Court of Appeals of Missouri, Southern District, Second Division
CORY WAGONER,  An individual and beneficiary of Missouri, Petroleum Storage Tank Insurance Fund trust, Plaintiff-Appellant,
CONOCOPHILLIPS, a Delaware Corporation, DON MCNUTT, JIM FORD, HARRY BOZOIAN, SCHUYLER MARIEA, DANNY OPIE, MELVIN SCHEBAUM, RENEE SLUSHER, JOHN ALBERT, TOM KOLB, TOM PFEIFFER, and SOONER INSURANCE COMPANY, Defendants-Respondents.
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Timothy W.
Perigo, Special Judge
IN PART, REVERSED IN PART, AND REMANDED
Wagoner ("Wagoner"), a contributor to, and
beneficiary of the Missouri Petroleum Storage Tank Insurance
Fund ("the Fund"),  appeals the amended judgment of the trial
court granting summary judgment in favor of
ConocoPhillips. In three points
on appeal, Wagoner asserts trial court error in granting
summary judgment. We grant Wagoner's second point in
part, reverse the judgment as to Count IV of Wagoner's
petition and remand for further proceedings as to that count,
but otherwise deny Wagoner's points and affirm the
and Procedural History
history of this case is complex. We recite only those facts
necessary for the resolution of the issues before
matter arises out of allegations that ConocoPhillips failed
to return money paid to it by the Fund, as reimbursements for
taking corrective actions and cleaning up leaking underground
November 2012, Wagoner filed suit against ConocoPhillips in
the Circuit Court of Greene County ("Wagoner
I"). Wagoner alleged that, as a petroleum storage
tank owner and taxpayer, as well as a contributor to and a
beneficiary of the Fund, he was entitled to seek damages from
ConocoPhillips due to money having been wrongfully obtained
by ConocoPhillips from the Fund.
January 3, 2013, Wagoner filed a second amended petition.
This petition added the Fund as "fiduciary and
beneficiary, " included additional allegations about the
Fund, and specified that "[r]elief and recovery sought
herein by [Wagoner] is for the benefit of [Wagoner] as a
participant, and the Fund as fiduciary and beneficiary of
recovery of damages asserted."
Fund and ConocoPhillips moved to dismiss Wagoner's second
amended petition on the grounds that Wagoner lacked standing.
In March 2013, the trial granted the Fund's motion to
dismiss, but denied that of ConocoPhillips. That same month,
Wagoner filed a third amended petition to add a Racketeer
Influenced and Corrupt Organizations ("RICO") claim
April 2013, ConocoPhillips removed the case to the U.S.
District Court for the Western District of Missouri on the
basis of the RICO claim. Wagoner filed a motion to remand.
The district court denied Wagoner's motion for remand,
reasoning: "[Wagoner] is not the right party to bring
claims on behalf of the . . . Fund . . . against
ConocoPhillips, a third party. Rather, that right belongs
solely to the . . . Fund." Wagoner subsequently
voluntarily dismissed his federal case.
Missouri Attorney General then brought suit in the Circuit
Court of St. Louis City against ConocoPhillips, asserting
similar allegations, in State of Missouri, ex rel. Koster
v. ConocoPhillips Company, 1322-CC00929 (the "St.
September 13, 2013, Wagoner also brought a new action in the
Circuit Court of Greene County on behalf of the Fund
("Wagoner II") against ConocoPhillips and
its insurer, Sooner Insurance Company, as well as the current
board of trustees of the Fund (the "Board").
the claims in both Wagoner II and the St. Louis
lawsuit rested upon the contention that ConocoPhillips
defrauded the Fund by failing to disclose insurance that
would have covered the remediation costs reimbursed by the
Fund. Both suits claimed that alleged insurance coverage
precluded ConocoPhillips from obtaining reimbursements from
the Fund. However, the Wagoner II petition also
sought, in Count IV, removal of the Fund's trustees for
alleged breaches of fiduciary duty occurring both before and
during litigation, a claim which was not asserted or even
suggested in the St. Louis lawsuit.
attempted to intervene in the St. Louis lawsuit for the
purpose of moving to dismiss it in favor of Wagoner
II. The St. Louis court denied Wagoner's motion to
The record does not support a finding that Wagoner has the
requisite interest in the subject matter of this case to
warrant intervention. Wagoner has paid into the PST Fund, but
has not made any claim against it, nor has he been denied a
claim, nor is there any evidence that the PST Fund will be
unable to meet its statutory obligations to Fund participants
in the future.
Wagoner does not have a private cause of action to seek
reimbursements for the Fund. Section 319.127 relates to
enforcement of the PST Fund statutes. The statute contains no
express provision either establishing or prohibiting a
private cause of action. There is, however, an express
provision authorizing the Department of Natural Resources to
"request either the attorney general or a prosecuting
attorney to bring any action authorized in this section in
the name of the people of the State of Missouri." RSMo
§ 319.127. See Johnson v. Kraft Gen. Foods,
Inc., 885 S.W.2d 334, 336 (Mo. 1994). Our Supreme Court
has said that, ."[w]hen the legislature has established
other means of enforcement, we will not recognize a private
civil action unless such appears by clear implication to have
been the legislative intent." Id. . . . The
Court concludes that Wagoner does not have an independent
cause of action for the reimbursement of PST Fund monies.
Wagoner asserts that the PST Fund is a special statutory
trust to which he is a beneficiary, giving him standing to
sue for reimbursement from [ConocoPhillips] on behalf of the
Fund. The argument is without merit, as Wagoner cannot assert
a claim on behalf of the PST Fund against a third-party. . .
. In Missouri, the property of the trust can only be
recovered by the trustee, and the beneficiaries have no legal
capacity to sue for [trust res] recovery. Baker v.
Dale, 123 F.Supp. 364, 368 (W.D. Mo. 1954). In its order
denying Wagoner's motion for remand [in Wagoner
I], the Federal District Court correctly stated Missouri
law on this issue:
Under [Missouri] statutes and Missouri case law, Wagoner is
not the person to enforce remedies at law, such as
declaratory judgment and fraud claims, against
[ConocoPhillips]. . . . "As a general rule, a
beneficiary may not bring an action at law on behalf of a
trust against a third party. . . . The right to bring such an
action belongs to the trustee." Intl Ass'n of
Fire Fighters, Local 2665 v. City of Clayton, 320 F.3d
849, 851 (8th Cir. 2003) (citing Restatement (Second) of
Trusts §§ 280, 281 (1) (1957)). This includes
claims committed by a third party with respect to trust
property of which the beneficiary is not in possession.
See Restatement (Second) of Trusts §281 cmt. B
(1959). Wagoner's participant status is similar to a