Hammack v. Coffelt Land Title, Inc.

• Decision Date: 17 March 2009
• Docket Number: No. WD 69134.,No. WD 69133.,WD 69133.,WD 69134.
• Citation: 284 S.W.3d 175
• Parties: Thomas R. HAMMACK, as an Individual and as Cotrustee, by and on Behalf of the Beneficiaries of the Hammack Family Farm Trust, Appellant-Respondent, v. COFFELT LAND TITLE, INC., Respondent-Appellant.
• Court: Missouri Court of Appeals

284 S.W.3d 175

Thomas R. HAMMACK, as an Individual and as Cotrustee, by and on Behalf of the Beneficiaries of the Hammack Family Farm Trust, Appellant-Respondent, v. COFFELT LAND TITLE, INC., Respondent-Appellant.

No. WD 69133.

No. WD 69134.

Missouri Court of Appeals, Western District.

March 17, 2009.

Elvin S. Douglas, Harrisonville, MO, for Appellant-Respondent.

Wendell E. Koerner, Jr., Kansas City, MO, for Respondent-Appellant.

Before: VICTOR C. HOWARD, Presiding Judge, JOSEPH M. ELLIS, Judge and ALOK AHUJA, Judge.

JOSEPH M. ELLIS, Judge.

On February 7, 1997, H. Stanley Hammack and his wife, Jeannette Hammack, ("Grantors") executed a revocable, inter vivos trust denominated the "Stan Hammack Family Revocable Trust Dated 02/07/97" and placed almost all of their assets therein. One of the assets left outside the trust was the undivided one-half interest Stanley held in a 1,040 acre farm that used to be owned by his parents. The other undivided one-half interest in the farm was held by Stanley's brother, Thomas R. Hammack. The trust executed by Grantors stated that Stanley's one-half interest in the farm would be conveyed to the trust by beneficiary deed upon his death. Also on February 7, 1997, the Grantors executed a beneficiary deed conveying title in the half-interest in the farm to the Stan Hammack Family Revocable Trust upon Stanley's death.

The Hammack Family Revocable Trust provided that, in the event Stanley predeceased Jeannette, the trust estate would be divided into two parts. The half interest in the farm was to be placed by the trustee in a trust to be known as the "Hammack Family Farm Trust." The remaining assets in the trust were to be placed in a trust called the "Jeannette M. Hammack Trust." Any income earned by the Family Farm Trust was to be paid to Jeannette for life. After her death, income from the Farm Trust was to go to Thomas Hammack for life, and, upon his death, the property would be divided per stirpes among Thomas's children. The Hammack Family Revocable Trust also dictated that "the Hammack Family Farm Trust may not be amended or revoked, nor may any of the assets be withdrawn therefrom, after the death or incapacity of Grantor H. Stanley Hammack."

On December 3, 1998, Stanley, Jeannette, Thomas, and Thomas's wife, Janet, executed a contract to sell the 1,040 acre farm to P. David Perkins and David D. Davenport. That same day, Stanley, Jeannette, Thomas, and Janet executed, in their individual capacities, a General Warranty Deed transferring title to Perkins and Davenport, and they placed that title in escrow with Coffelt Land Title, Inc., pending payment.

On December 6, 1998, Stanley died.

On February 1, 1999, Jeannette executed a Trustee's deed conveying an undivided one-half interest in the 1,040 acre farm to Perkins and Davenport. Thomas and Janet also executed a general warranty deed conveying a one-half interest in the farm to Perkins and Davenport. Perkins and Davenport tendered payment, and the sale of the farm was closed. Coffelt Land Title issued a check from the proceeds of the sale to Jeannette for $176,725.69 and a check to Thomas and Janet in that same amount.

On January 12, 2004, Thomas, individually and on behalf of himself and the other beneficiaries of the Hammack Family Farm Trust ("Plaintiff"), filed a two count Petition for Damages in the Circuit Court of Cass County against Coffelt Land Title. In both counts, the petition averred that Coffelt Land Title entered into an escrow agreement with Stanley, Jeannette, Thomas, and Janet. In Count I, Plaintiff asserted a claim based on negligence, alleging that Coffelt Land Title had breached a duty of care owed as a result of the escrow relationship. In Count II, Plaintiff alleged that Coffelt Land Title breached the terms of the escrow agreement. Both counts were premised on the assertion that Coffelt Land Title issued a check to Jeannette in her personal capacity instead of as Trustee for the Hammack Family Trust when the real estate transaction closed. On June 29, 2006, Plaintiff filed a motion for summary judgment, which was subsequently granted by the trial court. After a hearing on damages, the trial court entered judgment against Coffelt Land Title for $176,726.50. The court denied Plaintiff's request for pre-judgment interest.

Both parties appeal from the trial court's judgment. Coffelt Land Title challenges the entry of summary judgment, and Plaintiff challenges the denial of an award of interest. We first examine Coffelt Land Title's claims of error.

"The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially." Allen v. Midwest Inst. of Body Work & Somatic Therapy, L.L.C., 197 S.W.3d 615, 619 (Mo.App. W.D.2006) (internal quotation omitted). "Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law." Id. "The movant bears the burden of establishing both a legal right to judgment and the absence of any genuine issue of material fact required to support the claimed right to judgment." Lewis v. Biegel, 204 S.W.3d 354, 356 (Mo.App. W.D. 2006) (internal quotation omitted).

"Appellate review of the grant of summary judgment is de novo." Midwestern Health Mgmt., Inc. v. Walker, 208 S.W.3d 295, 297 (Mo.App. W.D.2006). "The record below is reviewed in the light most favorable to the party against whom summary judgment was entered, and that party is entitled to the benefit of all reasonable inferences from the record." Lewis, 204 S.W.3d at 356. (internal quotation omitted). However, "[f]acts 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." Walker, 208 S.W.3d at 297. "Summary judgment is appropriate only when the record demonstrates that there are no genuine disputes regarding material facts and that the moving party is entitled to judgment as a matter of law." Lewis, 204 S.W.3d at 356 (internal quotation omitted).

On appeal, Coffelt Land Title claims that the trial court erred in entering summary judgment on behalf of Plaintiff because genuine issues of material fact remained in the case and because Plaintiff failed to establish that he was entitled to judgment as a matter of law. Coffelt Land Title asserts that genuine issues remain regarding what duties it owed to Plaintiff and whether those duties were breached. Coffelt Land Title further argues that it was disputed whether Coffelt Land Title knew or should have known of the specific provisions of the Hammack Family Trust.

"When a transaction is closed through an escrow agent the agent is charged with the performance of an express trust governed by the escrow agreement with duties to perform for each of the parties which duties neither can forbid without the consent of the other." Boatmen's Nat'l Bank of St. Louis v. Dandy, 804 S.W.2d 783, 785-86 (Mo.App. E.D. 1990). The escrow agent "is absolutely bound by the terms and conditions of the deposit and charged with a strict execution of the duties voluntarily assumed." Southern Cross Lumber & Millwork Co. v. Becker, 761 S.W.2d 269, 272 (Mo.App. E.D. 1988). "An escrow agreement creates a fiduciary relationship, and breach of the fiduciary duty constitutes a tort." Dave Kolb Grading, Inc. v. Lieberman Corp., 837 S.W.2d 924, 940 (Mo.App. E.D.1992). However, "[t]he fiduciary relationship of an escrow agent and the other parties to the agreement is much narrower in scope than other fiduciary relationships such as attorney/client." Gilmore v. Chicago Title Ins. Co., 926 S.W.2d 695, 699 (Mo.App. E.D.1996). "An escrow agent is bound by the terms of the escrow agreement and breaches the fiduciary duty only when the agent fails to follow those terms." Id. Thus, in order to establish either breach of contract or negligence on the part of Coffelt Land Title, Plaintiff was required to prove that Coffelt Land Title failed to comply with the terms of the escrow agreement.

Neither Plaintiff's motion for summary judgment nor his statement of uncontroverted facts references the escrow agreement or the terms thereof in any way. Indeed, Plaintiff's petition alleged that "Plaintiff has not seen the contractual terms and obligations of Defendant under the escrow agreement." Moreover, in Coffelt Land Title's response to Plaintiff's motion for summary judgment, Coffelt asserted specifically that "the terms of the escrow" agreement was a disputed fact, to which Plaintiff responded that the terms of the escrow agreement "is not a material fact ... [a]s the transaction which this escrow account would have been based was not handled under those terms." Thus, Plaintiff is saying that we don't know what the terms of the escrow agreement were, but the transaction was not handled in accordance with those unknown terms, and, therefore, those unknown terms are not germane to this case. The fallacy of this proposition is self evident. While Plaintiff's suggestions in support of his motion for summary judgment generally state that Coffelt Land Title, "as escrow agent, breached its contractual and fiduciary duties to Plaintiff, both individually and in his capacity as co-trustee under the Hammack Family Farm Trust," Plaintiff does not identify what provision of the escrow agreement was allegedly breached. Having failed to establish through uncontroverted facts what duties Coffelt Land Title assumed under the escrow agreement, Plaintiff has not established his right to judgment as a matter of law on either his breach of contract or negligence claims.¹

Accordingly, the trial court's entry of summary judgment in favor of Plaintiff is reversed, and the cause is remanded to the trial court for further proceedings.

J. HOWARD concurs in principal opinion.

J. AHUJA...