                                     ___________

                                     No. 95-2426
                                     ___________

Jonathan D. Brown; Deborah B.             *
Billow; Nancy B. Brown;                   *
Gretchen A. Brown,                        *
                                          *    Appeal from the United States
              Appellants,                 *    District Court for the
                                          *    Western District of Missouri.
     v.                                   *
                                          *
United Missouri Bank, N.A.;               *
Thomas Brown,                             *
                                          *
              Appellees.                  *
                                     ___________

                     Submitted:      January 11, 1996

                            Filed:   March 12, 1996
                                     ___________

Before WOLLMAN, ROSS, and MURPHY, Circuit Judges.
                               ___________


WOLLMAN, Circuit Judge.


     This is an appeal from the district court's grant of summary judgment
to defendants on two claims and judgment as a matter of law (JAML) on the
remaining claims following opening statements, in this diversity action.
We reverse and remand for trial.


                                         I.


     Prior to his death, Maurice Brown (Maurice) created two trusts from
his estate.    Maurice's third wife, Virginia, was the income beneficiary of
the first trust, referred to as the QTIP trust, and the appellants,
Maurice's children (the Brown children), were the remaindermen.      The Brown
children were also the beneficiaries of the second trust, referred to as
the residual trust.         Maurice and United Missouri Bank (UMB) were co-
trustees during Maurice's life, although Maurice could conduct any business
on his own as long as
he was competent, and UMB became the sole trustee after Maurice's death.
One of the trust assets was the Maurice L. Brown Company, which Maurice
sold to Petroleum Resources Management, Inc. (Petroleum Resources) in 1983.
The Maurice L. Brown Company was renamed Petroleum Production Management,
Inc. (Petroleum Production).        As part of the sale proceeds, Maurice
received a promissory note with a face value of $2.5 million, secured by
junior mortgages on properties owned by Petroleum Production.           Petroleum
Resources later issued an additional promissory note for $750,000.            These
notes were allocated to the residual trust.


     After the sale of his company, Maurice was diagnosed with brain
cancer, and his health deteriorated significantly in 1988.            By November
1988, he had lost his eyesight, and on December 3, 1988 he began taking
Roxanol, a liquid morphine.   At a meeting held December 13, 1988, Maurice
released his security interest in the Petroleum Production properties so
they could be sold to another company.      Thomas C. Brown (Thomas), Maurice's
stepson and Virginia's son, represented Petroleum Resources in the matter.
Maurice died on January 11, 1989.     The Brown children did not learn of the
release until after Maurice's death.


     After Maurice's death, UMB determined that Virginia should receive
$570,000 per year to maintain her lifestyle.      Due to the mix of assets in
the trust, however, the trust generated income in the first three years
after Maurice's death of $900,000, $800,000, and $700,000, which was paid
to Virginia.   UMB also sold the notes in the trust account to a subsidiary
of Petroleum Resources for $450,000.


     Maurice's   children   brought    this   action   in   the   district   court,
alleging that:     UMB breached a fiduciary duty by failing to follow
reasonable practices to preserve the value of the Petroleum Resources notes
(Count I); UMB breached a fiduciary duty in administering the trusts (Count
II); Thomas Brown committed fraud




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by inducing Maurice Brown to release the trust assets (Count III); and
Thomas Brown knowingly participated in a breach of fiduciary duty by
forcing UMB to sell the promissory notes for an unreasonably low price
(Count IV).


     The district court struck the Brown children's jury demand on Counts
I, II, and IV, finding that claims against a trustee for breach of
fiduciary duty are equitable and therefore not triable to a jury, and that
Count IV against Thomas was dependent on the equitable claims against UMB.
The district court then granted summary judgment to UMB and Thomas on
Counts I and III, finding that both counts were dependent upon Maurice's
competency at the time he signed the release and that the Brown children
had not raised a genuine issue of material fact on the issue.    The court
also excluded from evidence the transcript of taped telephone conversations
between one of the Brown children and UMB employees.


     Finally, the district court granted JAML to UMB and Thomas on the
remaining claims following the parties' opening statements.      The court
found that the Brown children did not demonstrate that they would be able
to show that UMB abused its discretion or acted in anything other than a
prudent manner with respect to the sale of the Petroleum Resources notes
or to the debt/equity mix of the trust.   The court then found that because
the Brown children could not show that UMB breached its fiduciary duty,
there was no basis for finding that Thomas participated in the breach.   In
the alternative, the court found that the Brown children did not "offer
even a scintilla of proof that such a breach was improperly prompted by
Thomas Brown."


                                   II.


     We will first address the counts of the complaint dependent upon
Maurice's competency.    The district court granted summary judgment on
Counts I and III because it found that Maurice was




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competent to sign the release and that thus the claims based on the release
must fail.    We review the district court's grant of summary judgment de
novo, and we will affirm if the evidence, viewed in the light most
favorable to the non-moving party, shows that no dispute of material fact
exists and that the moving party is entitled to judgment as a matter of
law.   Michalski v. Bank of America Ariz., 66 F.3d 993, 995 (8th Cir. 1995).
Because this is a diversity case, we also review de novo the district
court's interpretation of state law.   Id. (citing Salve Regina College v.
Russell, 499 U.S. 225, 231 (1991)).


       Under Missouri law, a person is incompetent to contract if he does
not have "sufficient mental capacity to understand the nature and effect
of the particular transaction."   McElroy v. Mathews, 263 S.W.2d 1, 10 (Mo.
1953).   Because two cases are rarely even substantially the same, each case
must be decided on its own facts.     Peterein v. Peterein, 408 S.W.2d 809,
814 (Mo. 1966).   Evidence of the person's mental condition before and after
execution can be sufficient if it provides a reasonable inference of
incompetency at the time of execution.       Estate of Brown v. Brown, 722
S.W.2d 345, 347 (Mo. Ct. App. 1987).


       UMB and Thomas submitted the affidavits of four witnesses to the
effect that Maurice was alert and aware and that he appeared to understand
what was going on at the December 13 meeting when he released the
collateral for the promissory notes.      UMB and Thomas also submitted the
affidavit of the nurse who cared for Maurice, who attested that he was
clear and alert both before and after the meeting.      The Brown children
challenge the impartiality and/or credibility of the witnesses, noting
specifically that:   Thomas benefitted from the deal, as he had an interest
in Petroleum Resources; Connie Rolan, as Thomas's legal assistant, was an
interested party; Christopher Glenn, as Thomas's brother-in-law, was an
interested party; and Judith Wimmer, Maurice's secretary, "was very close
with Virginia" and was previously employed by




                                    -4-
Glenn's company, and thus was an interested party.               Mary Lou Pullen,
Maurice's nurse, attested only that she was instructed to withhold Roxanol
when Maurice needed to conduct business--not that she actually withheld the
medication.     Pullen's daily notes confirm that she gave Maurice Roxanol at
9:50 a.m., 12:50 p.m., and 3:45 p.m. on the day of the meeting, and her
notes    also   confirm   that   on   that    same   day   Maurice   suffered   from
hallucinations, believing that his friends were tied up in the garage.


        The Brown children also point out that Maurice did not have legal
representation at the meeting, that he did not follow his usual practice
of informing his family members of the transaction he was contemplating,
that he could have been confused into thinking that Thomas and Glenn were
on his side, and that he signed the document with an unrecognizable
scrawl.1     The district court did not hear live witness testimony on the
competency issue, but instead granted summary judgment to UMB and Thomas
on the basis of the affidavits.


        We conclude that the Brown children submitted sufficient evidence to
raise a factual question as to whether Maurice was competent to release the
collateral.     Thus, summary judgment should not have been granted on the two
counts dependent upon Maurice's incompetence.


                                       III.


        We next address the breach of fiduciary duty claims.          The district
court granted JAML on Counts II and IV, finding that UMB




         1
       The district court did not consider the affidavit of Dr.
Stephen Williamson, who reviewed Maurice Brown's records and stated
that he had serious questions about Maurice's competence to make
important business decisions on December 13. The court stated that
because Dr. Williamson did not examine or treat Maurice Brown, his
affidavit was speculative.

                                        -5-
did not breach its fiduciary duty and that thus neither UMB nor Thomas
could be held liable.     The Brown children argue that UMB breached its
fiduciary duty in several ways, including:     by overpaying Virginia about
$700,000 in three years, which reduced the value of the QTIP trust assets
to their detriment; by selling the Petroleum Resources notes for an
unreasonably low price under pressure from Virginia, Thomas, and Petroleum
Resources and by not obtaining substitute collateral for the notes; by
failing to dispose of real estate in      a prudent manner; and by charging
improper attorney's fees to the trust.


     We review a district court's grant of JAML de novo, resolving all
doubts in favor of the nonmoving party and giving him the benefit of all
reasonable inferences.   Harvey v. Wal-Mart Stores, Inc., 33 F.3d 969, 970
(8th Cir. 1994).    A district court should grant JAML following opening
statements only in rare circumstances, exercising great restraint if there
is any doubt as to the propriety of such a judgment.   See Morfeld v. Kehm,
803 F.2d 1452, 1454 (8th Cir. 1986).   The Brown children were not required
to set forth all of their evidence in the opening statement; the purpose
of their opening statement was simply to provide a general summary of what
the case was about.   See id. at 1455 n.3.


     Because there was a standard by which the reasonableness of UMB's
actions    could be tested, the court needed to determine whether UMB
exercised reasonable judgment in choosing the debt/equity mix of the trust
account.   See In re Heisserer, 797 S.W.2d 864, 870-71 (Mo. Ct. App. 1990).
Based on the evidence that the Brown children proposed to admit, we believe
a jury could reasonably find that UMB manipulated the investment mix to
overpay Virginia at the expense of the remaindermen and that UMB's actions
in allowing the overpayment were unreasonable.


     Factual issues also remained as to whether UMB acted unreasonably in
selling for $450,000 promissory notes on which




                                    -6-
principal and interest due exceeded $4.5 million.         Although the sale price
was within the range of the most recent appraisal, previous appraisals were
higher, and UMB did not retain a broker or market the notes before selling
them back to a subsidiary of Petroleum Resources.              The district court
impermissibly relied on factual assertions by UMB and Thomas that were not
admitted by the Brown children in finding that the price for the notes was
reasonable.   The Brown children should also be allowed to put forth their
evidence that UMB failed to dispose of real estate in a prudent manner and
charged the trust for improper attorney's fees.


     The    district   court   found   that   because   UMB   did   not   breach   its
fiduciary duty, Thomas could not be liable for conspiring to breach the
fiduciary duty.   Alternatively, the court found that the Brown children did
not offer proof that Thomas induced the breach.         Because we have found that
UMB may be liable for a breach of fiduciary duty, the claim against Thomas
Brown cannot be dismissed on the first ground.            In addition, the Brown
children stated that they would offer evidence that Thomas used the threat
of a lawsuit to induce UMB to sell the promissory notes for what he knew
was an unreasonably low price to a company in which Thomas himself had an
interest.   We believe such allegations could state a claim under Missouri
law for inducement to breach a fiduciary duty.           See Massie v. Barth, 634
S.W.2d 208, 211 (Mo. Ct. App. 1982) (third party liable for loss if on
notice of and participates in trustee's breach of trust).                   (We deny
Thomas's motion to strike portions of the Brown children's reply brief
addressing this claim, or in the alternative to file a sur-reply brief, as
the Brown children sufficiently argued their claims against Brown in their
opening brief and responded to Thomas's arguments in their reply brief.)


                                        IV.


     Whether a party is entitled to a jury trial is a legal question that
we review de novo.     Pandazides v. Virginia Bd. of




                                        -7-
Educ., 13 F.3d 823, 827 (4th Cir. 1994).           Courts of equity generally have
exclusive jurisdiction over actions against a trustee for breach of trust,
as they are equitable actions.        See Mertens v. Hewitt Assocs., 113 S. Ct.
2063, 2068 (1993).      Such actions are legal and not equitable, however, if
the beneficiaries are entitled to recover money arising out of a breach of
trust    directly upon obtaining a judgment against the trustee.                     See
Restatement (Second) of Trusts § 198(1) (1959); Snook v. Trust Co. of
Georgia Bank of Savannah, N.A., 909 F.2d 480, 486-87 (11th Cir. 1990).                An
action for damages for a breach of trust, as distinguished from an
indebtedness arising out of a breach of trust, remains an equitable action.
See Restatement (Second) of Trusts § 198(1) cmt. e (1959).


        The   Brown   children    contend   that   because   they   are   entitled    to
immediate payment of the trust proceeds upon a finding that UMB breached
its fiduciary duty, their action is triable to a jury.              Because the Brown
children are not immediately entitled to any proceeds from the QTIP trust,
their claims regarding that trust are equitable and are thus not triable
to a jury.     As to the residual trust, the Brown children's claims regarding
UMB's    mishandling of the promissory notes and real estate are also
equitable claims, as those claims are for damages, rather than for an
indebtedness arising out of a breach of trust.             The only legal claim the
Brown children have stated against UMB is that UMB charged the residual
trust for inappropriate attorney's fees.           This claim against UMB is triable
to a jury.


        The Brown children's claim against Thomas for inducing Maurice to
release the trust assets is a legal claim triable to a jury.                The claim
that Thomas participated in a breach of fiduciary duty is also a legal
claim triable to a jury.         Although the court's determination of whether a
breach occurred may determine the outcome of the issue, it is for the jury
to determine whether Thomas induced the breach if it did occur.




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                                     V.


     A district court's decision regarding the admission of evidence is
committed to its sound discretion and will not be disturbed absent an abuse
of discretion.   McGautha v. Jackson County, Mo. Collections Dep't, 36 F.3d
53, 57 (8th Cir. 1994), cert. denied, 115 S. Ct. 2561 (1995).        Without
belaboring the particulars of the circumstances under which they were
recorded, we conclude that the district court did not abuse its discretion
in ruling inadmissible transcripts of telephone conversations between
Jonathan Brown and certain of UMB's employees and agents.


     We deny the Brown children's motion to remand the case to a different
judge.    We will take such an action only where the district court has
exercised "`such a high degree of favoritism or antagonism as to make fair
judgment impossible.'"    Hunter v. Delo, 62 F.3d 271, 276 (8th Cir. 1995)
(quoting Liteky v. United States, 114 S. Ct. 1147, 1157 (1994)).    Although
there were exchanges between the district court and counsel for the Brown
children that manifested the district court's impatience with counsel and
its skepticism about the bona fides of the action, we do not believe that
they manifest the degree of favoritism or antagonism that would make fair
judgment impossible in the context in which this case will proceed on
remand.


     The judgment is reversed and the case is remanded to the district
court for trial.


     A true copy.


            Attest:


                   CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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