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Philips v. Citimortgage, Inc.

Court of Appeals of Missouri, Eastern District, Northern Division

May 6, 2014

JENNIFER PHILIPS, AMBER PHILIPS, MARIAH PHILIPS, AND IAN PHILIPS NEXT FRIEND JENNIFER PHILIPS, Appellants,
v.
CITIMORTGAGE, INC., Respondent

Page 325

[Copyrighted Material Omitted]

Page 326

Appeal from the Circuit Court of Pike County. Honorable James D. Beck.

FOR APPELLANT: Kristin M. Perry, Bowling Green, MO.

FOR RESPONDENT: Elizabeth C. Carver, Veronica A. Gioia, St. Louis, MO.

ROBERT M. CLAYTON III, Chief Judge. Clifford H. Ahrens, J., and Mary R. Russell, Sp.J., concur.

OPINION

Page 327

ROBERT M. CLAYTON III, Chief Judge.

Jennifer Philips and her children, Amber Philips, Mariah Philips, and Ian Philips by his next friend, Jennifer Philips (collectively " Plaintiffs" ), appeal the judgment of the trial court dismissing their claims against Citimortgage, Inc. (" Citimortgage" ). We affirm in part and reverse and remand in part.

I. BACKGROUND

Michael Philips (" Michael" ), Jennifer Philips' husband, died unexpectedly on March 18, 2010. Michael Philips had previously executed a deed of trust on their residence, located at 401 Jackson Street in Pike County, Missouri. Jennifer Philips (" Jennifer" ) did not sign the deed of trust for the property. On the date of Michael's death, shortly after returning from the hospital, an individual from Citimortgage called the residence and asked to speak to

Page 328

Michael Philips. The individual calling spoke to Jennifer Philips, and she informed the person Michael had just died. Individuals saying they represented Citimortgage subsequently called the residence approximately four times a day for the next few weeks. In addition, Citimortgage sent individuals to photograph the property on numerous occasions, including one occasion which caused flashes in the window of the residence at night.

Following Michael's death, Jennifer filed suit against Citimortgage, seeking declaratory judgment and damages based upon Citimortgage's alleged actions. Jennifer sought to have the deed of trust on the property declared void, and she requested an award of damages based upon Citimortgage's " extreme, outrageous, atrocious, utterly intolerable" conduct which caused her severe emotional distress resulting in bodily harm. An associate circuit judge granted summary judgment in favor of Jennifer on her claim for declaratory judgment, declaring the deed of trust void. However, the associate circuit judge also granted summary judgment in favor of Citimortgage on Jennifer's claim for damages.

While Citimortgage's motion for summary judgment was pending before the associate circuit judge, Plaintiffs filed the action which is the subject of the present appeal. Citimortgage filed an initial motion to dismiss, which was denied by the trial court. Thereafter, Plaintiffs filed a first amended petition. The first amended petition asserted claims for trespass, invasion of privacy, prima facie tort, and nuisance. Citimortgage filed a motion to dismiss the first amended petition, arguing Jennifer's claims were barred by res judicata, and asserting the remaining claims of her children should be dismissed for failure to state a claim. The trial court granted Citimortgage's motion to dismiss, finding Jennifer's claims were barred by res judicata, and finding the remaining claims failed to state a cause of action. Plaintiffs now appeal.

II. DISCUSSION

III. Res Judicata - Claim ...


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