Howard v. Fid. Nat'l Title Ins. Co.

• Decision Date: 24 August 2015
• Docket Number: No. 4:10CV2368 HEA,4:10CV2368 HEA
• Citation: Howard v. Fid. Nat'l Title Ins. Co., No. 4:10CV2368 HEA (E.D. Mo. Aug 24, 2015)
• Court: U.S. District Court — Eastern District of Missouri
• Parties: DERRICK HOWARD, Plaintiff, v. FIDELITY NATIONAL TITLE INSURANCE COMPANY, Defendant

DERRICK HOWARD, Plaintiff, v. FIDELITY NATIONAL TITLE INSURANCE COMPANY, Defendant

No. 4:10CV2368 HEA

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

August 24, 2015

OPINION, MEMORANDUM AND ORDER

This matter is before the Court on Plaintiff's Motion for Reconsideration [Doc. No. 158], and Defendant's Response thereto [Doc. No. 165]. For the reasons that follow, the Court will deny Plaintiff's Motion for Reconsideration, and vacate the Court's March 17, 2015 Opinion, Memorandum and Order supporting judgment in favor of Defendant. This Opinion, Memorandum and Order will supersede the March 17, 2015 Opinion, and will stand in support of the March 17, 2015 Judgment entered in favor of Defendant against Plaintiff.

Introduction

Plaintiff, who is proceeding pro se and is currently incarcerated, brought this action seeking damages from Defendant for alleged insurance contract breaches relative to certain pieces of real estate located at 4433 Kossuth, St. Louis, Missouri 63115 and 19015 Old Jamestown Road, Florissant, Missouri, 63034. Plaintiff also sought a Declaratory Judgment from this Court that he was an insured party. Defendant sought summary judgment based on its arguments that Plaintiff has engaged in inequitable conduct; that he never paid for and was not covered under any insurance contract; and that, even if he had paid for and received an insurance policy from Defendant, his claims would not be covered.

Procedural Background

Plaintiff initiated this action in the District of West Virginia on December 8, 2010. It was transferred to this District on December 20, 2010. Plaintiff filed an Amended Complaint on July 5, 2011, and the Court set a discovery deadline of April 23, 2012. By Order entered on May 8, 2012, the Court continued the discovery deadline to July 27, 2012. Plaintiff claimed throughout these proceedings that, during his incarceration, he mailed documents and other evidence central to his case to non-party Carolyn Jackson ("Jackson") for "safe keeping." Upon Plaintiff's request, the Court issued a subpoena to Jackson for this evidence, which was returned executed on June 21, 2012.¹

Defendant filed its Motion for Summary Judgment on October 11, 2012, nearly two years after Plaintiff filed his initial Complaint. [Doc. No. 80]. Over the course of the next nine months, the Court granted multiple extensions for Plaintiff to respond to Defendant's Motion for Summary Judgment. The extensions were all requested, at least in part, to afford Plaintiff additional time to secure the aforementioned evidence from Jackson. The Court finally granted Defendant's Motion for Summary Judgment on July 22, 2013, finding that Defendant was entitled to judgment as a matter of law because Plaintiff had failed to present any evidence to establish that Plaintiff and Defendant were parties to any insurance contracts on which Plaintiff could base his claims. [Doc. No. 106].² To the contrary, evidence before the Court—namely, the settlement statements prepared in conjunction with the closings on both properties—appeared to confirm that no owner's title insurance was set or collected.

Thereafter, Plaintiff requested that the Court vacate its entry of Summary Judgment on the grounds that Plaintiff had requested from the Court, but had not received, a new copy of Defendant's Motion for Summary Judgment. Plaintiff further advised the Court that he filed aresponse to Defendant's Motion for Summary Judgment with the correctional counselor of his prison prior to the date on which the Court granted Defendant's Motion for Summary Judgment, but that the response was never mailed to the Court.³ Plaintiff therefore requested "an order granting Plaintiff leave to refile his timely and previously filed response to [Defendant's] Motion for Summary Judgment." [Doc. No. 109 at 2]. On April 14, 2014, the Court vacated Judgment and ordered Plaintiff to file his response within thirty days.

After granting Plaintiff's request for an additional sixty days to file a response, Plaintiff filed his Response on June 9, 2014. [Doc. No. 121]. The only evidentiary support Plaintiff included for his claim that he had paid insurance premiums was his affidavit, in which he asserted his belief that Jackson would testify under oath that she and Sharon Money personally paid the premiums for owner's insurance in cash and received a hand-written receipt. Thereafter, Defendant filed its Reply. [Doc. No. 127].

On March 17, 2015, the Court again granted Defendant's Motion for Summary Judgment and entered judgment in Defendant's favor. [Doc. Nos. 145, 146]. The Court noted that, over four years after Plaintiff initiated this action, and despite ample opportunity, Plaintiff had failed to produce any evidence controverting the fact that the settlement statements prepared in conjunction with the closings on both properties confirmed that no owner's title insurance coverage was set or collected. Thus, the facts before the Court at that time established that Plaintiff did not purchase title insurance from Defendant, and therefore was not entitled to receive owner's title insurance coverage in conjunction with either of the subject properties.

Plaintiff filed a Notice of Appeal on April 13, 2015. [Doc. No. 149]. On May 1, 2015, Plaintiff filed the instant Motion for Reconsideration, providing—for the first time—what hepurports to be the above referenced hand-written receipts for his purchase of insurance from Defendant's agent for the property in question.

The Court initially addressed Plaintiff's Motion for Reconsideration in an Opinion, Memorandum and Order entered on May 6, 2015. [Doc. No. 159]. Therein, the Court noted that the sole ground upon which the Court relied in granting summary judgment in Defendant's favor was Plaintiff's failure to create a genuine issue of fact regarding his alleged purchase of title insurance, and that the exhibits to Plaintiff's Motion for Reconsideration appear to create such an issue. The Court therefore found that, at the very least, Plaintiff's Motion for Reconsideration raised a substantial issue to the very ground upon which the Court based its decision to grant summary judgment. [Id.] [citing Fed. R. Civ. P. 62.1].⁴ Accordingly, the Court entered an Order stating that Plaintiff's Motion raises a substantial issue. Based on this Court's Order, the Eighth Circuit remanded to for further proceedings.

Factual Background

Plaintiff owns or owned BIS Investments, L.L.C. ("BIS Investments"). One of BIS Investments' organizers is Kimberly Haskins, who stated in paperwork filed with the Missouri Secretary of State's office that her address was 2555 Stirrup Lane, Florissant, Missouri, 63033 as of 2002.

A. 4433 Kossuth

On January 22, 2004, BIS Investments recorded a deed of trust against the real estate commonly known as 4433 Kossuth Avenue in St. Louis, Missouri. ("The 1/22/04 BIS Deed of Trust"). The 1/22/04 BIS Deed of Trust states that it secures repayment of $60,000.00 by Clara Jones, and that it was executed by Claudia Dorsey on behalf of Clara Jones. By no later thanMarch 24, 2004, Plaintiff knew that the following deed of trust had been recorded against 4433 Kossuth prior to the recordation of the 1/22/04 BIS Deed of Trust: deed of trust dated December 29, 1999 and recorded on January 14, 2000 in Book M1601, Page 1909 of the St. Louis City, Missouri recorder's office. ("The 12/29/99 Deed of Trust"). The 12/29/99 Jones Deed of Trust states that it secures repayment of $13,000.00 by Clara Jones, and names Tandy L. Hairston as the trustee for the beneficiary.

Plaintiff entered into a contract to purchase 4433 Kossuth for $60,000.00 on October 27, 2004. At the time he contracted to purchase 4433 Kossuth for $60,000.00, Plaintiff had actual knowledge that the 12/29/99 Jones Deed of Trust had been recorded. On October 27, 2004, the same day as plaintiff contracted to purchase 4433 Kossuth for an amount of money equal to the 1/22/04 BIS Deed of Trust, a document purporting to release the 12/29/99 Jones Deed of Trust was executed. ("The 10/27/04 Release"). The signature on the 10/27/04 Release reads "Tandy L. Harrison" while the notary block states that it was signed by "Tandy L. Hairston" on behalf of M L & Foreclosure Services, Inc. ("M L & L Foreclosure"). Plaintiff knew Hairston prior to October 27, 2004, as evidenced by Plaintiff having witnessed Hairston's sworn statement in an affidavit in a related case in March of 2004. [Case No. 4:10CV2367 CDP, Doc. No. 2-1 at 49-50].

M L & L Foreclosure was formed for the purpose of fulfilling trustee functions in conjunction with real estate foreclosures. Hairston was never employed by, associated with, or affiliated with M L & L Foreclosure in any way. Hairston did not have authority to execute the 10/27/04 Release on behalf of M L & L Foreclosure. As of October 27, 2004, M L & L did not have authority to release the 12/29/99 Jones Deed of Trust on behalf of its owner and holder.

The 10/27/04 Release was notarized by Barbara Jones. As of October 27, 2004, Barbara Jones was the office manager of BIS Investments, and owned the real estate commonly known as2555 Stirrup Lane, Florissant, Missouri, 63033, which is the same address that Kimberly Haskins listed as her own in BIS Investments' Articles of Organization.

Plaintiff closed his acquisition of 4433 Kossuth on December 9, 2004. Plaintiff acquired title to 4433 Kossuth on December 9, 2004. ("The 12/9/04 Jones-Howard Deed"). The 12/9/04 Jones-Howard Deed states that it was executed by John Jones on behalf of Clara Jones. John Jones had previously been granted power of attorney for Clara Jones. ("The John Jones-Clara Jones Power of Attorney"). The John Jones-Clara Jones Power of Attorney was notarized by Barbara A. Jones, the same person who executed the 10/27/04 Release and who then owned the real estate which one of BIS Investments' organizers listed as her address in its Articles of Organization.

In conjunction with his...