JOHNATHAN BOSWELL v. THOMAS J. O'NEIL, DWIGHT BETHUREM, AMIE BOSWELL DEWANE, JAMES B. BOSWELL, JOSEPH A. BOSWELL, and INDEPENDENT STAVE COMPANY, LLC, JOHN DOE(S), and JANE DOE(S) ( 2022 )

JOHNATHAN BOSWELL, )
)
Appellant, )
) No. SD37077
vs. )
) FILED: March 2, 2022
THOMAS J. O'NEIL, DWIGHT BETHUREM,)
AMIE BOSWELL DEWANE, )
JAMES B. BOSWELL, )
JOSEPH A. BOSWELL, and INDEPENDENT )
STAVE COMPANY, LLC, JOHN DOE(S), )
and JANE DOE(S), )
)
Respondents. )
APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY
Honorable Judge James S. Grantham
AFFIRMED
Johnathan Boswell ("Appellant") appeals the judgment in favor of trustees, Thomas J.
O'Neil ("O'Neil") and Dwight Bethurem ("Bethurem") (collectively, "trustees"), Amie Boswell
Dewane, James B. Boswell, Joseph A. Boswell (collectively, "siblings"), Independent Stave
Company, LLC ("ISCO"), and John and Jane Does (collectively, "Respondents") in a trust action
involving the Lois K. Boswell Trust dated December 30, 1983 ("the Trust"). The trial court
granted summary judgment in favor of Respondents on two grounds: (1) section 456.10-1005's
five-year statute of limitations, barring Appellant's breach of trust claim; and (2) the claim
preclusion doctrine, barring all other claims.1 Appellant raises five points on appeal. Finding no
merit in Appellant's points, we affirm the judgment.
Background
In 1983, Lois K. Boswell ("Lois") executed the Trust for the benefit of her adult son and
his children, including Appellant and siblings.2 The Trust provided Appellant and siblings with
one share apiece to be administered as separate trust estates for each child with full distribution
of the principal to be made on his or her 29th birthday. Pursuant to the terms of the Trust,
Appellant's interest in the Trust terminated no later than his 29th birthday on June 19, 2012.
Lois died in 2001. Following Lois's death, Appellant was involved in two civil cases
involving members of the Boswell family and ISCO Holding Company in Florida, which settled
in 2006 (the "2006 Severance and Settlement Agreement").3 As a result of that settlement,
Appellant was paid in excess of $8,680,898.20.
In December 2019, Appellant sued siblings, trustees, and ISCO in Missouri. His petition
asserted claims for a breach of trust agreement against all Respondents, tortious interference
with an inheritance expectancy against all Respondents, unjust enrichment against siblings,
ISCO, and John and Jane Doe, and money had and received against siblings, ISCO, and John
and Jane Doe. Appellant alleged the trustees withheld or concealed information related to his
beneficial interest in the Trust and that Trust assets were redistributed to siblings and ISCO.4
Respondents filed their answer and raised the affirmative defenses of section 456.10-1005's
statute of limitations, claim preclusion, and accord and satisfaction.
1 RSMo Section 456.10–1005 was adopted in 2004. All rule references are to Missouri Court Rules 2020.
2 Because many of the parties share the same last name, we refer to Lois Boswell by her first name to avoid
confusion. No disrespect is intended.
3 ISCO is a different entity than ISCO Holding Company. It is unclear from the statement of
uncontroverted material facts and responses what causes of actions were alleged in these two lawsuits.
4 He also alleged Trust assets were redistributed to the predecessor in interest of ISCO, and/or some other
individuals whose identities are currently unknown.
2
Respondents moved for summary judgment on all claims in Appellant's petition.5 In the
motion for summary judgment, Respondents argued that they were entitled to judgment as a
matter of law because:
1. [Appellant] executed settlement agreements dated as of August 19, 2006
whereby he released all claims which he now attempts to remake,
2. The R.S.Mo. § 456.10-1005 statute of limitations bars [Appellant's] claims, in
that more than five years have elapsed since the termination of his interest in
the Trust and/or the termination of the trust, Ellison v. Fry, 437 S.W.3d 762,
765 (Mo. 2014), and/or
3. The claim preclusion doctrine bars the claims, in that the claims made by
[Appellant] are or should have been made in prior litigation. See Younghaus
v. Lakey, 559 S.W.2d 30 (Mo. Ct. App. W.D. 1977).
Respondents' joint summary judgment motion was accompanied by a 14-paragraph
statement of uncontroverted material facts. Appellant filed the following response to
Respondents' statement of uncontroverted material facts:
1. [Appellant] executed a Limited General Release between [Appellant], et al., and
ISCO Holding Company, et al., dated as of August 19, 2006. [Ex. (a)]. Para. 5(a),
Affidavit of David Waugh, Ex. 1.
RESPONSE: Admit.
2. [Appellant] executed a Severance and Settlement Agreement [Appellant], et al.,
and ISCO Holding Company, et al., dated as of August 19, 2006. [Ex. (b)]. Para.
5(b), Aff. of David Waugh, Ex. 1.
RESPONSE: Admit.
3. A Stipulation and Final Order of Dismissal with Prejudice of the action Tiffany
S. Boswell, et al., v. John J. Boswell, et al., 15th Judicial Circuit, Palm Beach
County, Florida, Case No. 50 2003 CA-011883 AN, was previously filed in that
action. [Ex. (c)]. Para. 5(c), Aff. of David Waugh, Ex. 1.
RESPONSE: Admit.
4. A Stipulation of Voluntary Dismissal with Prejudice of the action Tiffany S.
Boswell, et al., v. John J. Boswell, et al., 15th Judicial Circuit, Palm Beach County,
Florida, Case No. 50 2003 CA-011883 AN, was previously filed in that action.
[Ex. (d)]. Para. 5(d), Aff. of David Waugh, Ex. 1.
5Respondent O'Neil filed a motion to join the other Respondents' motion for summary judgment, which
was granted.
3
RESPONSE: Deny. Respondents' Exhibit 1(d) is the same as Respondents'
Exhibit 1(c) and is entitled "Stipulation and Final Order of Dismissal With
Prejudice" dated October 23, 2006.
5. A Stipulation of Voluntary Dismissal with Prejudice of the action Tiffany S.
Boswell, et al., v. John J. Boswell, et al., 15th Judicial Circuit, Palm Beach County,
Florida, Case No. 50 2003 CA-012396 AN, was previously filed in that action.
[Ex. (e)]. Para. 5(e), Aff. of David Waugh, Ex. 1.
RESPONSE: Admit.
6. [Appellant] was paid in excess of $8,680,898.20 as consideration for the
Limited Release, Severance and Settlement Agreement and the dismissals of the
two previously filed lawsuits. See Boswell Severance and Settlement Agreement
Distribution Accounting. [Ex. (f)]. Para. 5(f), Aff. of David Waugh, Ex. 1.
RESPONSE: Admit.
7. Ex. (g) is an accounting of payments made to [Appellant] directly from his sub-
trust's account pursuant to the Lois K. Boswell Irrevocable Trust dated December
30, 1983, as part of an audit by BDK, LLP requested by the Trust. Para. 5(g), Aff.
of David Waugh, Ex. 1.
RESPONSE: Deny and move to strike. Respondents' citation to the record does
not support the facts asserted. There is no Paragraph 5(g) within Mr. Waugh's
affidavit attached as Exhibit 1 to Respondents' motion. Moreover, Mr. Waugh's
affidavit does not properly authenticate the purported accounting attached to his
affidavit as Exhibit (g). Mr. Waugh does not testify: (1) that he is or was trustee
of the Lois K. Boswell Irrevocable Trust dated December 30, 1983; or (2) that he
is or was an employee of BDK, LLP; or (3) that the purported accounting is a
business record of ISCO Holding Company or Independent Stave Company which
satisfies the requirements of Mo. Rev. Stat. §§ 490.680, 490.692.
8. Ex. (g) was made based upon a review of original banking documents. Para. 6,
Aff. of David Waugh, Ex. 1 and Para. 8, Affidavit. of [Bethurem], Ex. 2.
RESPONSE: Deny and move to strike. Respondents' citation to the record does
not support the fact asserted. Mr. Waugh's affidavit and [Bethurem's] affidavit
lack foundation to show that the entirety of Exhibit (g) was based on a review of
original banking documents, or how they would have personal knowledge of that
fact. Paragraph 10 of [Bethurem's] affidavit alleges that the original banking
documents that purportedly serve as the basis for Exhibit (g) were destroyed.
9. Ex. (j) are business records of Commerce Bank [Appellant] sub-trust of the
Trust, reflecting payments and transfers made to or on account of [Appellant] for
the February 2006 to February 2008 time period.
RESPONSE: Admit that Exhibit (j) constitutes business records of Commerce
Bank for an account titled in the name of the "Boswell Family Trust FBO
Johnathan Boswell dated 12-22-83, Paul Walker Trustee" ending in 3401, and
that said records reflect payments and transfers to or for the benefit of
4
[Appellant] between April 2006 and October 2006. Petitioner denies the balance
of Paragraph 9. See Respondents' Exhibit (j).
10. All of the payments on account of [Appellant] referenced in Exhibits (f), (g),
and (j) were made as indicated in said exhibits either directly to [Appellant] or
on [Appellant's] behalf. Para. 8, Aff. of David Waugh, Ex. 1 and Para. 9, Aff. of
[Bethurem], Ex. 2.
RESPONSE: Admit that the payments identified in Exhibits (f) and (j) for the
benefit of [Appellant] were made to him. Petitioner denies the balance of
Paragraph 10 and moves to strike as the portion of Paragraph 8 of Mr. Waugh's
affidavit regarding Exhibit (g), as well as Paragraph 9 of [Bethurem's] affidavit
regarding Exhibit (g), lack foundation. See Responses to Paragraphs 7 and 8,
above.
11. [Bethurem] on October 6, 2004 gave a deposition in the case of Tiffany
Boswell, et al., v. John Boswell, et al., Circuit Court of the Fifteenth Judicial
Circuit, Palm Beach County, Florida, Case No. 502003CA011883XXOCAJ, which
is attached as Ex. (h). Paragraph 4, Aff. of [Bethurem], Ex. 2.
RESPONSE: Admit.
12. At the October 6, 2004 deposition, [Bethurem] produced a true and correct
copy of the Lois K. Boswell Irrevocable Trust dated December 30, 1983 which was
marked as Ex. 24 to said deposition and is attached as Ex. (i). Paras. 3 and 5, Aff.
of [Bethurem], Ex. 2.
RESPONSE: Admit.
13. [Appellant] turned 29 years of age on June 19, 2012. [Appellant's] Second
Amended Petition, paragraph 12.
RESPONSE: Admit
14. Pursuant to the terms of the Trust, [Appellant's] interest under the Trust
terminated no later than [Appellant's] 29th birthday on June 19, 2012. Trust at
Article I, paragraph B(5). Ex. (i) at page 5.
RESPONSE: Admit.
The trial court granted Respondents' motion for summary judgment, finding "that as a
matter of law § 456.10-1005 is the appropriate statute of limitations and [Appellant's breach of
trust count] is time barred." The trial court "also [found] that the claim preclusion doctrine bars
all other claims made by [Appellant]." Appellant appeals from that summary judgment in five
points.
5
Standard of Review and Applicable Legal Principles
Our review of the trial court's decision to grant summary judgment is de novo. Green v.
Fotoohighiam, 606 S.W.3d 113, 115 (Mo. banc 2020). "Our de novo standard of review means
that we look at the summary judgment issues presented on appeal as the trial court should have
initially under Rule 74.04, and we give no deference to the trial court's ruling." Great
Southern Bank v. Blue Chalk Constr., LLC, 497 S.W.3d 825, 834 (Mo. App. S.D. 2016).
We review the record in the light most favorable to the party against whom summary judgment
was entered, and that party is entitled to the benefit of all reasonable inferences from the record.
Green, 606 S.W.3d at 115-16.
"Summary judgment practice in Missouri is governed by Rule 74.04 and [our Supreme
Court's] decision in ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854
S.W.2d 371 (Mo. banc 1993)." Green, 606 S.W.3d at 116. Summary judgment "shall be entered
if 'there is no genuine issue as to any material fact and . . . the moving party is entitled to
judgment as a matter of law.'" State ex rel. Koster v. Olive, 282 S.W.3d 842, 846 (Mo. banc
2009) (citing Rule 74.04(c)(6)).
While we apply de novo review to summary judgment, it does not grant appellants a
license to craft arguments free from the constraints of Rule 74.04. Blue Chalk, 497 S.W.3d at
836. "Rather, our de novo decision on appeal must be in accordance with all the requirements
of Rule 74.04 and, therefore, must be made in the very same manner the trial court should have
applied that rule in the first instance." Id.
Summary judgment under Rule 74.04 involves a three-step inquiry. Id. at 828-29.
"[T]he first inquiry is the identification of the movant and whether the movant is a 'claimant,'
see Rule 74.04(a), or a 'defending party,' see Rule 74.04(b)." Id. at 828. Here, Respondents are
movants and a "defending party" since they are the parties that filed the motion for summary
judgment based on certain affirmative defenses.
6
The second inquiry is whether the movant's motion for summary judgment properly
pleads all of the elements as detailed in Rule 74.04(c)(1), sometimes called the prima facie
showing. Id. "This Rule 74.04(c)(1) inquiry focuses only upon the movant's summary judgment
motion and its required elements." Id. at 829. As a defending party, Respondents may
establish a right to summary judgment by showing the undisputed facts support each of the
necessary elements of the defending party's properly pleaded affirmative defense.6 Coonce v.
Simons, 520 S.W.3d 821, 823 (Mo. App. S.D. 2017). Here, Respondents sought summary
judgment based on the affirmative defenses of section 456.10-1005's five-year statute of
limitations, claim preclusion, and release.
"The third and final inquiry occurs only when the movant has made 'a prima facie
showing that there are no genuine issues of material fact and the movant is entitled to judgment
as a matter of law[.]'" Blue Chalk, 497 S.W.3d at 829 (quoting ITT, 854 S.W.2d at 381).
Points 1, 3 and 5 challenge summary judgment on this basis—whether a genuine issue of
material fact exists. Points 2 and 4 challenge summary judgment on the grounds that the trial
court misapplied the law.
Point 1: The Affirmative Defense of Section 456.10-1005's Statute of Limitations –
Genuine Issue of Material Fact
Point 1 relates to the entry of summary judgment in favor of trustees on Appellant's
breach of trust claim based on section 456.10-1005's five-year statute of limitations. In point 1,
Appellant argues there was a genuine issue of material fact as to whether Appellant's cause of
action was filed more than five years after Appellant's interest in the Trust terminated.7 Because
6 There are two other ways a defending party may establish a right to summary judgment: (1) by showing
undisputed facts negating any one of the claimant's elements; and (2) the claimant, after an adequate
period of discovery, has been unable, and will not be able, to produce evidence sufficient to allow the trier
of fact to find the existence of any one of the claimant's elements. Id. These, however, are not relevant to
this appeal.
7 Section 456.10-1005, in relevant part, states:
a judicial proceeding by a beneficiary against a trustee for breach of trust must be
commenced within five years after the first to occur of:
7
this point challenges only whether a genuine issue of material fact exists (and not whether
Respondents made a prima facie showing of their affirmative defense of the statute of
limitations), this is a challenge to the third inquiry of summary judgment and our analysis is
confined to that inquiry.
Under the third inquiry (i.e., whether a dispute as to a genuine issue of material fact
exists), the non-movant has the burden to show that one or more of the material facts shown by
movants are, in fact, genuinely disputed. Id. To show there is a genuine dispute about a
material fact, the non-movant must not only deny the alleged material fact, but must support
that denial with specific references to the discovery, exhibits, or affidavits that demonstrate
specific facts showing a genuine issue for trial. Id. Unless contradicted by the non-moving
party's response, facts in support of the party's motion are accepted as true. Green, 606 S.W.3d
at 116. Finally, only genuine issues as to material facts—facts from which the right to judgment
flows—preclude summary judgment. Id. at 115. A genuine issue exists "where the record shows
two plausible but contradictory accounts of the essential facts[.]" Sundermeyer v. SSM
Reg'l Health Services, 271 S.W.3d 552, 553–54 (Mo. banc 2008). "[A] relevant, cogent, and
logical argument on appeal that a genuine issue exists as to a particular material fact must
necessarily track the Rule 74.04 requirements." Blue Chalk, 497 S.W.3d at 834.
To track the Rule 74.04 requirements, Appellant must direct us to the particular Rule
74.04 numbered paragraphs in Respondents' statement of uncontroverted material facts and his
response that shows the fact is genuinely in dispute. See id. at 834. Appellant fails to do this.
Instead of identifying any specific denial of a Rule 74.04 numbered paragraph, Appellant argues
that "there is a genuine issue of material fact as to whether [Appellant] ever received final
...
(2) the termination of the beneficiary's interest in the trust[.]
§ 456.10-1005.
8
distribution from his sub-trust which would have terminated his beneficial interest in the
Trust[.]" But this argument is not linked to any of his responses pursuant to Rule 74.04(c). In
fact, Appellant does not point us to any of his Rule 74.04 numbered paragraphs where he denies
such a material fact. "Arguments, such as this, that are completely disconnected from the
numbered paragraph material facts in the summary judgment record, as required by Rule 74.04,
are analytically useless in an appellate review that requires this [C]ourt to properly apply Rule
74.04." Id. at 835. As this Court explained in Blue Chalk:
To grant such relief in accordance with Rule 74.04 would require us to identify
for Appellants the particular numbered paragraph material fact in the summary
judgment record that corresponds to the relevant cited case-law element,
ascertain whether Appellants' cited portions of the exhibits are specifically
referenced in their denial in their response to that particular numbered
paragraph, and then, if so, fashion an argument for Appellants as to how those
specifically referenced portions of those exhibits establish a plausible but
contradictory account of that fact, i.e., a genuine issue, as opposed to
[Respondent's] specifically referenced evidentiary support for the existence of
that particular numbered paragraph material fact. Such actions are the essence
of advocacy and would thrust this [C]ourt into the prohibited role of an advocate
for Appellants.
Id. at 835-36. This we will not do. Point 1 is denied.
Point 2: Affirmative Defense of Section 456.10-1005's Statute of Limitations –
Misapplication of the Law
Appellant's point 2 also fails. In point 2, Appellant argues the trial court erred in
applying the same five-year statute of limitations as discussed above on the grounds that the
terms of the 2006 Severance and Settlement Agreement did not terminate the Trust. This
argument is meritless for at least two reasons. First, there is no indication the trial court
concluded that the 2006 Severance and Settlement Agreement terminated the Trust. Rather,
Appellant, himself, unequivocally admitted that the Trust terminated no later than his 29th
birthday in 2012—over five years before he filed his petition in December 2019. Paragraph 14 of
his response to Respondents' joint statement of uncontroverted material facts states:
Pursuant to the terms of the Trust, [Appellant's] interest under the Trust
terminated no later than [Appellant's] 29th birthday on June 19, 2012. Trust at
Article I, paragraph B(5). Ex. (i) at page 5.
9
Response: Admit
This admission by Appellant was sufficient for the trial court to conclude there was no genuine
issue of material fact that Appellant's interest in the Trust terminated no later than June 19,
2012.
Second, by admitting that his interest under the Trust terminated no later than June 19,
2012, Appellant waived any argument that the Trust terminated at some later time. "It is well
settled that this Court will not permit a party to: (1) take a position on a matter that is directly
contrary to, or inconsistent with, one previously assumed; or (2) complain on appeal about an
alleged error in which he joined, acquiesced or invited by his conduct at trial." Potter v. Hy-
Vee, Inc., 560 S.W.3d 598, 606 (Mo. App. S.D. 2018); see Klineline v. Klineline, 481
S.W.3d 551, 554 (Mo. App. S.D. 2015); Ard v. Shannon Cty. Comm'n, 424 S.W.3d 468, 476
(Mo. App. S.D. 2014). Appellant is bound by the admission he made in his response to
Respondents' statement of uncontroverted material facts and may not now make a new
argument on appeal. Point 2 is denied.
Point 3: The Affirmative Defense of Claim Preclusion – Genuine Issue of Material
Fact
In point 3, Appellant argues the trial court erred in determining the doctrine of claim
preclusion barred Appellant's claims for tortious interference with an inheritance expectancy,
unjust enrichment, and money had and received, claiming a genuine issue of material fact exists
as to whether Appellant previously litigated or could have asserted these claims in the prior
Florida litigation.8 Again, this is a challenge to the third inquiry (i.e., whether a genuine issue of
material fact exists) and not a challenge to whether Respondents' properly pleaded each element
of their affirmative defense of claim preclusion (i.e., a challenge to Respondent's prima facie
8 "Claim preclusion" is the modern term for res judicata, a Latin phrase meaning "a thing adjudicated."
Dahn v. Dahn, 346 S.W.3d 325, 331 (Mo. App. W.D. 2011). It acts as a bar to the reassertion of a cause
of action that has been previously adjudicated between the same litigants or those in privity with them.
Jeffrey v. Cathers, 104 S.W.3d 424, 430 (Mo. App. E.D. 2003).
10
case). Appellant's point 3 suffers from the same defects discussed in point 1. He fails to identify
any particular Rule 74.04 numbered paragraph connected to his argument that demonstrates a
dispute as to any material fact.9 Point 3 is denied.
Points 4 and 5: The Affirmative Defense of Release
Points 4 and 5 claim the trial court erred in granting summary judgment in favor of
Respondents on any of Appellant's claims based on the affirmative defense of release. Point 4
claims the trial court misapplied the law in determining that the 2006 Severance and Settlement
Agreement released Appellant's claims and Point 5 claims there is a genuine issue of material
fact "in that [Appellant] has controverted Respondents' facts which alleged that [Appellant]
previously released his claims in connection with the 2006 Severance and Settlement
Agreement and the Limited General Release."
While the trial court found it was uncontroverted that the parties entered into a
Severance and Settlement Agreement and Limited General Release in the 2006 litigation in
Florida, the trial court did not enter summary judgment based on the affirmative defense of
release. Instead, the trial court found, as a matter of law, section 456.10-1005's statute of
limitations barred Appellant's breach of trust claim and that all other claims were barred by the
doctrine of claim preclusion. Rule 84.13(b) does not permit this Court to reverse a trial court's
judgment unless we find that error was committed by the trial court against an appellant
materially affecting the merits of the action. Empire Dist. Elec. Co. v. Coverdell, 588
S.W.3d 225, 244 (Mo. App. S.D. 2019). Appellant cannot demonstrate the trial court committed
9 The only numbered paragraph referenced in Appellant's argument comes from Appellant's "Sur-Reply in
Opposition to Respondents' Motion for Summary Judgment." It does not come from a response to any
statement of uncontroverted material fact. In Appellant's sur-reply, he argued that Respondents "have
tried to camouflage" additional material facts "within their reply memorandum in support." Appellant
then attempted to "deny" an "additional material fact" that was never actually included in the statement of
uncontroverted material facts. Because his "denial" was not in reference to any material fact, Appellant's
argument fails.
11
an error in granting summary judgment based on the affirmative defense of release because the
trial court did not, in fact, grant summary judgment based on release. Points 4 and 5 are denied.
Conclusion
The trial court's judgment is affirmed.
MARY W. SHEFFIELD, P.J. – Opinion Author
GARY W. LYNCH, C.J. – CONCURS
DON E. BURRELL, J. – CONCURS
12