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Juan v. Growe

Court of Appeals of Missouri, Eastern District, Second Division

April 10, 2018

CRISTIAN J. JUAN AND ANTHONY J. ADEWUNMI, Appellants,
v.
GARY A. GROWE AND GROWE, EISEN & KARLEN, LLC, Respondent.

          Appeal from the Circuit Court of St. Louis County Honorable Joseph L. Walsh

          Philip M. Hess, Judge.

         Introduction

         Cristian Joel Juan and Anthony Joseph Adewunmi ("Plaintiffs") were real estate agents facing disciplinary proceedings brought by the Missouri Real Estate Commission ("MREC"). Plaintiffs hired attorney Gary Growe ("Defendant") to represent them and based upon Growe's advice entered into a settlement agreement with the MREC. Thereafter, the United States brought criminal charges against Plaintiffs. Plaintiffs retained other counsel to represent them in the criminal proceedings and through a plea agreement pled guilty to one of seven counts charged in exchange for the dismissal of the other six counts. Plaintiffs did not appeal or file any post-conviction motions while their sentences were in effect. After serving their sentences, however, Plaintiffs sued Defendant for legal malpractice, alleging Defendant's advice to enter into a settlement agreement with the MREC, which contained facts the United States allegedly used to indict them, led to their criminal charges. Defendant moved for leave to add his law firm, Growe, Eisen & Karlen, LLC (collectively "Counterclaimants") as a counter-plaintiff. The court granted leave and Counterclaimants filed a claim for breach of contract against Adewunmi for the money he failed to pay for his representation. The trial court granted summary judgment for Defendant on the malpractice claim and for Counterclaimants on the breach of contract claim. Adewunmi raises five points on appeal, four related to his malpractice claim, and one related to Counterclaimants' breach of contract claim. Juan, acting pro se, raises three points, which go to his malpractice claim. We affirm.

         Factual and Procedural Background

         Plaintiffs worked together on several real estate transactions from 2003 to 2005. In these transactions, Plaintiffs prepared applications for financing on behalf of the buyers which contained false, material statements about the buyer's ability to repay. In 2005, the United States began investigating Plaintiffs' real estate practice. In 2008, the MREC instituted disciplinary proceedings against Plaintiffs and Plaintiffs hired Defendant to represent them. On January 11, 2010, on the advice of Defendant, Plaintiffs entered into a settlement agreement with the MREC, agreeing to have their real estate licenses revoked in exchange for the case being dismissed.

         The settlement agreement contained a joint stipulation of facts and conclusions of law referencing seven counts related to seven separate real estate transactions occurring in St. Louis from August 2003 to August 2005. The stipulation stated Plaintiffs practiced real estate as part of the "Adewunmi Team, " and for each count, stated the "Adewunmi Team" knowingly assisted the buyer and lender in the preparation of a loan application that included false information.

         On June 3, 2010, the United States filed a seven count indictment against Plaintiffs. Count I charged Plaintiffs with conspiracy to commit mail and wire fraud, counts II through VI charged Plaintiffs with mail fraud, and count VII charged Plaintiffs with knowingly making a false statement for the purpose of obtaining a loan to be accepted and guaranteed by the United States Department of Housing and Urban Development ("HUD"). The indictment alleged Plaintiffs worked on several real estate transactions between September 1, 2003, and September 1, 2005, where Plaintiffs prepared applications for financing on behalf of the buyers which contained false, material statements about the buyer's ability to repay. Specifically, the indictment referenced five transactions in St. Louis, only one of which was listed in the MREC disciplinary proceeding. The conspiracy charge (count I) referenced all five transactions, the mail fraud charges (counts II through VI) applied to each property individually, and the knowingly making a false statement to HUD charge (count VII) only applied to the one property in common with the criminal and MREC charges.

         In January 2011, Plaintiffs signed plea agreements in which they agreed to plead guilty to knowingly making a false statement to HUD (count VII) in exchange for the dismissal of counts I through VI. On January 11, 2011, the district court accepted Plaintiffs' pleas upon determining that they were entered knowingly and voluntarily and supported by an independent factual basis. At the plea hearing, Plaintiffs acknowledged that they were under oath and could be prosecuted for making a false statement or perjury. Plaintiffs told the court that, other than the plea agreement, no promises or assurances had been made to them to cause them to plead guilty, no one had tried to force or coerce them into pleading guilty, and they were pleading guilty on their own free will. Plaintiffs agreed with the prosecutor's recitation of the facts he argued would be proven if they went to trial and admitted to committing the acts.

         On April 7, 2011, Adewunmi was sentenced to three years' probation and ordered to pay a $100 special assessment and restitution of $127, 000. On May 20, 2011, Juan was sentenced to one year and one day' imprisonment and to one year of supervised release. Juan was also ordered to pay a $100 special assessment and restitution of $127, 000. Plaintiffs were ordered jointly and severally liable for the criminal monetary penalties imposed. Plaintiffs did not directly appeal their convictions or move for post-conviction relief while serving their sentences.

         On November 13, 2014, Juan filed his petition for legal malpractice against Defendant. On January 5, 2015, Adewunmi filed his petition for legal malpractice against Defendant. The court consolidated the cases for discovery and motion rulings. Plaintiffs alleged they retained Defendant to represent them in the action brought against them by the MREC; that Defendant advised them to enter into a settlement agreement and stipulated facts requiring them to admit they assisted a buyer and lender in the preparation of loan documents that contained false information to ensure that the buyer would secure a home loan; that Defendant advised them that the stipulation could not be used against them in any other legal action; that based upon that advice, Plaintiffs entered into a settlement agreement with the MREC; that thereafter they were charged in federal court with fraud and other violations of federal criminal law; that the federal criminal charges were based on the stipulation they signed and the stipulation was admissible as evidence against them in the criminal proceedings; and that their criminal attorneys advised them to enter a plea agreement dismissing six of seven counts but requiring them to plead guilty to one count of knowingly making a false statement to HUD because the stipulation was admissible evidence against them.

         Counterclaimants filed a claim against Adewunmi alleging breach of contract for Adewunmi's failure to pay them the amounts due for the legal representation provided. On May 8, 2015, Defendant filed motions for summary judgment against Plaintiffs.

         On September 16, 2015, Juan filed a verified petition for writ of error coram nobis in federal district court.[1] Juan alleged his guilty plea was not knowing and voluntary because his plea counsel concealed a conflict of interest that arose during plea negotiations, misrepresented the government's plea offer to him, and coerced him into pleading guilty. He also alleged the court failed to adequately inform him of the risks associated with dual representation during the hearing on the propriety of joint representation.

         On February 26, 2016, the federal district court dismissed Juan's petition with prejudice. The court found Juan could have discovered and raised his claims in a direct appeal or in a post-conviction motion before completing his supervised release, and that the plea transcript demonstrated that Juan entered his guilty plea knowingly and voluntarily. Based on Juan's testimony at the plea hearing and because Juan failed to demonstrate his actual innocence, the court concluded he could not show a fundamental error was committed such that circumstances existed compelling action to achieve justice.

         Defendant filed amended motions for summary judgment against Plaintiff. On April 21, 2016, the trial court granted summary judgment for Defendant. Plaintiffs appealed. We dismissed those appeals without prejudice because there was no final, appealable judgment due to Counterclaimants' remaining breach of contract claim against Adewunmi.

         On March 31, 2017, Counterclaimants motioned for summary judgment on their claim against Adewunmi. On May 31, 2017, the trial court entered summary judgment in favor of Counterclaimants. This appeal follows.

         Standard of Review

         The standard of review on appeal regarding summary judgment is essentially de novo. Foster v. St. Louis County, 239 S.W.3d 599, 601 (Mo. banc 2007). Summary judgment will be upheld on appeal if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Id. We review the record in the light most favorable to the party against whom judgment is sought. State ex rel. Mo. Highway & Transp. Comm'n v. Dierker, 961 S.W.2d 58, 60 (Mo. banc 1998). Facts set forth by affidavit or otherwise to support the motion are taken as true unless contradicted by the non-movant's response to the summary judgment motion. Id. The non-movant receives the ...


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