Court of Appeals of Missouri, Western District, Third Division
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Clay County, Missouri. Honorable Janet Lodwick Sutton, Judge.
John Edmiston, Warrensburg, MO, for Appellant.
Kim Summers, Kansas City, MO, for Respondent.
Before Division Three: Gary D. Witt, P.J., Joseph M. Ellis, and Thomas H. Newton, JJ. Witt, P.J., and Ellis, J. concur.
Thomas H. Newton, Judge.
Ms. Katherine A. Cox appeals the summary judgment entered in favor of Old Republic National Title Insurance Company (Old Republic). We reverse.
Factual and Procedural Background
Mr. Dennis Cox and Ms. Cox defaulted on a loan that refinanced their house. US Bank Nat'l Ass'n v. Cox, 341 S.W.3d 846, 849 (Mo. App. W.D. 2011). Ms. Cox had solely executed a promissory note of $261,000, secured by a deed of trust bearing the Coxes' signatures. Id. at 848. The property identified in the deed of trust mistakenly referred to an adjacent tract of land. Id. at 849. US Bank, the holder of the promissory note and deed of trust, filed an amended petition that requested a reformation of the deed of trust to correctly describe the Coxes' property. Id. Additionally, the petition requested an award of the amount of the promissory note, under an unjust enrichment theory. Id. The Coxes counterclaimed, seeking a declaratory judgment that the deed of trust was void and a legal nullity. Id.
After a bench trial, the trial court denied US Bank's petition and found in the Coxes' favor. Id. at 850. US Bank appealed and then assigned the promissory note and deed of trust to its title insurance company. Id. The Coxes filed a motion to dismiss the appeal based on the assignment. Id. This court acknowledged the assignment, but denied the motion to dismiss. Id. at 851. We affirmed the trial court's judgment. Id. at 857. Specifically, we held that substantial evidence supported the trial court's finding that Mr. Cox's signature was a forgery and its conclusion of law that the deed of trust was thereby nullified. Id. at 856. We also held that the law supported the trial court's denial of the unjust enrichment claim against the Coxes because the evidence showed that the original lender received what it had " bargained for," which was a promise of repayment from Ms. Cox, whose genuine signature was on the promissory note. Id. at 853.
Old Republic, a title insurance company and the endorsee of the note, then sued Ms. Cox for damages to collect the balance owed on the promissory note. Ms. Cox filed an answer, denying the allegations relating to the assignments of the note and asserting res judicata and collateral estoppel as affirmative defenses. She argued
that Old Republic, the assignee of US Bank, should not be allowed to split its cause of action against her. Old Republic filed a motion for summary judgment on its claim and on Ms. Cox's affirmative defenses. Ms. Cox filed a response. The trial court granted summary judgment in Old Republic's favor. Ms. Cox appeals.
Standard of Review
Our review of a trial court's decision to grant summary judgment is de novo. Mobley v. Baker, 72 S.W.3d 251, 256 (Mo. App. W.D. 2002). In determining the propriety of the summary judgment, we use the same criteria the trial court used in determining whether to grant summary judgment. Id. The moving party must show that no genuine dispute exists as to the material facts and that the undisputed facts entitle it to judgment as a matter of law. Id ...