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Scarlett Investments, LLC v. First Home Savings Bank

Court of Appeals of Missouri, Southern District, Second Division

July 19, 2017

SCARLETT INVESTMENTS, LLC, [1] Plaintiff-Respondent,
v.
FIRST HOME SAVINGS BANK, DANIEL KATZFEY, Individually, and GREENE COUNTY MISSOURI, Defendants-Respondents, LEONARD BIERI, III, Proposed Intervenor-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Jason R. Brown, Circuit Judge

          OPINION

          WILLIAM W. FRANCIS, JR., J.

         APPEAL DISMISSED

         Leonard Bieri, III ("Bieri"), pro se appellant, appeals the judgment of the trial court, in which the court denied Bieri's "Motion to Join Leonard Bieri, III, as a Party Plaintiff, " in a lawsuit filed by Scarlett Investments, LLC ("Scarlett"), against First Home Savings Bank ("the Bank"), Daniel Katzfey ("Katzfey"), [2] the Greene County Commission ("the County"), and Fidelity Title Agency of Springfield, Inc. In one point on appeal, Bieri alleges the trial court erred in failing to make required determinations, pursuant to Rule 54.04, [3] in that Bieri was a necessary party to the lawsuit. Because of numerous Rule 84.04 violations in Bieri's brief, we dismiss the appeal.

         Factual and Procedural History

         In 2007, Scarlett was the initial developer of a residential subdivision known as "Bristol Park" in Greene County, Missouri. The Bank provided a $900, 000.00 construction loan to Scarlett, pursuant to a promissory note secured by a deed of trust in favor of the Bank.[4] Thereafter, Scarlett sought to obtain a grading permit from the County, which required a performance bond.[5] The bond was posted in the form of a security interest on the Bank's loan pursuant to a "Security Agreement for GRADING PERMIT" ("Security Agreement") entered into October 30, 2007, between Scarlett and the Bank.[6] The Security Agreement provided that a security interest be granted to the County, as a line of credit, in the amount of $171, 324.00 to act as a performance bond guaranteeing Scarlett's completion of the required infrastructure improvements in Bristol Park within a specified period of time.

         Thereafter, Scarlett's project manager hired Gillespie Excavating Company, LLC ("Gillespie"), to provide "all of the construction services" required to develop Bristol Park. At some point prior to September 11, 2008, a dispute arose between Scarlett and Gillespie over the sums owed by Scarlett to Gillespie for Gillespie's services. Gillespie then filed several mechanic's liens and on March 27, 2009, filed a motion to enforce those liens (the "Mechanic's Lien action"). Bieri was allowed to intervene as a defendant in this action, but was dismissed on July 14, 2010, for lack of standing because Bieri "has filed no [mechanic's] lien and no claims have been made against him, and [he] does not have other standing to proceed in this case."

         Subsequently, the Bank discontinued its line of credit to Scarlett for the Bristol Park project. On September 9, 2008, the County required Scarlett to deposit a cash bond in the amount of $97, 890.00 with the Greene County Treasurer prior to recording the final plat for Bristol Park.

         On April 19, 2010, the Bank filed suit due to Scarlett's default on the promissory note. On September 14, 2010, a default judgment was entered in favor of the Bank and against Scarlett and three other defendants in the amount of $1, 628, 209.83. The Bank then requested a writ of sequestration, seeking payment of "[a]ny monies due from the County to [Scarlett] . . . for completion of Bristol Park." The court ordered the County to pay into the court's registry the bond monies due from the County to Scarlett for completion of Bristol Park, which was ultimately paid to the Bank.

         Between 2010 and 2012, Bieri filed at least 6 writs and/or appeals, concerning the subject matter of this dispute, in the Missouri Court of Appeals, Southern District, and the Supreme Court of Missouri, all of which were denied. In 2011, Bieri was also denied a writ of certiorari to the Supreme Court of the United States.

         Undeterred, in May 2013, Bieri brought an action in the United States District Court, Western District of Missouri, regarding the Bristol Park subdivision entitled, "Leonard Bieri, III v. Greene County Planning and Zoning Department; Scarlett Investments, LLC and First Home Savings Bank, " in which the Bank and the County were party defendants. The defendants filed motions to dismiss, which were granted. Bieri then appealed to the United States Court of Appeals for the Eighth Circuit, which denied his challenge to the dismissal of his lawsuit.

         In February 2015, Bieri filed an action in the Circuit Court of Greene County entitled, Leonard Bieri, III, v. Commissioners of Greene County, Missouri, First Home Savings Bank, and Scarlett Investments LLC, " Case Number 1531-CC00250, in which he once again raised issues related to his work on the Bristol Park project. That case was dismissed by the trial court with prejudice based on a

violation of Statute of Limitations for filing Mechanic's Lien; violation Statutes of Limitations relating to other contract or tort actions; insufficient statutory compliance with Mechanic's Lien Statute; collateral estoppel; res judicata; prior election of forum (use of Federal Court); lack of standing by Plaintiff; improper splitting of causes of action; or sovereign or official immunities.

         On August 24, 2015, Scarlett filed suit against the Bank, Katzfey, the Greene County Commission, and Fidelity Title Agency of Springfield, Inc.[7] An amended petition was filed on January 14, 2016.[8]

         On July 27, 2016, Bieri filed a "Motion to Join Leonard Bieri, III, as a Party Plaintiff" ("Motion to Join"), asserting that he was a "necessary party to this action" due to his involvement as "a provider of labor and construction materials to the Bristol Park subdivision project."[9] Bieri asserted he was a third-party beneficiary of the "Security Agreement for Grading Permit" dated October 30, 2007, and/or the bond posted by Scarlett with the County in the amount of $97, 890.00.

         On August 2, 2016, the Bank filed suggestions in opposition to Bieri's motion to join, which were ...


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