Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Michael
W. LYNCH, P.J.
Sheffield ("Appellant") appeals the trial
court's judgment dismissing his claims against Greg
Matlock, Husch Blackwell, L.P. ("Husch"), Cory
Collins, and Shelly Rosenfelder (all four collectively
"Respondents" and Husch, Collins, and Rosenfelder
sometimes collectively "Respondent Attorneys").
Appellant argues: (1) the trial court erred in dismissing his
claims against Respondents based on claim preclusion because
Respondents were not parties to Greene County Circuit Court
case number 1531-AC05819-01 ("Prior Case"); (2) the
trial court erred in declaring that the withdrawal of his
"[Rule] 52.11 Motion" in Prior Case was
ineffective; (3) the trial court erred in dismissing his
claims against Respondents for lack of standing and failure
to state a claim; (4) the trial court erred when it ruled
Respondent Attorneys were immune from claims that they
assisted Matlock in violating the Foreclosure Consulting Act
("FCA"); and (5) the trial court erred in denying
Appellant leave to amend because it "allow[s] criminals
to evade justice." Finding no merit in Appellant's
fourth and fifth points against Respondent Attorneys and that
the resolution of those two points is dispositive of this
appeal as to them, we affirm the trial court's judgment
dismissing Appellant's claim in count two of his petition
against Respondent Attorneys. Because Appellant has standing
under section 407.943 to bring his FCA violation claim
against Matlock as alleged in count one of his petition and
Matlock's res judicata (claim preclusion) affirmative
defense asserted in his motion to dismiss is not established
by the record on appeal, we reverse the trial court's
judgment as to Appellant's count one claim against
Matlock and remand the case back to the trial court for
in Appellant's Petition and Procedural Background
petition alleges the following. In 2013, Appellant hired Alec
and Lauren Financial Investments, LLC ("A &
L"), a Missouri limited liability company, to assist him
in halting the foreclosure of his home. Matlock is A &
L's managing member. A & L, acting through Matlock,
agreed to assist Appellant by purchasing the home from
Appellant for $2, 066.97 and selling it back to him for $9,
857.04, plus interest. A & L hired Respondent Attorneys
to draft the documents for the transaction. A & L,
represented by Respondent Attorneys, later filed Prior Case
for rent and possession, seeking to evict Appellant from the
home for failing to pay the amount owed to A & L. In that
case, Appellant counterclaimed against A & L for
violating the FCA and obtained a judgment against A & L
on that claim.
Appellant filed this case against Respondents, alleging
"Unlawful Foreclosure Consulting" by Matlock (Count
1) and "Accessory Liability" against Respondent
Attorneys (Count 2). The first count of Appellant's
Petition against Matlock alleges, among other matters:
Greg Matlock, in the course [sic] scope of his agency for [A
& L], represented that he could stop the foreclosure on
[Appellant's] home, if [Appellant] borrowed 2066.97 from
[A & L]. . . .
. . . .
Greg Matlock, in the course and scope of his agency for [A
& L], performed foreclosure consulting services as
defined by the Missouri Foreclosure Consultant Act. RSMo
407.935 et. Seq. Those services include planning a
transaction to halt the foreclosure pending on
[Appellant's] home, representing to [Appellant] that the
transaction it planned and proposed would halt the
foreclosure, having deeds and contracts drawn up, and
appraisals made. Greg Matlock hired attorneys and a title
company to aid him in planning the transaction, drawing up
the contracts, performing the closing and to perfect [A &
L]'s interest by ejecting [Appellant] from his home. . .
. . . .
On March 3, 2017, the Court, in [Prior Case], found that,
through actions of its agent Greg Matlock, that [A & L]
acted as a foreclosure consultant, and violated the [sic]
Rsmo 407.940 in "one or more" ways, finding for
[Appellant] on Count II of his amended Counterclaim. As such
Greg Matlock is a foreclosure consultant under Rsmo 407.935
and has performed an illegal and criminal act under Rsmo
The second count of Appellant's Petition against
Respondent Attorneys alleges, among other matters:
Greg Matlock hired [Husch] to aid in providing foreclosure
consulting services for [A & L]. Those services included
planning the transaction and drafting the documents that
evidence the September 12, 2014 transaction at issue here.
Defendant Cory L. Collins, in the course and scope of his
employment with [Husch], planned and drafted the
documentation for the transaction of September 12, 2014.
. . . .
Also on December 2, 2015, Ms. Shelly Rosenfelder, acting in
the course and scope of her employment with [Husch], despite
personally being put on notice that she was proceeding on a
voided contract, aided Greg Matlock and [A & L], by
ejecting [Appellant] from his home, thereby perfecting [A
& L]'s unlawful interest in [Appellant's] home in
. . . .
While attorneys are exempted from the [FCA], they may not
help others violate the act. Per Rsmo 562.046. "It is no
defense to any prosecution for an offense in which the
criminal responsibility of the defendant is based upon the
conduct of another that … (2) The defendant does not
belong to that class of persons who was legally capable of
committing the offense in an individual capacity."
For aiding [A & L] by planning the transaction, executing
the transaction, and ultimately perfecting [A & L']s
unlawful interest by ejecting [Appellant] from his home,
[Respondent Attorneys] are all liable to [Appellant] by
operation of RSMo 562.041 as accessories to the acts of [A
& L] and Greg Matlock, and are jointly and severally
liable to [Appellant] with [A & L] and Greg Matlock.
Attorneys filed a motion to dismiss Appellant's petition.
In their motion, they contend that Appellant's claim
against them should be dismissed because it fails to state a
claim for which relief could be granted for three reasons:
(1) the claim was precluded by Prior Case (referred to as the
"rule against splitting causes of action[ and the doctrine
of res judicata"); (2) section 562.041 is a criminal
statute and does not give rise to a private civil claim
(referred to as lack of "standing"); and (3)
"absent exceptional circumstances, an attorney is not
liable for an injury to a nonclient arising out of the
representation of the client[.]" As to the last reason,
the motion further asserts that Appellant's petition does
not "allege any conduct constituting the exceptional
circumstances that would allow [Appellant] to assert a claim
also filed a motion to dismiss, claiming that Appellant's
claim against him was barred by Prior Case and the
application of "the rule against splitting causes of
action[ and the doctrine of res judicata" and
that Appellant "does not have standing or authority to
assert claims of criminal liability."
trial court thereafter entered judgment sustaining
Respondents' motions to dismiss on the grounds that
Appellant's claims were litigated in Prior Case and,
therefore, Appellant was precluded from litigating those
claims in this case and that Appellant "cannot state a
claim against [Respondents] because it is well established
that attorneys are not liable to third parties for actions
taken during the course of representation." Within
thirty days thereafter, Appellant filed a motion to set aside
the judgment and for leave to file an amended petition. The
trial court denied both motions, and this appeal timely
followed. Additional facts, as required and related to
particular points, will be set out in our discussion of
Appellant's points relied on.
of Review and Applicable Legal Principles
A motion to dismiss for failure to state a cause of action is
solely a test of the adequacy of the plaintiff's
petition. It assumes that all of plaintiff's averments
are true, and liberally grants to plaintiff all reasonable
inferences therefrom. No attempt is made to weigh any facts
alleged as to whether they are credible or persuasive.
Instead, the petition is reviewed in an almost academic
manner, to determine if the facts alleged meet the elements
of a recognized cause of action, or of a cause that might be
adopted in that case.
Bosch v. St. Louis Healthcare Network, 41 S.W.3d
462, 464 (Mo. banc 2001) (quoting Nazeri v. Missouri
Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993)
(internal citations omitted)).
ease of analysis, we address Appellant's points out of
of Count Two against Respondent Attorneys
fourth point, Appellant claims the trial court erred in
dismissing his claim against Respondent Attorneys because the
second count in his petition against them pleaded an
"exceptional act" exception to the general rule
that "lawyers are not liable to third parties for the
acts of their clients or for the actions of the lawyer in the
ordinary course of the practice of law."
an attorney is not liable to a third party who is not his or
her client because the attorney is not in an attorney-client
relationship with the third party." Roth v. La
Societe Anonyme Turbomeca France, 120 S.W.3d 764, 776
(Mo.App. 2003) (citing Macke Laundry Serv. Ltd.
P'ship v. Jetz Serv. Co., Inc., 931 S.W.2d 166, 176-
77 (Mo.App. 1996)). This general rule arises out of "the
attorney's fiduciary duty to the client, and the public
policy that attorneys be able to discharge that duty by
freely using those procedures that are necessary to
competently represent their clients unfettered by fear of
personal liability." Macke, 931 S.W.2d at 177.
exception to this general rule, which has come to be known as
the "exceptional circumstances" rule, are cases
involving fraud, collusion, or malicious or tortious acts by
the attorney. Donahue v. Shughart, Thomson & Kilroy,
P.C., 900 S.W.2d 624, 627 (Mo. banc 1995);
Macke, 931 S.W.2d at 177. "Although the rule
states that an attorney may be liable to a nonclient when the
attorney has committed a 'tortious act,' not all
tortious conduct is encompassed by the rule. The rule is
limited to intentional torts." Macke, 931
S.W.2d at 178 (citing Mark Twain Kansas City v.
Jackson, 912 S.W.2d 536, 538 (Mo.App.1995)). Because
"the client's misconduct cannot be imputed to the
attorney[, ]" Macke, 931 S.W.2d at 176 (citing
Henderson v. Cape Trading Co., 316 Mo. 384, 289 S.W.
332, 335 (1926)), this rule necessarily focuses only upon the
second count of Appellant's petition alleges that
Respondent Attorneys conducted themselves in two respects:
first, they "planned and drafted the documentation for
the transaction of September 12, 2014[, ]" and, second,
they represented their client in court "by ejecting
[Appellant] from his home[, ]" while on notice from
Appellant that Appellant claimed that the underlying ...