Curtis v. James
| Decision Date | 31 March 2015 |
| Docket Number | No. ED 101485,ED 101485 |
| Citation | 459 S.W.3d 471 |
| Parties | Jesse Curtis, Plaintiff/Appellant, v. Richard James and Sharon James, Defendants/Respondents. |
| Court | Missouri Court of Appeals |
459 S.W.3d 471
Jesse Curtis, Plaintiff/Appellant
v.
Richard James and Sharon James, Defendants/Respondents.
No. ED 101485
Missouri Court of Appeals, Eastern District, DIVISION FIVE .
Filed: March 31, 2015
Spencer E. Farris, 523 N. Laclede Station Road, Suite 116, St. Louis, MO 63119, For Appellant.
Nicholas B. Braun, 13321 N. Outer Forty Road, Suite 100, Chesterfield, MO 63017, For Respondents.
Sherri B. Sullivan, J.
Introduction
Jesse Curtis (Appellant) appeals from the circuit court's entry of summary judgment in favor of Richard James and Sharon James (collectively Respondents) on Appellant's petition seeking relief under the Missouri Uniform Fraudulent Transfer Act, Sections 428.005 to 428.059 (the Act).1 We reverse and remand.
Factual and Procedural Background
In a lawsuit pending in the circuit court of Camden County, Appellant alleged he sustained personal injuries on June 1, 2012, while riding as a passenger on a motorized all-terrain vehicle while on Respondents' real property (underlying lawsuit or Camden County action).
On October 8, 2012, the Respondents created the James Family Trust (Trust), and subsequently transferred assets owned by them into the Trust.
On January 23, 2013, Appellant filed his petition in the underlying lawsuit against Respondents for his alleged injuries.
On October 23, 2013, Appellant filed the instant action against Respondents, individually and as trustees for the Trust, pursuant to the Act seeking a judgment voiding the transfers Respondents made to the Trust after June 1, 2012; attaching said assets; entering a lien in favor of Appellant against all assets in the Trust; appointing a receiver to take charge of the assets; and entering an injunction prohibiting further disposition of Respondents' assets.
On November 27, 2013, Appellant dismissed Sharon James from the underlying lawsuit and added Jeffrey Cole James as a defendant. Appellant also amended his petition, setting forth two counts: Count I against Richard James for negligent entrustment of a motorized vehicle to Jeffrey Cole James, and Count II against Jeffrey Cole James for negligence in the operation of the motorized vehicle. This action is pending in the circuit court of Camden County. Appellant does not currently
have a lien or judgment against Richard or Sharon James, individually or jointly.
On February 2, 2014, Respondents filed a motion for summary judgment in the instant case and Appellant filed a response. On April 22, 2014, the circuit court entered summary judgment in favor of Respondents finding Appellant was not a creditor with a fraudulent transfer claim under the Act because he had not reduced his personal injury claim to a judgment or lien against Richard James in the Camden County action and could not obtain a judgment against Sharon James, who was no longer a party to the Camden County action. The circuit court also found Respondents' jointly owned real property which was conveyed to the Trust was held as tenants by the entirety and, thus, was not an “asset” under the Act that could be subjected to Appellant's claim against only one joint owner. This appeal follows.
Point on Appeal
On appeal, Appellant argues the circuit court erred in granting summary judgment in favor of Respondents on his claim under the Act, in that the court erred in (1) not dismissing Respondents' motion for failing to comply with Rule 74.042 ; (2) interpreting the facts and applying the law because the court required Appellant to obtain a judgment before allowing him to proceed under the Act; and (3) finding that the property conveyed to the Trust was held as tenants by the entirety because such finding was not supported by the record.3
Standard of Review
We review the circuit court's grant of summary judgment de novo . ITT Comm. Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Whether to grant summary judgment is purely an issue of law. Ashford Condo., Inc. v. Horner & Shifrin, Inc., 328 S.W.3d 714, 717 (Mo.App.E.D.2010). We will uphold summary judgment on appeal only where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. ITT Comm. Fin. Corp., 854 S.W.2d at 376 ; Rule 74.04(c). The record is viewed in the light most favorable to the party against whom judgment was entered. Citibrook II, L.L.C. v. Morgan's Foods of Missouri, Inc., 239 S.W.3d 631, 634 (Mo.App.E.D.2007). “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.” Premier Golf Missouri, LLC v. Staley Land Co., LLC, 282 S.W.3d 866, 871 (Mo.App.W.D.2009).
Discussion
A defendant, as the movant, can establish a prima facie case for summary judgment by showing any of the following: (1) facts that negate any one of the elements of a claimant's cause of action; (2) the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find
the existence of any one of the claimant's elements; or (3) there is no genuine dispute as to the existence of each of the facts necessary to support movant's properly pleaded affirmative defense. Sloss v. Gerstner, 98 S.W.3d 893, 896 (Mo.App.W.D.2003). We will affirm the trial court's judgment if it is sustainable on any theory. Citibrook, 239 S.W.3d at 634.
Section 428.024 of the Act, titled “Transfers fraudulent as to present and future creditors,” provides in relevant part:
1. A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
(1) With actual intent to hinder, delay, or defraud any creditor of the debtor;
...
2. In determining actual intent under subdivision (1) of subsection 1 of this section, consideration may be given, among other factors, to whether:
(1) The transfer or obligation was to an insider;
(2) The debtor retained...
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