the record," we need not further address whether substantial evidence in the

record supports the findings.

        Point denied.

                                                  Conclusion

        The trial court's Judgment is affirmed.



                                                     __________________________________
                                                     Cynthia L. Martin, Judge


All concur




         10
            Matlock v. Matlock, 815 S.W.2d 110 (Mo. S.D. 1991) distinguishes State Automobile & Casualty
Underwriters v. Johnson, 776 S.W.2d 113 (Mo. App. S.D. 1989), noting it was "based upon a determination of
constructive fraud." Matlock, 815 S.W.2d at 116. However, Matlock did not hold that a constructive trust cannot be
imposed on a theory of unjust enrichment. Instead, Matlock affirmed the trial court's decision to forego imposition
of a constructive trust because no unjust enrichment was found. Id.

                                                        11
