FROM THE CROSS COUNTY CIRCUIT COURT [NO. 19CV-08-75]
HONORABLE CHALK MITCHELL, JUDGE.
Brock, for appellant.
Woodruff Law Firm, P.A., by: Jennifer Woodruff Douglas; and
Chrestman Group, PLLC, by: Keith L. Chrestman, for appellees.
WAYMOND M. BROWN, JUDGE.
a dispute between siblings over their late father's
estate. Appellant Margaret Ellis sued her brother and
sister-in-law, appellees Roger Thompson and Frances Thompson,
for an accounting, to set aside certain gifts allegedly made
to Roger, and for various torts arising out of Roger's
alleged mishandling of the property of Edward Thompson, the
now deceased father of Margaret and Roger, as a signatory on
Edward's bank accounts, and under a power of attorney
granted to Roger. After a bench trial, the circuit court
ruled that the statute of limitations barred some of
Ellis's claims, that she lacked standing to bring other
claims, that the alleged gifts would not be set aside, and
that Roger's accounting was adequate. We affirm the
and Procedural History
Thompson was the father of four children: appellant Margaret
Ellis, appellee Roger Thompson, Phillip Thompson, and Barbara
Mugge. Roger and Frances Thompson are husband and wife. In
August 1997, Edward executed a power of attorney appointing
Roger as his attorney-in-fact to act on Edward's behalf
and for all purposes. That power of attorney was recorded on
January 31, 2002.
November 12, 1997, Roger and Frances were added as
"agents" authorized to sign on Edward's
accounts at First National Bank and were listed as
"authorized signers" only.
December 21, 2000, Roger and Phillip Thompson and their wives
purchased two tracts totaling approximately 685 acres from
Edward. They executed a promissory note for the purchase
price in the amount of $256, 556. The terms of the note were
seven annual payments of $39, 017.28 at 6 percent interest,
and if not paid timely, then the entire note would bear
interest at 10 percent. The note also contains an undated,
typed statement signed by Edward that the note was to be
canceled and forgiven in the event of his death. A copy of
the note containing handwritten statements purportedly signed
by Edward that payments were waived by gift on various dates
was introduced into evidence.
2002, Edward received over $400, 000 from the estate of his
mother, Rosa Thompson, who died in 1997.
died on July 18, 2006. Upon Edward's death, Roger opened
the estate and was appointed personal representative. Ellis
responded with a petition to set aside the will and to
contest the will. On January 24, 2007, an agreed order was
entered setting aside the will. On February 21, 2007, Roger
filed an inventory in the probate case, and Ellis filed an
objection to the inventory, claiming that it understated the
filed the present case on May 21, 2008, separate from the
probate case, asserting causes of action for breach of
fiduciary duty and conversion and seeking an accounting and
damages. Ellis alleged that Roger had failed to properly
inventory Edward's property upon Edward's death; that
Roger had transferred property from Edward to himself using
the power of attorney; that Roger had failed to account for
the inheritance Edward received from his mother's estate;
that Roger and Phillip failed to pay the purchase price for
the real property they purchased from Edward, claiming that
Edward waived the payments as gifts; that Edward was
incompetent to make gifts; and that Roger and Frances had
converted Edward's property for their own use.
12, 2008, Roger and Frances answered Ellis's complaint,
denying that she had any causes of action. They also asserted
various affirmative defenses, including lack of standing and
the statute of limitations.
September 24, 2014, the circuit court entered an order
directing Roger and Frances to submit an accounting by
October 22, 2014, and to make a good-faith effort to obtain
all the records necessary to complete the
October 23, 2014, Roger filed an affidavit averring that he
had, with his attorney's assistance, reviewed
Edward's available bank records dating back to 2002 and
had compiled a partial list of checks written on the account.
He asserted that most of the checks were written with
Edward's knowledge and permission or based on his
(Edward's) previous customs. Roger stated that the checks
written for cash were to pay Edward's caretaker or to
reimburse her for Edward's household expenses. He also
said that he did not sign any checks pursuant to the power of
attorney because he had been added to the account to help pay
his father's bills that he was instructed to pay. The
affidavit stated that neither Edward nor Roger used the
checks in sequential order and that Roger did not have copies
of some checks. Finally, Roger said that checks were
consistently written for certain routine expenses, including
Edward's medications, car tags, insurance, and monthly
December 17, 2014, Ellis filed a pleading raising multiple
issues. First, she objected to the affidavit filed by Roger
as being an accounting. She asserted that the affidavit
lacked sufficient documentation to be considered an
accounting. Ellis further alleged that on December 12, 2014,
Roger did file an accounting in the probate case that showed
he was self-dealing by paying his farming operations from
estate funds without probate court authorization.
hearing on Ellis's objections was held in March 2016, and
the court ruled that Roger's affidavit was not sufficient
as an accounting. On the day of the hearing, Roger and
Frances amended their prior accounting with a spreadsheet
prepared by counsel.
March 30, 2016, Ellis filed a renewed objection to
Roger's accounting. She repeated her original objections
to Roger's October 2014 affidavit. As for the updated
accounting, Ellis asserted that numerous checks were missing,
that income was omitted, that receipts and disbursements were
unaccounted for, that Roger and Frances may have destroyed
financial records, and that checks listed in the previous
spreadsheet were not included in the revised spreadsheet.
Ellis further objected to numerous disbursements as not being
proper expenses, such as checks for cash, checks for Roger
and his children, and checks to Roger's farming
operations. She also asserted that Roger failed to account
for any CDs or the promissory note and that documentation was
lacking for the disbursements.
trial, the court, with the agreement of the parties,
bifurcated the issues, with Roger and Frances presenting
their case first as they had the burden of proof to show they
handled Edward's accounts properly. At the conclusion of
Roger and Frances's case, the circuit court ruled from
the bench and found that, based on the circumstances, the
accounting was adequate and showed how the money had been
spent three years before Edward's death. The court found
no evidence showing a pattern of self-dealing.
then presented her case for breach of fiduciary duty and
conversion. Ellis did not believe Edward was competent and
thought he was influenced by Roger and Frances. She presented
evidence that Edward had Alzheimer's and dementia and
that there was evidence possibly indicating Parkinson's
and depression. She also produced evidence that Edward owned
several CDs but that his ...