          IN THE MISSOURI COURT OF APPEALS
                  WESTERN DISTRICT
MIGNON L. LAMBLEY, ET AL.,                            )
                                                      )
                  Appellants,                         )
                                                      )
v.                                                    )        WD82645 (Consolidated with WD82652)
                                                      )
KIM L. DIEHL, TRUSTEE, ET AL.,                        )        Opinion filed: June 9, 2020
                                                      )
                  Respondents.                        )

        APPEAL FROM THE CIRCUIT COURT OF BATES COUNTY, MISSOURI
                THE HONORABLE HAROLD L. DUMP, II, JUDGE

                       Division Three: Anthony Rex Gabbert, Presiding Judge,
                     Edward R. Ardini, Jr., Judge and W. Douglas Thomson, Judge

         This action involves a dispute between siblings regarding the administration of their late

parents’ trusts, both of which named Respondent Kim Diehl as successor trustee. Appellants

Mignon Lambley and Sydney Burch filed a petition in the Circuit Court of Bates County seeking

to remove their brother Kim1 as successor trustee and requesting financial restitution for Kim’s

personal use of the trusts’ assets. Kim filed counter- and cross-claims asserting counts of quantum

meruit, unjust enrichment, and contribution, as well as seeking a declaration of rights and

instructions from the trial court. After a bench trial, the trial court entered its judgment denying

Mignon and Sydney’s claims and finding in favor of Kim on each of his claims. Mignon and


1
  Because many of the individuals involved in this litigation share the same last name, we use first names for ease of
reference. No familiarity or disrespect is intended.
Sydney appeal. We affirm in part, reverse in part, and remand for further proceedings consistent

with this opinion.

                                Factual and Procedural Background2

                                          Terms of the Trusts

        Raymond O. Diehl and Phyllis S. Diehl, the parents of the parties to this action, were

farmers, and the bulk of their assets were farmland, livestock, and farming equipment. On February

14, 1995, Phyllis executed the Phyllis S. Diehl Revocable Inter Vivos Trust (“Phyllis Trust”) and

Raymond executed the Raymond O. Diehl Revocable Living Trust (“Raymond Trust”). Phyllis

was the named grantor and trustee of the Phyllis Trust and Raymond was the named grantor and

trustee of the Raymond Trust. Both trusts named Kim as the successor trustee. Each trust was

revocable until the death of the grantor, at which point the trust became irrevocable.

        Phyllis died on January 31, 2005. The Phyllis Trust provided that the following shall occur

upon her death:

                     ITEM VI – PROVISIONS AFTER GRANTOR’S DEATH

                 After the death of the Grantor, the net income derived from the Trust Estate,

        together with the principal thereof, shall be held, handled, divided and distributed

        as follows, to-wit:

                                                     ...

        2. During Lifetime of Spouse. During the lifetime of Raymond O. Diehl, the Trustee
        shall pay over and deliver to him the net income from the Trust Estate at least
        annually. Should the Trustee in the Trustee’s sole discretion, deem that the
        aforesaid payments, together with such other income as my said spouse may have,
        is insufficient at any time due to sickness, emergency, or other compelling
        circumstances, properly to provide health, education, support, or maintenance for
        said spouse, then in addition to the above, I authorize and empower my Trustee to
        use, pay to, apply or expend for my said spouse, such part of the principal of the

2
 We state the evidence in the light most favorable to the judgment. See Howard Cnty. Ambulance Dist. v. City of
Fayette, 549 S.W.3d 1, 4 (Mo. App. W.D. 2018).

                                                      2
        Trust Estate as in the sole discretion of the Trustee is deemed necessary and
        advisable under said circumstances.

        3. After Death of Spouse. After the death of Raymond O. Diehl, or upon the death
        of the Grantor if Raymond O. Diehl shall predecease her, the principal and income
        of the Trust Estate will be managed and distributed as follows:

                 (a) The Trustee may make adequate reserves for and pay the expenses of
                     the last illness, funeral, and marker of my spouse. . . . .

                 (b) The remaining principal and interest of the Trust Estate will be paid over
                     and distributed free of trust, in equal shares, to Grantor’s children, Kim
                     L. Diehl, Sydney Burch, and Mignon Diehl. . . .

The assets held by the Phyllis Trust that are relevant to this action include a John Deere 4560

tractor and several tracts of real property. The parties refer to these tracts as “H Highway”

(approximately 80 acres), “Wilson Place” (approximately 306 acres), “Ossie” (approximately 137

acres) and “Ralph” (approximately 40 acres).3 Collectively, we refer to this real property as the

“Phyllis Trust property.”

        As originally executed, the Raymond Trust—like the Phyllis Trust—provided that upon

the death of both spouses, “[t]he remaining principal and interest of the Trust Estate will be paid

over and distributed free of trust, in equal shares to Grantor’s children, Kim L. Diehl, Sydney

Burch, and Mignon Diehl.” However, on May 12, 2010, Raymond amended the trust provisions

relating to the distribution of the Raymond Trust’s assets upon his death. The amended provisions

provided that:

                                     ARTICLE VII/VIII AMENDED

                                                       ...

        (2) Final Distribution. The principal and interest of the trust estate will thereafter
        as promptly as is reasonably feasible following the conclusion of any tax returns


3
  At the time of Phyllis’s death, the only real property held by the Phyllis Trust was Wilson Place and a one-half
undivided interest in H Highway. In 2006—through various agreements not in dispute here—the Phyllis Trust
acquired Ossie, Ralph, and a 100% undivided interest in H Highway.

                                                        3
      and payment of taxes or establishment of reasonable reserves therefore, be paid
      over and distributed free of trust as follows:

      a. The 141 acre “Cotton Place”. I direct that the 141 acre “Cotton Place” joins
         the land of my son, Kim L. Diehl. I direct that this land be promptly distributed
         to Kim L. Diehl or his then living issue per stirpes. [Legal description of the
         “Cotton Place” land omitted.]

      b. The 544 acre “Home Place”. I direct that the 544 acre “Home Place” be
         promptly distributed to my son, Kim L. Diehl. Prior to distribution, my Trustee
         is directed to encumber the property for a loan of $250,000 on such terms as the
         Trustee may in his sole discretion may [sic] deem appropriate. From these
         borrowed funds, $50,000 is to be paid to my daughter, Sydney Burch, and the
         remaining loan proceeds of $200,000 are to be paid to my daughter, Mignon L.
         Diehl, now Lambley. The real estate is then to be conveyed and distributed to
         my son, Kim L. Diehl, subject to the mortgage, which the distributee, Kim L.
         Diehl, is to assume and agree to pay. I am aware that this distribution is not an
         equal distribution and that I am substantially favoring my son, Kim. L. Diehl.
         [Legal description of the “Home Place” land omitted.]

      c. Livestock. With the considerable assistance of my son and his children, I have
         accumulated a substantial herd of livestock. All livestock in which I have any
         interest shall be distributed immediately and without delay at the time of my
         death to my son, Kim L. Diehl, or his then living issue per stirpes.

      d. Farm Machinery, Equipment, Etc. All farm machinery equipment and all
         equipment, all tools and all supply of feed, fencing material, farm supplies,
         miscellaneous farm appliances and other personal property kept on hand around
         my farm real estate, together with all motor vehicles including motorized farm
         equipment and machinery, which I own at the time of my death, including all
         unexpired insurance thereon shall be distributed immediately and without delay
         at the time of my death to my son Kim L. Diehl, or his then living issue per
         stirpes.

      e. Trust Assets Not Otherwise Herein Distributed. At the time of my death, if
         the Trust holds other assets not distributed under the foregoing provisions, said
         assets shall be distributed in equal shares, one-third to Kim L. Diehl, one-third
         to Mignon L. Diehl and one-third to Sydney S. Burch, or their then living issue
         per stirpes.

Raymond died on February 20, 2013.

                      Use of Phyllis Trust Property from January 31, 2005
                                      to February 20, 2013



                                               4
           After Phyllis died, the income earned by the Phyllis Trust consisted of crops and

government farm payments. Raymond obtained bank loans and used those funds, in part, to pay

for inputs to farm on the Phyllis Trust property.4 The loans were secured by Raymond’s cattle.

           Corn and soybeans were grown on the Phyllis Trust property. When corn was harvested

from Wilson Place, Ralph, and Ossie, it was distributed to Raymond, and he generally used it to

feed his cattle.5 When soybeans were harvested from that property, Raymond generally sold the

crops and added the proceeds to his personal checking account. The Farm Service Agency

payments for Wilson Place, Ralph, and Ossie were directly distributed to Raymond. The Phyllis

Trust did not maintain a bank account.

           During this time period, Kim, his sons, and employees hired by Kim provided custom farm

work for the Phyllis Trust to generate the corn and soybeans. These farm services included:

anhydrous application, fertilizer application, disking, rolling and finishing, planting, spraying,

combining and hauling, spraying brush, mowing roadsides, baling hay, scraping, mowing pasture,

and chopping silage. To perform these services, Kim used his own diesel fuel and equipment.

Kim’s equipment included a tractor and auger cart, a sprayer worth approximately $175,000-

$200,000, a four-wheel drive tractor worth approximately $150,000-$300,000 with an anhydrous

fertilizer applicator attachment worth approximately $57,000, a combine worth approximately

$500,000, a chore tractor, a wheat combine worth approximately $200,000-$300,000, a drill worth

approximately $55,000, a grain wagon to transfer feed, and a trailer truck. Although Raymond

owned some dated farm equipment, it was inadequate to farm the Phyllis Trust property.




4
    Farm inputs are those items necessary to grow crops, such as seed, fertilizer, and spraying chemicals.
5
 Raymond requested that Kim farm H Highway in exchange for Kim allowing Raymond to run his cattle on Kim’s
personal land and collect rent on a residential property Kim owned. Thus, Kim paid all input costs for H Highway
during this time period and received the crops harvested from and the Farm Service Agency payments for H Highway.

                                                            5
                                Kim’s Actions After Raymond’s Death

       After Raymond died, Kim continued to farm the Phyllis Trust property. At the time of his

death, Raymond owed to Community First Bank $389,645.64 in loans, the proceeds of which had

been partially used to pay for the inputs for Wilson Place, Ralph, and Ossie. On March 31, 2015,

Kim personally assumed the loans. Kim also personally paid vendors who were owed for items

purchased or services rendered to the Phyllis Trust, the Raymond Trust, and Raymond’s estate.

                                     Pre-Trial Procedural History

       Following Raymond’s death, Mignon, Sydney, and Kim engaged in protracted, yet

unsuccessful, settlement negotiations regarding the disposition of the trusts’ assets.

       In May 2015, Mignon and Sydney initiated this action by filing a Petition for Accounting,

for Removal of Trustee and for Financial Restitution. Two months later they filed an amended

petition, naming as defendants Kim in his individual capacity, Kim as trustee of the Phyllis Trust,

Kim as trustee of the Raymond Trust, and Kim as personal representative of Raymond’s estate. In

Count I they requested the trial court remove Kim as trustee for both trusts and replace him with a

qualified independent third party, alleging Kim breached his fiduciary duty of loyalty and failed

to provide accountings as required. In Count II they sought accountings from Kim for both trusts.

In Count III they requested the trial court order Kim “to provide financial restitution to each of the

Trusts for the fair market rental value of the Trust property he used for his personal farming

operations during the entire period of time he has been acting as Trustee of the Trusts.”

       In response, Kim asserted five “Counter-Claims and Cross-Claims”: (1) a claim of quantum

meruit to recover the reasonable value of farming services he rendered to the Phyllis Trust; (2) a

claim of unjust enrichment to recover the amount of loans he assumed that benefitted the Phyllis

Trust; (3) a claim of contribution for the loan payments he made that benefitted the Phyllis Trust;


                                                  6
(4) a request for declaration of rights regarding various trust administration issues, including a

declaration as to the “fair market value of cash rental” Kim owed the Phyllis Trust for farming the

Phyllis Trust property after Raymond’s death; and (5) a request for instructions regarding

administration of the trusts.

         On November 6, 2015, Mignon and Sydney filed a motion for interim relief requesting,

among other things, that the trial court order Kim to pay rent for farming land held by the Phyllis

Trust after the date of Raymond’s death. The trial court granted the motion in part and ordered

Kim to pay $137,826.67 into an escrow account, such sum representing two-thirds of the rental

amount for land in the Phyllis Trust from the date of Raymond’s death through February 2017. On

March 1, 2017, Kim requested the trial court order him to pay additional amounts into escrow for

rent from March 2017 through February 2018. The trial court granted Kim’s motion and ordered

him to “pay $34,456.67 into escrow for security for rent from March 1, 2017 to February 28,

2018.”

                                                 Trial

         Beginning on January 29, 2018, the trial court conducted a six-day bench trial. On the

second day of trial, Mignon and Sydney dismissed Count II of their petition, in which they had

requested trust accountings from Kim. Also during trial, counsel for Mignon and Sydney advised

that they were seeking prejudgment interest and that they intended to filed a post-trial motion

requesting such an award.

         Kim presented evidence at trial relating to the value of the custom farm work he provided

the Phyllis Trust from 2005 to 2012. Kody Claflin, an agricultural services provider, provided

expert testimony as to the reasonable value in Bates County of each of the farming services Kim

provided the Phyllis Trust.


                                                 7
       Kim testified about conversations that had occurred between him and Raymond relating to

Kim being paid for the custom farm work he was performing. Specifically, Kim stated that in 2012,

Raymond said to him, “I don’t know how I’ll ever repay you boys back . . . some day we’ll try to

get this figured out.” In that same conversation Raymond said, “I don’t think I want to be involved

in farming anymore . . . you guys have been farming it. I’m going to let you guys farm it next year

and we’ll get squared up or we’ll take care of it later.”

       Kim’s son Dane Diehl, who had performed custom farm work for others in Bates County,

testified about the usual practices in the community regarding agreements to perform such work.

Dane stated that he did not sign contracts or enter into written agreements as to when or how much

he would get paid for his services, but that there was an “understanding that at some point” he

would get paid based on promises made by landowner. The language typically used to convey such

promises of payment included, “I’ll get you paid one of these days,” “we’ll get squared away one

of these days or come see me one of these days.” He testified that he entered into such informal

agreements because of “loyalty and trust and knowledge of people in the area,” and that “you are

going to get reimbursed at some point; you just don’t know when around the community.” He

further stated that sometimes it took years to be paid for the farm work performed.

                                     Post-Trial Procedural History

       At the conclusion of trial, the trial court took the case under advisement pending post-trial

briefing. The parties filed proposed findings of fact and conclusions of law, and Mignon and

Sydney filed a Motion for Award of Prejudgment Interest. Kim opposed the motion.




                                                  8
        On November 8, 2018, the trial court entered its initial judgment, which was incomplete in

several respects.6 The trial court entered a First Amended Judgment, which appeared to resolve

the incomplete parts of the initial judgment.

        In the First Amended Judgment, the trial court denied Counts I and III of Mignon and

Sydney’s petition and granted all of Kim’s counter- and cross-claims. Relating to Kim’s quantum

meruit claim, the trial court found that Kim “shall be entitled to credit in the amount of $327,557.08

from the Phyllis Diehl Trust for his custom labor services from 2005 through 2012.” Regarding

Kim’s unjust enrichment claim, the trial court found that Kim “shall be entitled to credit in the

amount of $194,822.82 from the Phyllis Diehl Trust for loans used to benefit the Phyllis Trust.”

In response to Count V—Kim’s claim requesting instructions—the trial court ordered Kim to

encumber the Home Place in the amount of $250,000 and, “[i]mmediately upon obtaining the

financing,” pay $200,000 to Mignon and $50,000 to Sydney, as provided in the Raymond Trust.

Also in response to Count V, the trial court found that “[t]he total amount due for rent for 2013

through 2017 [was] $247,476” and ordered Kim to transfer funds in the escrow account (which

held Kim’s rent payments for farming the Phyllis Trust property after Raymond’s death) to the

Phyllis Trust and execute a note payable to the Phyllis Trust for the remaining rent due. The trial

court awarded Mignon and Sydney prejudgment interest on the $250,000 distribution and the

$247,476 amount of rent owed.

        The case was transferred to the Honorable Harold L. Dump, II after the trial judge’s

retirement. The parties filed motions to amend the judgment. In Kim’s motion, he argued that the

trial court should amend the judgment to exclude Mignon and Sydney’s awards of prejudgment

interest. The trial court heard argument on the motions to amend, granted Kim’s motion, and


6
 For example, some of the findings of fact ended mid-sentence and there was a note that one of the legal conclusions
made by the trial court still needed to be “looked up.”

                                                         9
entered a Second Amended Judgment, which removed Mignon and Sydney’s awards of

prejudgment interest.

           Mignon and Sydney appealed.7 Additional facts are set forth in the analysis.

                                                        Analysis

           Mignon and Sydney raise five points on appeal. In Point I they assert the trial court erred

in finding in favor of Kim on his claims of quantum meruit and unjust enrichment in that there was

insufficient evidence that the Phyllis Trust received and retained a benefit from Kim’s custom farm

work and assumption of Raymond’s loans. In Point II they assert the trial court erred in finding in

favor of Kim on his claim of unjust enrichment in that there was insufficient evidence of the

amount of benefit conferred and retained. In Point III they argue that the trial court erred by

refusing to apply the presumption that services provided by family members are rendered

gratuitously. In Point IV they assert the trial court erred in denying their motion for prejudgment

interest. Finally, in Point V they argue the trial court erred by “rubber stamping” Kim’s proposed

judgment. For ease of analysis, we address the points out of order.

                                                 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 the 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)). “Substantial evidence is evidence

that, if believed, has some probative force on each fact that is necessary to sustain the circuit court’s

judgment.” Id. at 199. “Evidence has probative force if it has any tendency to make a material fact

more or less likely.” Id. When reviewing whether the trial court’s judgment is supported by


7
    Kim filed a cross-appeal, however he voluntarily dismissed that appeal before the parties filed any briefing.


                                                            10
substantial evidence, we accept as true the evidence and inferences favorable to the judgment and

disregard all contrary evidence. Id. at 200.

                                         Quantum Meruit Claim
                              (Addressing part of Point I and all of Point III)

         In his claim for quantum meruit, Kim sought reimbursement from the Phyllis Trust for the

custom farm work he performed on land held by the Phyllis Trust. Mignon and Sydney argue in

their first point that the trial court erred in finding in favor of Kim on this claim because there was

insufficient evidence that the Phyllis Trust received and retained a benefit from Kim’s custom farm

work.8 We disagree.

         “The right to recover in quantum meruit arises when services are provided and accepted

under circumstances that would justify an expectation of payment of the reasonable value of those

services to the person providing them.” Moran v. Hubbartt, 178 S.W.3d 604, 615 (Mo. App. W.D.

2005). “The principal function of this type of implied contract is the prevention of unjust

enrichment.” Holliday Invs., Inc. v. Hawthorn Bank, 476 S.W.3d 291, 295 (Mo. App. W.D. 2015).

“Because quantum meruit is justified on the theory of unjust enrichment, it is understandable that

both [a claim for quantum meruit and a claim for unjust enrichment] generally require that a benefit

be conferred and inequitably retained.” Id.

         Mignon and Sydney acknowledge that a benefit was realized from Kim’s custom farm

work; however, they argue that it was Raymond, not the Phyllis Trust, who received and retained


8
  Mignon and Sydney also assert in this point relied on that the weight of the evidence “conclusively demonstrated
there was no receipt or retention of any benefit.” Thus, this point relied on fails to comply with Rule 84.04(d) because
it purports to assert both a substantial-evidence challenge and an against-the-weight-of-the-evidence challenge, which
are distinct claims. See Ivie, 439 S.W.3d at 199 n.11 (a substantial-evidence challenge and an against-the-weight-of-
the-evidence challenge “must appear in separate points relied on in the appellant’s brief to be preserved for appellate
review”). Nonetheless, we are permitted to exercise our discretion to review unpreserved claims on appeal. See id. We
will exercise our discretion to address the merits solely of Mignon and Sydney’s substantial-evidence challenge, as
this is the focus of their argument on appeal and because they fail to engage in the required “against-the-weight-of-
the-evidence” analytical framework. See Sauvain v. Acceptance Indem. Ins. Co., 437 S.W.3d 296, 304 (Mo. App.
W.D. 2014).

                                                          11
the benefit, as the crops grown on Wilson Place, Ralph, and Ossie went directly to Raymond. But

this argument overlooks the purpose and function of the Phyllis Trust: after Phyllis’s death and

while Raymond was still alive, the purpose of the Phyllis Trust was to provide income to Raymond.

Kim’s custom farm work allowed the Phyllis Trust to earn income in the form of crops and provide

that income to Raymond. The Phyllis Trust could not have earned this income without custom

farm services, and had Kim not provided those services, the Phyllis Trust would have had to pay

others to provide them. Thus, the Phyllis Trust was enriched by $327,557.08—the value of the

custom farm services that it did not have to pay to create income for its beneficiary. Therefore, the

Phyllis Trust did receive and retain a benefit from Kim’s custom farm work.

       In arguing that only Raymond received and retained the benefit of Kim’s services, Mignon

and Sydney focus solely on who ultimately received the crops and the proceeds from the sale of

those crops. Where recovery is sought from a trust under a theory of quantum meruit, however,

the question of who receives and retains the benefit is not so narrowly drawn: both a trust and its

beneficiary can receive and retain a benefit from the same provision of services. See Scott v. United

Carolina Bank, 503 S.E.2d 149, 153 (N.C. Ct. App. 1998) (where the plaintiff sought recovery

from a trust under a theory of quantum meruit, caregiving services she rendered to the beneficiary

of the trust could be a benefit to both the beneficiary and the trust created for his care); see also

Nichols v. Donaldson, 322 S.W.3d 155, 158-59 (Mo. App. E.D. 2010) (upholding trial court’s

finding that son—who was also trustee—was entitled to reimbursement from the trust under a

theory of quantum meruit for the personal labor and diesel fuel son expended on farm property

held by the trust after the grantor’s death; the son’s theory of recovery was that he had “performed

valuable services and made material improvements to the Trust property that ‘greatly benefitted

all beneficiaries of the [Trust],’” which included him and his nieces). Because the benefit to



                                                 12
Raymond and the Phyllis Trust need not be mutually exclusive, the fact that Raymond benefited

from Kim’s custom farm work does not negate the benefit that the Phyllis Trust received and

retained from those same services.

         As described above, we find there was substantial evidence that the Phyllis Trust received

and retained a benefit from Kim’s custom farm work. Nonetheless, we cannot affirm the trial

court’s judgment finding in favor of Kim on his quantum meruit claim. Mignon and Sydney raised

an affirmative defense to this claim, asserting that services rendered to family members are

presumed to be gratuitous and Kim failed to overcome this presumption. The trial court concluded,

as a matter of law, that this defense was inapplicable to actions involving trusts. In Point III,

Mignon and Sydney argue that the trial court erred in so concluding, and we agree.

         “The law presumes that a person expects compensation for their valuable services

performed to benefit another unless the parties share familial ties, or are unrelated but have a

special relationship from which a reasonable person would believe such services were gratuitously

performed for the other.” In re Wyman, 220 S.W.3d 471, 473 (Mo. App. W.D. 2007). “The defense

of a family relationship is an affirmative defense,” and the party asserting the defense has the

burden to establish the existence of a familial or special relationship that gives rise to the

presumption.9 See McMurry v. Magnusson, 849 S.W.2d 619, 622 (Mo. App. E.D. 1993). If the

party asserting the defense establishes the requisite familial or special relationship, the party

against whom the defense was raised may rebut this presumption by showing the parties intended

and understood that the services were to be paid for. See id.




9
 “For purposes of raising the presumption that services were rendered gratuitously, a family is defined as a collective
body of persons under one head and one domestic government, who have reciprocal, natural, or moral duties to support
and care for each other.” McMurry v. Magnusson, 849 S.W.2d 619, 622 (Mo. App. E.D. 1993) (internal marks
omitted). “Whether a family relationship existed is a factual issue.” Id.

                                                         13
       Here, the trial court concluded that “[w]hile family relationships have been recognized in

actions under the probate code to create a presumption that services between family members were

offered gratuitously, this does not apply in the current trust proceeding, which is a creature of

equity.” This conclusion, however, is not supported under Missouri law, as Missouri courts have

applied the presumption in actions outside the probate code, including in equitable proceedings.

See, e.g., McMurry, 849 S.W.2d at 621-23 (in personal injury action, trial court erred by refusing

to allow the jury to consider in determining plaintiff’s damages whether care services rendered by

plaintiff’s sister were gratuitous in nature); Brassfield v. Allwood, 557 S.W.2d 674, 681 (Mo. App.

1977) (applying the presumption where children brought equitable claim against step-mother,

seeking specific performance of an oral contract father allegedly made before he died wherein he

promised the children that they would receive the father’s real property if they helped him with his

farming operation); cf. Hoeper v. Liley, 527 S.W.3d 151, 163 (Mo. App. W.D. 2017) (indicating

the presumption could apply as a defense to an unjust enrichment claim, however refusing to

consider whether the presumption applied under the facts of the case because the defendants did

not plead or otherwise argue to the trial court that the presumption applied).

       Furthermore, given the nature of a trust, we can discern of no reason why, as a matter of

law, the presumption could not apply in a trust proceeding where those involved are close family

members. A trust is not a legal entity; it is a relationship between the trustee and beneficiaries, who

share title to trust property, the trustee holding legal title and the beneficiaries holding equitable

title. See Rouner v. Wise, 446 S.W.3d 242, 251 n.8 (Mo. banc 2014) (defining a trust—other than

a charitable, resulting, or constructive trust—as “a fiduciary relationship with respect to property,

subjecting the person by whom the title to the property is held [the trustee] to equitable duties to

deal with the property for the benefit of another person [the beneficiary]”); Thompson v. Koenen,



                                                  14
396 S.W.3d 429, 435 (Mo. App. W.D. 2013) (“It is well settled under Missouri law that a trust is

not a legal entity.” (internal marks omitted)); Moore v. Moore, 111 S.W.3d 530, 533 (Mo. App.

S.D. 2003) (“The fundamental nature of a trust is the division of title; the trustee being the holder

of legal title and the beneficiary of equitable title.”). Thus, it could be presumed that services

provided to the trust or its beneficiaries by family members of the trust’s beneficiaries were

intended to be rendered gratuitously. Whether the familial relationship necessary to invoke the

presumption has been established, however, depends on the specific facts of the case. See Scott,

503 S.E.2d at 152 (acknowledging the presumption exists, but finding it did “not apply” where the

individual providing the services and the beneficiary were “more distant adult relatives living

apart”).

         Here, the trial court concluded, as a matter of law, that the presumption does not apply in

proceedings pertaining to trusts. For the reasons described above, this conclusion was in error.

Thus, we must remand to the trial court to determine whether, under the facts of this case, the

requisite familial relationship was present to invoke the presumption.10

         If the trial court finds that Mignon and Sydney have established the necessary predicate to

invoke the presumption in this case, the question would then arise whether there was an agreement



10
   Although the trial court concluded as a matter of law that the presumption did not apply, it also found in paragraph
94 of the Second Amended Judgment that Mignon and Sydney “established their burden to prove as an affirmative
defense that [Kim] had a family relationship with the Phyllis Trust such that services performed by [Kim] would be
presumed to be gratuitous.” However, the opposite finding was made in the First Amended Judgment, in which the
trial court found Mignon and Sydney “did not establish their burden to prove as an affirmative defense that [Kim] had
a family relationship with the Phyllis Trust such that services performed by [Kim] would be presumed to be
gratuitous.” (emphasis added). The judge who entered the Second Amended Judgment did not preside over the trial.
Thus, he was without authority to change the factual findings made in the First Amended Judgment absent rehearing
the evidence or obtaining a stipulation from the parties that he could make factual findings without hearing the
evidence. See Rule 79.01; Roberts v. Shaw, 496 S.W.3d 557, 558-59 (Mo. App. S.D. 2016) (“Under Missouri law, a
successor judge is without power to render a judgment based on testimony and evidence heard by his predecessor
absent a stipulation by the parties,” and in absence of such stipulation, “the court must either make a judgment
consistent with the findings of the original trial court that heard the evidence or hold a new hearing.”). The trial court
should be mindful of these requirements when determining on remand whether the necessary familial relationship was
present to invoke the presumption.

                                                           15
between Kim and a person with authority to bind the trust that Kim would be compensated for his

custom farm services. See McMurry, 849 S.W.2d at 622 (once familial relationship is established,

party against whom the defense was raised may rebut the presumption with “evidence tending to

show that the parties intended and understood that the services were to be paid for by the recipient

thereof”). After finding as a matter of law that the presumption did not apply, the trial court,

nonetheless, made factual findings as to whether such an agreement existed. If the trial court had

found that such an agreement to compensate existed, we could affirm the judgment in favor of

Kim on his quantum meruit claim on this ground. However, the trial court’s findings on this issue

are inconsistent and ambiguous:

         87. There was an agreement or understanding between the acting successor trustee
         [Raymond11], named successor trust[ee] [Kim] and its mandatory income
         beneficiary [Raymond] and discretionary principal beneficiary [Raymond] that
         Kim would be reimbursed at some future date for his services rendered. . . .

                                                         ...

         95. Even assuming the presumption applies to Trust matters, and even assuming
         that [Mignon and Sydney] established a family relationship between Kim and the
         Phyllis Trust, or its beneficiaries, there was no credible testimony that the acting
         successor trustee [Raymond], the named trustee [Kim], and the mandatory income
         beneficiary [Raymond] and discretionary principal permissible beneficiary
         [Raymond] intended to pay Kim, and Kim expected to be paid, for custom labor
         services.[12]

         96. There is no credible evidence that Raymond, as acting trustee and as beneficiary
         of the Trust, and Kim as named trustee, agreed to pay, and there was a mutual
         understanding that Kim would be paid for services rendered to the Trust for the
         benefit of Raymond. Consequently, any presumption of gratuitous services is
         overcome. [Citation omitted][13]

11
  The trial court found that “Raymond controlled Kim and Kim did whatever Raymond wanted,” and that “in fact
Raymond acted as successor trustee of the Phyllis Trust, after Phyllis’ death until Raymond’s death, despite the trust
document nominating Kim to serve as successor Trustee.”
12
  In the First Amended Judgment, the trial court found there was credible testimony that Raymond and Kim intended
to pay Kim, and Kim expected to be paid, for custom labor services.
13
  In the First Amended Judgment, the trial court found there was credible evidence that Raymond and Kim agreed to
pay, and there was a mutual understanding that Kim would be paid for the services rendered. Furthermore, we note

                                                         16
        97. Kim relied upon promises that he would be paid for his custom labor services
        provided to the Phyllis Trust.

                                                        ...

        100. . . . Up until [the date of Raymond’s death], Raymond had repeatedly promised
        Kim that he would be paid for the farming services at some later date when they
        would figure it out. The parties effectively agreed to postpone payment. Kim did
        not know he had sustained an actionable injury until Raymond died without ever
        paying Kim. Consequently, Kim’s counterclaim for quantum meruit is not barred
        by the statute of limitations.

        “An appellate court cannot rule on issues formulated on inconsistent and ambiguous

findings.” Finest Place, Inc. v. Skidmore, 477 S.W.3d 745, 747 (Mo. App. S.D. 2016). In light of

the conflicting findings described above, we cannot determine whether the trial court found an

agreement existed between Kim and an individual with authority to bind the trust that Kim would

be compensated for his custom farm services. On remand, if the trial court determines the

presumption of gratuitous family services has been established rendering the existence of such an

agreement relevant, the trial court must clarify its factual findings in this regard. Cf. Finest Place,

Inc., 477 S.W.3d at 749 (reversing judgment based on trial court’s inconsistent findings and

remanding for further clarification of the trial court’s factual findings).14

        In sum, we find substantial evidence supported Kim’s claim for quantum meruit, however,

the trial court erred in concluding that, as a matter of law, Mignon and Sydney’s affirmative




that standing alone this paragraph contains an inconsistency: if there was no credible evidence of a compensation
agreement, then the presumption would not be overcome, i.e., without evidence of a compensation agreement, the
presumption would remain that the work was intended to be performed gratuitously.
14
   As noted above, in the Second Amended Judgment the trial court made factual findings on the credibility of the
evidence regarding the compensation agreement that differed from the findings made in the First Amended Judgment.
On remand, to the extent factual findings are necessary on whether there was a compensation agreement, such findings
may implicate Rule 79.01, and may require the successor judge to rehear the evidence on this issue or obtain a
stipulation by the parties that he can make factual findings without hearing the evidence. See Rule 79.01; see also
Roberts, 496 S.W.3d at 558-59.

                                                        17
defense to this claim was inapplicable. Thus Point I (as it relates to Kim’s quantum meruit claim)

is denied and Point III is granted.

                                    Unjust Enrichment Claim
                          (Addressing part of Point I and all of Point II)

       In his claim for unjust enrichment, Kim sought reimbursement from the Phyllis Trust for

the loans he assumed upon Raymond’s death, the proceeds of such loans having been used, in part,

to purchase inputs for the Phyllis Trust property. In Points I and II Mignon and Sydney argue there

was insufficient evidence to find in favor of Kim on his claim of unjust enrichment. Specifically,

in Point I they assert the “record conclusively showed that the Phyllis Trust did not receive or

retain any benefit” from “the proceeds of the loans that Raymond took out”; rather, that benefit

flowed exclusively to Raymond. Alternatively, in Point II they argue there was insufficient

evidence of the amount of the benefit conferred. We disagree with both assertions.

       “Unjust enrichment occurs where a benefit is conferred upon a party under circumstances

in which retention of that benefit without paying its reasonable value would be unjust.” Pitman v.

City of Columbia, 309 S.W.3d 395, 402 (Mo. App. W.D. 2010); see also Holliday Invs., Inc., 476

S.W.3d at 295 (like a claim of quantum meruit, a claim of unjust enrichment “generally require[s]

that a benefit be conferred and inequitably retained”). The measure of recovery in a claim for

unjust enrichment “is not the actual amount of the enrichment, but the amount of enrichment which

would be unjust for the defendant to retain.” Holliday Invs., Inc., 476 S.W.3d at 296. “Thus, a

plaintiff must present evidence of the amount of the benefit conferred upon the defendant.” Pitman,

309 S.W.3d at 403.

       At trial, evidence was presented that at the time of Raymond’s death, he owed $389,645.64

in Community First Bank loans, and Kim had assumed those loans. The trial court found “[t]here

was evidence that at the minimum, inputs for the Phyllis Trust were purchased with at minimum

                                                18
50% of the loan proceeds” and that the “Phyllis Trust accepted the benefits of such loan proceeds

in the amount of $194,822.82.” The trial court found that “Kim paid or assumed such loans such

that the Phyllis Trust owes Kim the sum of $194,822.82 for the use of the loan proceeds in

providing crop inputs.”

       In their first point, Mignon and Sydney argue that “while the loans were used to finance

inputs to farming operations taking place on land owned by the Phyllis Trust,” the “Phyllis Trust

did not retain any of the benefits of the outputs from that farming activity,” thus the Phyllis Trust

“was not enriched . . . by the loans.” But as described above regarding the custom farm services,

the Phyllis Trust did not need to retain the crops or the income from the crops to retain a benefit

from the loans. In order to produce income and provide such income to its beneficiary—i.e., to

accomplish its purpose—the Phyllis Trust had to purchase inputs to be able to plant and harvest

crops. The Phyllis Trust did not use its own assets to pay for the inputs; rather, the Phyllis Trust

received proceeds from another source (loans which Kim later assumed) to plant crops and

generate income. Had the Phyllis Trust paid for the inputs itself, its assets would have been reduced

by the cost of that expense. Thus, the Phyllis Trust retained a benefit because it was able to generate

income without paying for the crop inputs necessary to generate that income. In sum, we find there

was substantial evidence that the Phyllis Trust received and retained a benefit from the Community

First Bank loans that Kim assumed.

       In Point II, Mignon and Sydney argue, alternatively, that there was insufficient evidence

to support Kim’s claim of unjust enrichment because there was “no evidence in the record at all

regarding what portion of the loan proceeds funds (if any) that Raymond may have used for the

purchase of crop inputs or any of the other items that purportedly conferred benefits upon the




                                                  19
Phyllis Trust.” Again, we disagree, and find substantial evidence supported the trial court’s finding

that at least 50% of the loan proceeds were used to purchase inputs for the Phyllis Trust.

        The evidence at trial showed that the Community First Bank loans were used to pay the

following: input costs for Raymond’s 65 acres of cropland and the Phyllis Trust’s 260 acres of

cropland, operating expenses for Raymond’s cattle operation, the purchase of a truck in the amount

of $35,589, the purchase of a piece of property called Ferrell Place in the amount of $60,145.45,

and a loan interest payment in the amount of $15,645.64. Kim acknowledged that the loan proceeds

used to purchase the truck and Ferrell Place were not spent on inputs for the Phyllis Trust property.

Thus, subtracting the amount of loan proceeds used to pay for the truck, Ferrell Place, and the loan

interest payment, the remaining $278,265.55 were used to pay for input costs and to operate

Raymond’s cattle business. Kim testified that were “not a whole lot of operating expenses on

cattle” and that “a lot” of the loan proceeds went to buying inputs for the crops grown on the

Phyllis Trust property. In fact, the evidence showed that of the loan proceeds used to pay for input

costs, 80% were spent on property held by the Phyllis Trust. 15 Although there was not specific

evidence as to the exact amount of loan proceeds spent on inputs for the Phyllis Trust, the above-

described evidence provided a sufficient evidentiary basis for the trial court’s finding that, at a

minimum, 50% of the Community First Bank loan proceeds were used to pay the input costs for

property held by the Phyllis Trust. Thus, sufficient evidence was presented to support the trial

court’s determination that the Phyllis Trust was conferred a benefit in the amount of at least

$194,822.82.

        Point I (as it relates to Kim’s unjust enrichment claim) and Point II are denied.




15
  The input costs were spent on farming corn and soybeans on 325 acres; 65 of those acres belonged to Raymond and
260 were held by the Phyllis Trust. Thus 80% of the input costs were used to farm the Phyllis Trust property.

                                                       20
                      Mignon and Sydney’s Motion for Prejudgment Interest

         In Point IV Mignon and Sydney assert the trial court erred in denying their motion for

prejudgment interest. Before we address this claim, we believe it helpful to set forth the facts

surrounding Mignon and Sydney’s request for prejudgment interest.

         After the trial concluded, Mignon and Sydney filed a motion for prejudgment interest,

requesting the trial court award them interest “on two sets of the moneys”: (1) “the money [Kim]

should have paid Plaintiffs as rent for his personal use of croplands and pasture lands in the Phyllis

S. Diehl Trust;” and (2) the $250,000 distribution owed to them under the Raymond Trust. In its

First Amended Judgment, the trial court awarded prejudgment interest to Mignon and Sydney on

the rent due from Kim for farming the Phyllis Trust land from 2013 through 2017 and the $250,000

distribution from the Raymond Trust. The trial court did not include any findings in the First

Amended Judgment explaining its reasons for these awards.

         Kim moved to amend the judgment to remove the awards of prejudgment interest. Judge

Dump heard argument on the motion, and subsequently made an entry advising that the First

Amended Judgment “will be amended to remove the prejudgment interest award.” Thereafter, the

trial court entered the Second Amended Judgment, which removed the interest awards. As for its

reason for denying prejudgment interest on the distribution from the Raymond Trust, the trial court

found:

         261. No pre-judgment interest should be awarded to either [Sidney], [Mignon] or
         Kim on their distributions from the Raymond Trust because no contract provides
         for such interest, no statute provides for such interest, and [Mignon and Sydney]
         did not receive a judgment of distribution given that they did not request
         distribution in their Petition.

The Second Amended Judgment contained no findings as to the reason the trial court declined to

award prejudgment interest on the rent owed by Kim.



                                                 21
         In their fourth point relied on Mignon and Sydney assert that “[t]he trial erred in denying

[their] motion for pre-judgment interest based on the erroneous conclusion that pre-judgment

interest was not available on equitable claims and that [they] had not adequately requested a

distribution from the trusts.”16 Although we agree that prejudgment interest is available in

equitable proceedings, we find that the trial court did not abuse its discretion in declining to award

Mignon and Sydney prejudgment interest.

         “[I]n equitable actions the decision whether to award prejudgment interest lies entirely in

the trial court’s discretion.” Taylor-McDonald v. Taylor, 245 SW.3d 867, 878 (Mo. App. S.D.

2008). Thus, our review of the trial court’s decision not to award prejudgment interest is for abuse

of discretion. See id. (in sisters’ action against brother—individually and as trustee—to recover

funds they claimed were theirs through inheritance from their father, trial court’s decision to award

prejudgment interest was reviewed for abuse of discretion); see also Robinson v. Langenbach, ---

S.W.3d ---, No. SC97940, 2020 WL 2392488, at *15 (Mo. banc May 12, 2020) (reviewing trial

court’s decision not to award prejudgment interest for abuse of discretion).

         As an initial matter, we note that Mignon and Sydney do not argue on appeal that the trial

court erred or abused its discretion in refusing to award them prejudgment interest on the amount

of rent owed by Kim. Rather, the identified trial court error in their point relied on only pertains to

the trial court’s refusal to award prejudgment interest on the distribution. Additionally, the

argument section of their brief is devoid of any assertion that the trial court erred or abused its




16
   This point relied on fails to comply with Rule 84.04(d), which requires points relied on “be in substantially the
following form: ‘The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for
the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of
reversible error].’” This point relied on is not in the required form, nor does it purport to explain why the legal reasons,
in the context of the case, support the claim of reversible error. Nonetheless, we exercise our discretion to review this
claim on appeal. See Ivie, 439 S.W.3d at 199 n.11.


                                                            22
discretion in failing to award prejudgment interest on the rent due. Other than to note that the trial

court was silent as to its reasons for denying prejudgment interest on the amount of rent owed,

they focus entirely on the trial court’s decision not to award prejudgment interest on the

distribution amount. Thus, we do not address the trial court’s determination not to award

prejudgment interest on the rent due, as any challenge to that determination has been waived. See

Brunig v. Humburg, 957 S.W.2d 345, 347 n.2 (Mo. App. E.D. 1997) (“Issues not raised on appeal

are considered waived.”).

        Relating to the trial court’s decision not to award prejudgment interest on the distribution

amount, to the extent the trial court suggested that an award of such interest was not allowed absent

a statue or contract authorizing it, that suggestion was incorrect. See Akers v. City of Oak Grove,

246 S.W.3d 916, 922 (Mo. banc 2008) (“[A]n allowance of [prejudgment] interest must be based

upon either a statute or a contract, express or implied; except for actions in equity, in which case,

it is a matter for the trial court’s discretion.”). However, the trial court provided an additional basis

for refusing to award prejudgment interest on the distribution amount, namely that Mignon and

Sydney had not sought a distribution in their petition. The trial court was within its discretion to

deny them prejudgment interest on this basis.

        Mignon and Sydney asserted three claims in this action: (1) to remove Kim as trustee; (2)

a request for accountings (which they dismissed the second day of trial); and (3) financial

restitution for Kim’s personal use of trust assets. Each of these claims were either voluntarily

dismissed or denied by the trial court. Although the trial court ultimately ordered the $250,000

distribution to Mignon and Sydney under the terms of the Raymond Trust, such order was in

response to Count V of Kim’s counter- and cross-claims, in which he requested instructions from

the trial court regarding the disposition of trust assets. Without Kim asserting Count V, which was



                                                   23
ultimately granted, there would not have been before the trial court an avenue by which it could

distribute trust assets.

        “The theory of [prejudgment] interest in any case is compensation for the use or loss of the

use of money to the person entitled to it.” Taylor, 245 S.W.3d at 879. Because Mignon and Sydney

did not seek distribution of the $250,000, the trial court was within its discretion to determine that

they were not entitled to compensation for their “loss of the use” of that money. Cf. Robinson,

2020 WL 2392488, at *15 (affirming the trial court’s decision not to award prejudgment interest

to the plaintiff on the money judgment she received for the fair value of her stock; the trial court

denied prejudgment interest, in part, because the plaintiff “never made any demand upon the

defendants that they buy her stock, until she filed suit”); see also Health Care Found. of Greater

Kan. City v. HM Acquisition, LLC, 507 S.W.3d 646, 668 (Mo. App. W.D. 2017) (“[T]he trial court

may be guided by equitable principles of fairness and justice when determining whether to award

prejudgment interest.”).

        Although Mignon and Sydney argue that “[a]n award of pre-judgment interest to

Appellants was necessary both to prevent Kim from profiting from his serial delays in distributing

the proceeds of both the trusts—in breach of his duties as trustee and solely for the purpose of

extracting unmerited concessions from his sisters—and also to compensate Appellants from [sic]

the lost time-value of the money of which Kim improperly deprived them,” the trial court made

numerous findings contrary to this assertion which they have not appealed, including finding that

Kim “provided services above and beyond what a normal trustee would do,” Kim acted reasonably

in attempting to procure a settlement of this matter prior to Sydney and Mignon filing their petition,

and “[r]ather than requesting the Court order distribution from the Raymond Trust, [Sydney and

Mignon] decided to litigate the removal of the Trustee of the Raymond Trust and the required



                                                 24
accountings of the Raymond Trust, which litigation caused the delay in the distribution of the

Raymond Trust.” See STRCUE, Inc. v. Potts, 386 S.W.3d 214, 219 (Mo. App. W.D. 2012) (an

appellant’s failure to properly challenge a finding of the trial court that would support its judgment

is fatal to her appeal). Thus, we find no basis for Mignon and Sydney’s argument that an award of

prejudgment interest was warranted due to Kim’s actions.

        For the reasons described above, we find the trial court did not abuse its discretion in

declining to award Mignon and Sydney prejudgment interest.17 Point IV is denied.

                      The Trial Court’s Adoption of Kim’s Proposed Judgment

        Mignon and Sydney’s fifth point relied on provides, in its entirety: “The trial court erred

by ‘rubber stamping’ the proposed findings of fact and conclusions of law submitted by [Kim]

without exercising its own independent judgment, as required by law.” Again, this point relied on

fails to comply with Rule 84.04(d), as it fails to follow the format required by the Rule and does

not explain how the facts of the case and the principles of law interact. See State v. Nunley, 341

S.W.3d 611, 625 (Mo. banc 2011) (to comply with Rule 84.04(d), the point relied on must state

“wherein and why” the action or ruling of the trial court was erroneous).

        “A deficient point relied on that cannot be understood without resorting to the argument

portion of the brief or record fails to preserve the argument for appellate review.” Prather v. City

of Carl Junction, Mo., 345 S.W.3d 261, 265 (Mo. App. S.D. 2011); see also Wallace v. Frazier,

546 S.W.3d 624, 628 (Mo. App. W.D. 2018) (“Points that do not comply with the dictates of Rule

84.04(d) preserve nothing for our review[.]”). We decline to exercise our discretion to review this


17
   Mignon and Sydney argue in their reply brief that Judge Dump was without authority to sustain Kim’s motion to
amend the First Amended Judgment. However, this argument was not raised in their opening brief, and we do not
consider arguments raised for the first time in a reply brief. See Pearman v. Dep’t of Soc. Servs., 48 S.W.3d 54, 55
(Mo. App. W.D. 2001) (“Assignments of error set forth for the first time in an appellant’s reply brief do not present
issues for appellate review.”).


                                                         25
unpreserved claim. See Downs v. Dir. of Adult Insts., 40 S.W.3d 19, 23 (Mo. App. W.D. 2001)

(declining to address points relied on that failed to comply with Rule 84.04(d)).

           Nonetheless, even if we were to review this claim of error on appeal, we would find no

merit to Sydney and Mignon’s assertion that the trial court “rubber stamped” Kim’s proposed

judgment. The trial court made various findings in the Second Amended Judgment that were not

proposed by Kim. For example, the trial court’s findings in paragraphs 92, 93, 94, 95, and 96 of

the Second Amended Judgment differed significantly from those proposed by Kim. Thus, we

would deny this point even if we were to review its merits.

           Point V is denied.

                                                    Conclusion

           Points I, II, IV and V are denied. Point III is granted. We vacate the finding in favor of Kim

on his claim for quantum meruit, and remand for further proceedings consistent with this opinion.

The judgment is affirmed in all other respects.18




                                                       __________________________________________
                                                       EDWARD R. ARDINI, JR., JUDGE

All concur.




18
     Kim also filed a Motion for Attorneys’ Fees and Costs on Appeal. That motion is denied.

                                                          26
