Case: 4:20-cv-00302-JCH Doc. #: 69 Filed: 12/11/20 Page: 1 of 8 PageID #: 600
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
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`IN RE THE JOYCE C. DALTON TRUST
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`DAVID P. OETTING, Trustee,
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` Plaintiff,
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` vs.
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`WELLS FARGO BANK, N.A.,
`Former Co-Trustee,
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` Defendant.
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`Case No. 4:20CV302 JCH
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`MEMORANDUM AND ORDER
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`This matter is before the Court on Defendant Wells Fargo Bank, N.A.’s Motion to Dismiss
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`Count VII of Plaintiff’s Amended Complaint, filed October 12, 2020. (ECF No. 46). The motion is
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`fully briefed and ready for disposition.
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`BACKGROUND1
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`In or about 1988, Joyce C. Dalton (“Mrs. Dalton”) created a Revocable Living Trust (the
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`“Trust”). (Amended Complaint (at times “Compl.”), ECF No. 43, ¶ 1). On January 19, 1998, Mrs.
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`Dalton executed a Total Restatement of Revocable Trust Agreement for Joyce C. Dalton. (See Total
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`Restatement of Revocable Trust Agreement, attached to Plaintiff’s original Complaint as Exh. A,
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`ECF No. 6-12). As relevant here, Mrs. Dalton provided that her children born before the date of the
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`1 The majority of the Court’s background section is taken from Plaintiff’s Amended Complaint, to
`which Defendant has not yet filed an answer.
`2 Although Plaintiff did not attach the Total Restatement of Revocable Trust Agreement or other
`exhibits to his Amended Complaint, he attached them to his original Complaint. Because
`Plaintiff references the exhibits in his Amended Complaint, the Court finds it appropriate to
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`Case: 4:20-cv-00302-JCH Doc. #: 69 Filed: 12/11/20 Page: 2 of 8 PageID #: 601
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`Trust included Andrea B. Dalton (“Andrea”) and Arthur R. Dalton, Jr. (Id., Article I(A)). Mrs.
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`Dalton named A.G. Edwards Trust Company3 and her attorney, Plaintiff David P. Oetting, to be co-
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`trustees upon her death, incapacity or resignation. (Id., Article II(B), (C)). After providing for Mrs.
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`Dalton during her lifetime and paying certain expenses, taxes and cash legacies, the Trust provided
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`as follows:
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`Article VI. Residue
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`A.
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`I give the Residue of the Trust Fund, real and personal, wherever
`located, including any property mentioned above but not effectively
`disposed of, to my Descendants who survive me, per stirpes, subject,
`however, to the provisions of the Descendants’ Trusts.
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`Article VII. General Provisions Re Descendants’ Trusts.
`Whenever
`property passes to my Descendants subject to the provisions of the Descendants’
`Trusts, to the extent provided in this Article the property shall not pass outright, but
`instead shall be held by the Trustees under this Agreement in accordance with the
`following directions:
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`A.
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`Such property shall be held in the Descendants’ “Single Trust” if at
`the time in question the term for that trust as applied to that property has
`not yet expired.
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`Article VIII. Single Trust for Descendants.
`shall have these terms:
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`The Descendants’ Single Trust
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`A.
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`During the Single Trust term:
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`1.
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`2.
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`As much of the net income and/or principal of the trust as the
`Trustees may from time to time determine shall be distributed to
`such one or more of my Children and Descendants of any
`deceased Child of mine, in such amounts or proportions, as the
`Trustees may from time to time select, for the recipient’s health,
`education, support in his or her accustomed manner of living, or
`maintenance.
`As much of the net income and/or principal of the trust as the
`Trustees (excluding, however, any “Interested Trustee”) may
`from time to time determine shall be distributed to such one or
`more of my Children and Descendants of any deceased Child of
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`consider them on this Motion to Dismiss.
`3 Defendant is a successor-by-acquisition to A.G. Edwards Trust Company, the original corporate
`Trustee of the Trust. (See Amended Complaint, P. 1 n. 1).
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`Case: 4:20-cv-00302-JCH Doc. #: 69 Filed: 12/11/20 Page: 3 of 8 PageID #: 602
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`3.
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`4.
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`5.
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`6.
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`mine, in such amounts or proportions, as the Trustees (excluding,
`however, any Interested Trustee) may from time to time select,
`for any purpose.
`Any net income not so distributed shall be accumulated and
`from time to time shall be added to principal.
`Without limiting the Trustees’ discretion, I want the Trustees
`to know that, to the extent consistent with the foregoing, it would
`not be contrary to my intent for the Trustees to regard the needs
`of my daughter, ANDREA B. DALTON, who is mentally and
`physically deficient and who is residing in a special care facility
`as more important than those of my son or his Descendants.4
`ANDREA who is an adult qualifies to receive government
`assistance because of her above condition. Without limiting the
`Trustees’ discretion, I want the Trustees to know that, to the
`extent consistent with the foregoing, it would not be contrary to
`my intent for the Trustees to make available to ANDREA or for
`her benefit such income and thereafter principal from this trust as
`will not disqualify her from benefits available to her, unless in the
`sole discretion of a “Disinterested Trustee”, such Trustee
`determines that for her overall benefit additional income and/or
`principal should be paid out for her benefit.
`The Trustees, in their sole discretion, may use and apply the
`net income or principal on behalf of ANDREA directly (without
`the intervention of a legal guardian, conservator and/or custodian)
`for the uses and purposes hereinbefore stated.
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`(Id., Articles VI-VIII). Mrs. Dalton died in 1998, and at that time the Trust became irrevocable.
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`(Compl., ¶ 5). After Mrs. Dalton’s death, Plaintiff and Defendant served as co-trustees of the Trust
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`until Defendant resigned as trustee effective January 1, 2018. (Id., ¶ 7).
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`According to Plaintiff, in or around 2014 he learned that Defendant was paying expenses for
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`Andrea, including her housing and medical care at Emmaus Homes. (Compl., ¶ 9). Plaintiff
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`allegedly disputed Defendant’s payment of the expenses, concerned they would interfere with
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`Andrea’s qualifying for government benefits and thus unnecessarily dissipate Trust assets. (Id.).
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`Around that same time, Emmaus Homes advised both Plaintiff and Defendant that it intended to
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`move Andrea to a new facility. (Id., ¶ 11). The proposed move stood to increase Andrea’s care and
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`4 According to Plaintiff, the primary beneficiary of the Trust is Andrea, the incapacitated adult
`daughter of Mrs. Dalton. (Compl., ¶ 4).
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`Case: 4:20-cv-00302-JCH Doc. #: 69 Filed: 12/11/20 Page: 4 of 8 PageID #: 603
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`living expenses significantly, and Plaintiff maintains he thus repeatedly asked Defendant for
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`information regarding the management of Trust assets. (Id., ¶¶ 11-12). While Defendant provided
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`some information, including monthly statements regarding investments and information regarding
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`invoices from and payments to Emmaus Homes, Plaintiff claims he did not receive adequate
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`information regarding efforts to qualify Andrea for government assistance, including Social Security
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`Disability and Medicaid payments. (Id., ¶ 13).5
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`On or about November 9, 2017, Defendant provided notice that it intended to resign as co-
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`trustee of the Trust. (Compl., ¶ 16).6 On or about January 30, 2018, Defendant filed a Petition for
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`Judicial Approval of Trustee Accounts in the Circuit Court of St. Louis County, Missouri, Probate
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`Division (the “Wells Fargo Lawsuit”). (Id., ¶ 20). Named as Defendants were Andrea (in her
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`capacity as primary beneficiary of the Trust); Colleen and David Barringer (in their capacity as co-
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`guardians of Andrea); Arthur Rex Dalton, Jr. and Tresa Dalton (in their capacity as contingent
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`beneficiaries of the Trust); and Plaintiff (in his capacity as trustee of the Trust). (See Petition for
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`Judicial Approval of Trustee Accounts, attached to Plaintiff’s original Complaint as Exh. F, ECF No.
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`6-6). On or about March 14, 2018, Plaintiff filed a Motion to Collect Trust Property in the Wells
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`Fargo Lawsuit, seeking to collect certain property and records of the Trust from Defendant.
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`(Compl., ¶ 28). Defendant voluntarily dismissed its Petition for Judicial Approval of Trustee
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`Accounts on May 16, 2018, and according to Plaintiff, said dismissal prevented him from being
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`heard on his Motion to Collect Trust Property. (Id., ¶¶ 30-31).
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`On or about January 24, 2020, Plaintiff, as trustee of the Trust, filed a Petition in the Circuit
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`Court of St. Louis County, Missouri, Probate Division, in which he lodged six claims against
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`5 Plaintiff further asserts he repeatedly requested that Defendant produce materials relating to
`internal and external investigations by various government agencies regarding a variety of
`malfeasance and fraud allegedly committed by Defendant. (Compl., ¶ 14).
`6 Defendant’s resignation became effective on January 1, 2018, and Plaintiff has served as sole
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`Case: 4:20-cv-00302-JCH Doc. #: 69 Filed: 12/11/20 Page: 5 of 8 PageID #: 604
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`Defendant Wells Fargo Bank, N.A., as former co-trustee. (ECF No. 6). Defendant removed the case
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`to this Court on February 24, 2020. (ECF No. 1). In a Memorandum and Order entered June 15,
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`2020, the Court dismissed Count III of Plaintiff’s Complaint (for negligence), holding that the
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`potential for conflict between the interests of the Trust beneficiaries, seeking to show the greatest
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`extent of negligence/breach of trust on the part of the trustees, and the interests of Plaintiff, who may
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`resist the introduction of incriminating evidence concerning his own past or present actions, led to
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`the conclusion that Plaintiff was neither the correct nor an effective advocate of the Trust
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`beneficiaries’ rights. (ECF No. 21).
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`On September 16, 2020, with leave of Court, Plaintiff filed his Amended Complaint, in
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`which he purports to bring claims “to recover funds of the Trust that were wrongly disbursed by the
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`former co-trustee Wells Fargo, without Mr. Oetting’s knowledge, and to recover attorney fees from
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`Wells Fargo for litigation that Wells Fargo wrongfully commenced and then abruptly terminated
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`relating to the Trust.” (ECF No. 43, P. 1). Plaintiff lodges the following claims against Defendant:
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`Suit against Former Co-Trustee Wells Fargo for Attorney Fees and Costs Relating to Failure to
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`Timely Turn Over Trust Property (Count I)7; Recovery Against Wells Fargo of Extraordinary Fees
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`and Attorney’s Fees and Costs (Count II); Wrongful Retention and Conversion of Trust Property
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`Against Wells Fargo (Count IV)8; Frivolous and Wrongful Use of Civil Proceedings By Wells Fargo
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`(Count V); Disgorgement of Fees Against Wells Fargo (Count VI); and Claim against Wells Fargo
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`for Violation of the Missouri Merchandising Practices Act (“MMPA”) (Count VII).
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`trustee since that time. (Compl., ¶¶ 18-19).
`7 Plaintiff claims that following its resignation as co-trustee of the Trust, Defendant wrongfully
`elected to withhold money from the transfer of Trust assets, in order to reimburse itself for
`anticipated attorney’s fees and expenses in connection with the Wells Fargo Lawsuit. (Compl., ¶¶
`42-45). While Defendant ultimately repaid the funds it had withheld, Plaintiff claims Defendant’s
`actions forced him to expend time and incur attorney’s fees. (Id., ¶¶ 53, 58).
`8 Plaintiff reserved his dismissed Count III for Negligence against Wells Fargo for Using Trust
`Assets to Pay Andrea Dalton’s Living Arrangements Instead of Obtaining State Assistance.
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`Case: 4:20-cv-00302-JCH Doc. #: 69 Filed: 12/11/20 Page: 6 of 8 PageID #: 605
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`As noted above, Defendant filed the instant Motion to Dismiss on October 12, 2020, seeking
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`dismissal of Count VII of Plaintiff’s Amended Complaint because (a) Plaintiff’s untenable conflict
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`of interest divests him of standing to represent the Trust’s beneficiaries; (b) the five-year statute of
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`limitations has expired on Plaintiff’s MMPA claim; and (c) there exists no obligation for a special
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`need trustee--or any trustee—to apply for public benefits on behalf of a beneficiary. (ECF No. 46).
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`Because it is dispositive, the Court addresses only Defendant’s statute of limitations argument.
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`DISCUSSION
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`The MMPA makes unlawful the “act, use or employment by any person of any deception,
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`fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment,
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`suppression, or omission of any material fact in connection with the sale or advertisement of any
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`merchandise in trade or commerce….in or from the State of Missouri.” Mo. Rev. St. § 407.020.1.
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`According to Plaintiff Defendant represented, and Plaintiff believed, that Defendant had the requisite
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`expertise to manage special needs trusts, and was using its expertise to manage the Trust. (Compl., ¶
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`115). Plaintiff claims that although Defendant represented it would use its expertise to seek and
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`obtain all available government aid for Andrea, it did not seek or obtain all such available aid,
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`instead utilizing Trust assets to pay the expenses incurred in connection with Andrea’s care. (Id., ¶¶
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`116-118). Plaintiff asserts Defendant’s failures resulted in unnecessary expenditures of
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`approximately $800,000 from Trust assets for care that government assistance otherwise would have
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`funded. (Id., ¶ 120).
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`As noted above, in its Motion to Dismiss Defendant asserts that the applicable statute of
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`limitations has run on Plaintiff’s MMPA claim. (See Defendant’s Memorandum in Support of
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`Motion to Dismiss Count VII of First Amended Complaint, P. 4). Under Missouri law, the
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`limitation period for an MMPA claim is five years. See Mo. Rev. Stat. § 516.120. See also Owen v.
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`General Motors Corp., 533 F.3d 913, 921 n. 6 (8th Cir. 2008) (five-year limitation period in §
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`Case: 4:20-cv-00302-JCH Doc. #: 69 Filed: 12/11/20 Page: 7 of 8 PageID #: 606
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`516.120 applies to MMPA claims); Glen v. Fairway Indep. Mortg. Corp., 265 F.R.D. 474, 477 (E.D.
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`Mo. 2010) (“The five-year limitations period provided by Mo.Rev.Stat. § 516.120(2) applies to
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`plaintiffs’ MMPA claim.”).
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`This period begins to run from the time “a reasonable person would have
`been put on notice that an injury and substantial damages may have occurred
`and would have undertaken to ascertain the extent of the damages.” Powel v.
`Chaminade Coll. Preparatory, Inc., 197 S.W.3d 576, 582 (Mo. 2006) (en
`banc); see also State ex. rel. Old Dominion Freight Line, Inc. v. Dally, 369
`S.W.3d 773, 778 (Mo.Ct.App. 2012) (“[T]he test is not when a reasonable
`person knows that damages have occurred, but is when that person would
`have notice of a potentially actionable injury.”).
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`Huffman v. Credit Union of Texas, No. 11-0022-CV-W-ODS, 2013 WL 1121268, at *3 (W.D. Mo.
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`Mar. 18, 2013). “In order for the statute [of limitations] to accrue, plaintiff must have knowledge of
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`the wrong and at least nominal damage, or [knowledge] of something that puts plaintiff on notice to
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`inquire further.” Ball v. Friese Const. Co., 348 S.W.3d 172, 177 (Mo. App. 2011) (internal
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`quotation marks and citation omitted).
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`Upon consideration, the Court finds that Plaintiff’s own allegations demonstrate the statute of
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`limitations has run on Plaintiff’s MMPA claim. As noted above, Plaintiff claims he first learned in
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`2014 that Wells Fargo was paying certain expenses for Andrea, and that he disputed Wells Fargo’s
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`payment of said expenses because he was concerned the payments would interfere with Andrea
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`qualifying for government benefits and thus unnecessarily dissipate Trust assets. (Compl., ¶ 9).
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`Plaintiff further claims he “became concerned whether Wells Fargo and/or Emmaus Homes had
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`taken or were taking appropriate steps to ensure Andrea received all government assistance for
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`which she qualified,” and so he repeatedly asked Defendant for information regarding its
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`management of Trust assets. (Id., ¶¶ 10, 12). Under these circumstances, the Court finds Plaintiff’s
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`MMPA cause of action accrued sometime in 2014, and thus the statute of limitations expired
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`Case: 4:20-cv-00302-JCH Doc. #: 69 Filed: 12/11/20 Page: 8 of 8 PageID #: 607
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`sometime in 2019, prior to Plaintiff’s filing his original Complaint in this matter on January 24,
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`2020. Plaintiff’s MMPA claim must therefore be dismissed as untimely filed.
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`CONCLUSION
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`Accordingly,
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`IT IS HEREBY ORDERED that Defendant Wells Fargo Bank, N.A.’s Motion to Dismiss
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`(ECF No. 46) is GRANTED, and Count VII of Plaintiff’s Amended Complaint is DISMISSED.
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`IT IS FURTHER ORDERED that Defendant’s Motion for Extension of Time to Answer
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`Counts I through VI in Plaintiff’s Amended Complaint (ECF No. 48) is GRANTED, and Defendant
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`is granted until Thursday, December 24, 2020, within which to file its answer to Counts I through
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`VI of Plaintiff’s Amended Complaint.
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`Dated this 11th Day of December, 2020.
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`/s/ Jean C. Hamilton
`UNITED STATES DISTRICT JUDGE
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