Gardner v. Bank of Am., N.A.

• Decision Date: 05 May 2015
• Docket Number: No. ED 101931,ED 101931
• Citation: 466 S.W.3d 642
• Parties: Nancy Gardner, et al., Appellants, v. Bank of America, N.A., et al., Respondents.
• Court: Missouri Court of Appeals

466 S.W.3d 642

Nancy Gardner, et al., Appellants
v.
Bank of America, N.A., et al., Respondents.

No. ED 101931

Missouri Court of Appeals, Eastern District, DIVISION THREE .

FILED: May 5, 2015
Motion for Rehearing and/or Transfer to Supreme Court Denied June 23, 2015
Application for Transfer Denied August 18, 2015

Gregory G. Fenlon, St. Louis Lawyers Group, 231 S. Bemiston, Suite 910, Clayton, Missouri 63105, for Appellant.

Brett B. Caban, Nicholas B. Schopp, Aegis Professional Services—Law Practice Group, 165 N. Meramec, Suite 200, St. Louis, Missouri 63105, for Respondent Doug Stahl Schmidt.

Brian C. Walsh, Rhiana A. Luaders, Bryan Cave LLP, One Metropolitan Square, 211 N. Broadway, Suite 3600, St. Louis, Missouri 63102, for Respondent Bank of America.

Booker T. Shaw, Matthew J. Landwehr, Sara L. Chamberlain, Thompson Coburn LLP, One US Bank Plaza, St. Louis, Missouri 63101, for Respondent U.S. Bank National Association.

Kurt S. Odenwald, Presiding Judge

Introduction

Appellants, a group of homeowners, appeal from the judgment of the trial court dismissing their claims against various mortgage brokers and lenders for declaratory judgment, fraud, conspiracy to defraud, and violations of the Missouri Merchandising Practice Act (“MMPA”). Appellants challenge the dismissal of their claims on the ground that their Second Amended Petition set forth a short and plain statement of the facts showing their entitlement to relief. As to their claims for fraud and conspiracy to defraud, Appellants additionally assert that Respondents waived any objection to the particularity of their pleadings by failing to file a motion for more definite statement. Because of the pleading deficiencies of Appellants' Second Amended Petition and the deficiencies in the briefing on Point Four on appeal, we affirm the trial court's judgment dismissing Appellants' claims.

Factual and Procedural Background

On April 26, 2013, sixteen homeowners (“Appellants”) sued several mortgage brokers and lenders for declaratory judgment, fraud, conspiracy to defraud, and violations of the MMPA.¹ Appellants' Petition

466 S.W.3d 645

generally alleged that defendant Brian Gillick (“Gillick”), an employee of defendant D & D Financial, induced Appellants to refinance their home mortgages with the false promise that refinancing would save Appellants a significant amount of money. The Petition further alleged that Gillick altered various loan closing documents to increase rates and add fees without Appellants' knowledge, and then forged Appellants' signatures on such documents. Finally, the Petition alleged that Gillick conspired with the various defendant lenders to prevent Appellants from learning of the forgeries and thereby prevent Appellants from halting the refinancing transactions.

On May 28, 2013, Appellants filed their First Amended Petition which reasserted the same claims for declaratory judgment, fraud, conspiracy to defraud, and violations of the MMPA. Defendants Bank of America and U.S. Bank each moved to dismiss the First Amended Petition pursuant to Rule 55.27(a)(6) for failure to state a claim upon which relief can be granted. The trial court treated the defendants' motions to dismiss as motions for more a definite statement. The trial court then granted the defendants' motions and granted Appellants leave to amend and replead their claims against Bank of America and U.S. Bank.

Appellants filed a Second Amended Petition on April 17, 2014. The Second Amended Petition set forth the same four claims for declaratory judgment, fraud, conspiracy to defraud, and violations of the MMPA. Bank of America and U.S. Bank each filed a motion to dismiss the Second Amended Petition asserting that Appellants failed to incorporate new factual allegations sufficient to state a claim and that the Second Amended Petition still suffered from multiple pleading deficiencies. Following a hearing on the matter, the trial court granted the motions to dismiss finding that Appellants' Second Amended Petition failed to adequately plead causes of action against Bank of America and U.S. Bank.

On July 8, 2014, Defendant Doug Stahlschmidt (“Stahlschmidt”) filed a motion for judgment on the pleadings, or, in the alternative, a motion to dismiss. The trial court found that the claims against Stahlschmidt were identical to the claims against Bank of America and U.S. Bank that it previously had dismissed for failure to state a claim. Accordingly, the trial court granted Stahlschmidt's motion to dismiss. In the same order, the trial court dismissed all claims against the remaining defendants for lack of service. Appellants now appeal the trial court's judgment dismissing their claims against Bank of America, U.S. Bank, and Stahlschmidt (collectively, “Respondents”).

Points on Appeal

Appellants present four points on appeal. In their first two points, Appellants contend that they sufficiently pleaded their claims in the Second Amended Petition showing their entitlement to declaratory relief and the Respondents' violations of the MMPA. Appellants challenge the trial court's dismissal of these causes of action. Appellants next assert that the trial court erred in dismissing their claims for fraud and conspiracy to commit fraud on the ground that the claims were not pleaded with the requisite particularity under Rule 55.15 because Respondents waived any objection

466 S.W.3d 646

to this pleading requirement when they did not file a motion for more definite statement. Finally, Appellants also challenge the trial court's dismissal of their claims for fraud and conspiracy to commit fraud because the Second Amended Petition set forth sufficient facts to state a claim for these causes of action.

Standard of Review

We review a trial court's grant of a motion to dismiss de novo. Thomas v. A.G. Elec., Inc., 304 S.W.3d 179, 182 (Mo.App.E.D.2009). Because the trial court failed to state a basis for its dismissal of these actions, we presume the dismissal was based on at least one of the grounds stated in the motion to dismiss and will affirm the dismissal if it is supported by any ground. Summer Chase Second Addition Subdivision Homeowners Ass'n v. Ta y lor–Morley, Inc., 146 S.W.3d 411, 415 (Mo.App.E.D.2004). A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. Nazeri v. Mo. Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). Accordingly, we review the petition 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. Id. In so doing, we assume that all of the plaintiff's averments are true, and liberally grant the plaintiff all reasonable inferences. Id .

Discussion

Missouri is a fact pleading state. Jones v. St. Charles County, 181 S.W.3d 197, 202 (Mo.App.E.D.2005). The purpose of fact pleading is to enable a person of common understanding to know what is intended. Whipple v. Allen, 324 S.W.3d 447, 449 (Mo.App.E.D.2010) (internal quotation omitted). As such, a petition must contain a short and plain statement of the facts showing that the pleader is entitled to relief. Rule 55.05. “Although the petition need not plead evidentiary or operative facts showing an entitlement to the relief sought, it must plead ultimate facts demonstrating such an entitlement.” Williams v. Barnes & Noble, Inc., 174 S.W.3d 556, 559–60 (Mo.App.W.D.2005). The petition may not merely assert conclusions, and in determining whether a petition states a cause of action, we are to disregard conclusions not supported by facts. Id. at 560. “Where a petition contains only conclusions and does not contain the ultimate facts or any allegations from which to infer those facts, a motion to dismiss is properly granted.” Westphal v. Lake Lotawana Ass'n. Inc., 95 S.W.3d 144, 152 (Mo.App. W.D.2003) (internal quotation omitted).

I. Appellants do not state a claim for declaratory relief.

Appellants' first point on appeal relates to their claims for declaratory relief against U.S....