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Imler v. First Bank of Missouri

Court of Appeals of Missouri, Western District, Third Division

November 25, 2014

WILLIAM R. IMLER, AS SUCCESSOR TRUSTEE OF THE VIRGINIA L. IMLER TRUST, Appellant,
v.
FIRST BANK OF MISSOURI, Respondent

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Appeal from the Circuit Court of Clay County, Missouri. The Honorable Janet L. Sutton, Judge.

Benjamin S. Creedy, St. Joseph, MO, for appellant.

Justin M. Nichols, Kansas City, MO, for respondent.

Before: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge. All concur.

OPINION

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Cynthia L. Martin, Judge

William R. Imler, as successor trustee of the Virginia L. Imler Trust (" Imler Trust" ), appeals the grant of summary judgment in favor of First Bank of Missouri (" First Bank" ) and its employee Salvator DiMiceli (" DiMiceli" ) (collectively " Defendants" ) in connection with the Imler Trust's lawsuit which sought damages following First Bank's foreclosure of property owned in part by the Imler Trust. Because the Defendants have not established a right to judgment in their favor as a matter of law, we reverse the grant of summary judgment and remand this matter for further proceedings.

Factual and Procedural Background

In January 2007, the Imler Trust acquired a 50% interest in real property located in Wyandotte County, Kansas (" Property" ), from American Equities, L.L.C., a Missouri limited liability company (" American Equities" ).[1] As a result of the transaction, the Imler Trust and American Equities each owned a one-half interest in the Property. In November 2007, American Equities sought a loan from First Bank. The loan was to be collateralized, in part, by a mortgage on the Property.[2] That mortgage could not be secured without the Imler Trust's signature on the mortgage. The Imler Trust, through its then trustee Virginia Imler (" Ms. Imler" ), signed the mortgage, a trust certificate, and other documents related to the loan transaction. The Imler Trust was not asked to sign, however, the promissory note evidencing the extension of credit by First Bank to American Equities. At the time of the loan transaction, Ms. Imler lived in California. The documents she was required to sign on behalf of the Imler Trust were sent to her in California.

The loan to American Equities went into default in August 2009. First Bank filed a lawsuit to foreclose the Property in the District Court of Wyandotte County, Kansas (" Foreclosure Lawsuit" ). The Foreclosure Lawsuit named American Equities as a defendant and sought judgment against American Equities for its default on the promissory note secured by the Property. The Foreclosure Lawsuit also named the Imler Trust as a defendant. However, no personal judgment was sought against the Imler Trust. Rather, First Bank sought only to have its mortgage declared a first and prior lien over and above any interest claimed by the Imler Trust in the Property and to have that lien foreclosed. First Bank attempted service on the Imler Trust by registered mail to a post office box in California. A return receipt signed by " R. M. Hodgdon" was filed in the Foreclosure Lawsuit to evidence service on the Imler Trust. The record does not indicate who " R. M. Hodgdon" is or that person's relationship

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to Ms. Imler or to the Imler Trust.

Neither American Equities nor the Imler Trust filed an answer in the Foreclosure Lawsuit. The judgment entered in the Foreclosure Lawsuit declared First Bank's mortgage to be a first and prior lien on the Property, authorized foreclosure of the mortgage on the Property, and provided that First Bank " have and recover an in rem judgment against" American Equities and the Imler Trust for the unpaid balance of the promissory note, interest therein, and other costs.

In September 2011, the Imler Trust filed suit against American Equities and its principals (" American Equities Lawsuit" ). Among other things, the Imler Trust alleged that American Equities fraudulently misrepresented the purpose of the loan from First Bank to induce the Imler Trust to consent to a mortgage on the Property. The Imler Trust alleged that Ms. Imler had been told that the purpose of the loan was to permit development of the Property from which she would financially benefit, when the real purpose of the loan was to refinance debt American Equities was carrying from other business ventures in which the Imler Trust did not have an interest. The Imler Trust secured a default judgment against American Equities and its principals in the American Equities Lawsuit.

In February 2013, William R. Imler (" Mr. Imler" ), as successor trustee of the Imler Trust,[3] filed the instant lawsuit against First Bank and DiMiceli. The suit alleged claims for misrepresentation, negligent misrepresentation, and fraudulent misrepresentation.[4] Similar to the allegations made in the American Equities Lawsuit, the Imler Trust alleged that First Bank, through its employee DiMiceli, represented to Ms. Imler that the purpose of the loan to American Equities was to permit development of the Property, when the real purpose of the loan was to refinance other debt held by American Equities.

The Defendants filed a motion for summary judgment alleging a right to judgment as a matter of law on all of the claims alleged in the Imler Trust's lawsuit. The Defendants alleged in the motion that: (i) the Imler Trust was estopped to assert all of its claims as they should have been asserted as compulsory counterclaims in the Foreclosure Lawsuit; (ii) the Imler Trust was judicially estopped to assert all of its claims against the Defendants as they are inconsistent with allegations made in the American Equities Lawsuit; and (iii) the trust certificate and mortgage signed by the Imler Trust authorized use of the Property for any debt incurred by American Equities and precluded the Imler Trust from establishing reliance, an essential element of its claims.

The Imler Trust opposed the motion for summary judgment and alleged that: (i) it had not been properly served with process in the Foreclosure Lawsuit as to require it to assert compulsory counterclaims against the Defendants; (ii) that its representations in the American Equities Lawsuit were not inconsistent with those asserted against the Defendants; and (iii) that language in the trust certificate and mortgage relied on by the Defendants does not support the legal conclusion that the Imler Trust could not establish reliance on the Defendants' representations about the purpose for the loan.

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On February 24, 2014, the trial court entered a judgment that granted the Defendants' motion for summary judgment without findings of fact or conclusions of law (" Judgment" ). The Imler Trust filed this timely appeal.

Standard of Review

Our Supreme Court set out the standard of review for the grant of summary judgment in Goerlitz v. City of Maryville :

The trial court makes its decision to grant summary judgment based on the pleadings, record submitted, and the law; therefore this Court need not defer to the trial court's determination and reviews the grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04. In reviewing the decision to grant summary judgment, this Court applies the same criteria as the trial court in determining whether summary judgment was proper. Id. Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law. Id. The facts contained in affidavits or otherwise in support of a party's motion are accepted " as true unless contradicted by the non-moving party's response to the summary judgment motion." Id. Only genuine disputes as to material facts preclude summary judgment. Id. at 378. A material fact in the context of summary judgment is one from which the right to judgment flows.
A defending party . . . may establish a right to summary judgment by demonstrating: (1) facts negating any one of the elements of the non-movant's claim; (2) " that the non-movant, after an adequate period for discovery, has not been able and will not be able to produce sufficient evidence to allow the trier of fact to find the existence of any one" of the elements of the non-movant's claim; or (3) " that there is no genuine dispute as to the existence of facts necessary to support movant's properly pleaded affirmative defense." Id. at 381. Each of these three methods individually " establishes the right to judgment as a matter of law." Id. . . .
. . . " The record below is viewed 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." . . . Hammack v. Coffelt Land Title, Inc., 284 S.W.3d 175, 177-78 (Mo. App. W.D. 2009) (internal quotations and citations omitted). See also ITT Commercial Fin., 854 S.W.2d at 376.

333 S.W.3d 450, 452-53 (Mo. banc 2011).

Here, the Judgment does not identify the basis on which it was entered. " Where a trial court has granted summary judgment without specifying the basis upon which the motion was granted, this court will affirm the grant of summary judgment under any appropriate theory." Central Missouri Elec. Co-Op. v. Balke, 119 S.W.3d 627, 635 (Mo. App. W.D. 2003) (citation omitted). " [A] trial court[] . . . is presumed to have based its decision on the grounds specified in [the] motion if the trial court's order does not set forth its reasoning." Id. (citation omitted).

Analysis

The Imler Trust raises five points on appeal claiming error in the grant of summary judgment. The Imler Trust argues that: (i) it was never properly served in the Foreclosure Lawsuit and thus had no obligation to assert compulsory counterclaims against First Bank; (ii) the claims asserted in this case would not have been

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compulsory counterclaims in the Foreclosure Lawsuit even assuming proper service of process; (iii) the claims asserted in this case are not judicially estopped because they are not clearly and ambiguously inconsistent with the claims asserted in the American Equities Lawsuit; (iv) neither the trust certificate or the mortgage contain language authorizing First Bank to extend a loan to American Equities for any purpose as to preclude the Imler Trust from establishing reliance on representations about the purpose for the loan; and (v) even assuming summary judgment could be properly entered as to First Bank, it could not be entered as to DiMiceli because he was not a party in the Foreclosure Lawsuit, and the mortgage and trust certificate include no representations purporting to have been made to him individually. We address the points in order, combining discussion of Points One and Two.

Points One and Two: The Imler Trust was not Obligated to Assert Compulsory Counterclaims in the Foreclosure Lawsuit because it ...


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