Johnson v. Usera

• Docket Number: WD 86006,WD 86058
• Decision Date: 23 July 2024
• Citation: 695 S.W.3d 272
• Parties: David L. JOHNSON, Appellant-Respondent, v. Mario USERA, Respondent-Appellant.
• Court: Missouri Court of Appeals

695 S.W.3d 272

David L. JOHNSON, Appellant-Respondent,

v.Mario USERA, Respondent-Appellant.

WD 86006 (Consolidated with WD 86058)

Missouri Court of Appeals, Western District.

OPINION FILED: June 25, 2024

Motion for Rehearing and/or Transfer to Supreme Court Denied July 23, 2024

Appeal from the Circuit Court of Clay County, Missouri, The Honorable David P. Chamberlain, Judge

John L. Mullen and Keaton G. Knott, Kansas City, MO, Attorneys for Appellant-Respondent.

Brian G. Boos and Cameron S. Bernard, Overland Park, KS, Attorneys for Respondent-Appellant.

Before Division Two: Thomas N. Chapman, Presiding Judge, Karen King Mitchell and W. Douglas Thomson, Judges

Karen King Mitchell, Judge

This appeal arises out of a lawsuit initiated by David Johnson against Mario Usera, alleging breach of contract, defamation, false light invasion of privacy, and interference with a business expectancy (the current lawsuit).In that lawsuit, Usera filed two counterclaims against Johnson for breach of contract.Both Johnson’s and Usera’s claims arise from alleged breaches of a settlement agreement between Johnson and Usera (in his individual capacity), entered into in 2014(the 2014 settlement agreement).In their capacity as defendants in the current lawsuit, both Johnson and Usera moved for summary judgment, and those motions were granted.Johnson now appeals from the grant of summary judgment in favor of Usera on all four of Johnson’s claims.Usera filed a separate appeal from the entry of summary judgment in favor of Johnson on Usera’s counterclaims; we consolidated the appeals.

Johnson raises two points on appeal.First, Johnson asserts the motion court erred in granting summary judgment in favor of Usera because Usera failed to properly controvert Johnson’s additional statement of material facts (filed in support of Johnson’s response to Usera’s summary judgment motion), and those additional facts establish "elements of Johnson’s prima facie claims."Second, Johnson argues the motion court erred in denying his motion to compel Usera to provide discovery responses based on information Usera obtained in his corporate capacity.Usera raises one point on appeal.He claims the motion court erred in granting summary judgment for Johnson on Usera’s counterclaims because Johnson was not entitled to judgment as a matter of law in that Johnson’s actions materially breached the 2014 settlement agreement.Finding no error, we affirm.

Background¹

Johnson is the managing member of Jefferson Acquisition, LLC(Jefferson), and a stockholder of CCSB Financial Corporation(CCSB), the parent company of Clay County Savings Bank.Usera is the President and Chief Executive Officer (CEO) of CCSB.The current lawsuit between Johnson and Usera stems from Johnson’s attempt to have his business associates elected to CCSB’s Board of Directors.

On August 23, 2012, Johnson filed a lawsuit captioned Johnson v. Davis, et al., CaseNo. 1216-CV22079, in the Circuit Court of Jackson County, Missouri(the previous lawsuit), against John Davis(now deceased) and Usera, alleging libel, defamation, false light invasion of privacy, tortious interference with business expectancy, and civil conspiracy in connection with statements Davis and Usera made in a July 2, 2012 stockholder letter criticizing Jefferson and Johnson.Davis and Usera answered, denied the allegations, and eventually moved for summary judgment.The court granted summary judgment in favor of Davis and Usera, and Johnson appealed.While Johnson’s appeal was pending, the parties entered into the 2014 settlement agreement, and Johnson dismissed his appeal.The 2014 settlement agreement contains the following mutual non-disparagement clause:

The parties to this Release and Settlement Agreement also agree not to public[ly] or privately disparage one another in regards [to] the Claims, the Lawsuit, and/or the Claims as they related to the Lawsuit.

(the non-disparagement clause).The 2014 settlement agreement defined "Lawsuit" as the lawsuit captioned Johnson v. Davis, et al., case number 1216-CV22079 (the 2012 lawsuit), and "Claims" as "certain claims" Johnson asserted "against Davis/Usera arising out of [the]July 2, 2012 correspondence from CCSB … to its stockholders."

On July 29, 2020, Johnson commenced the current lawsuit by filing in Clay County a petition against Usera, in his individual capacity, alleging breach of contract (the non-disparagement clause), defamation, false light invasion of privacy, and interference with business expectancy, all of which arise from a supplemental proxy letter dated January 6, 2020, from CCSB to its stockholders (the proxy letter) and an attached report from CCSB’s Nominating Committee(the Nominating Committee report).²The proxy letter and Nominating Committee report pertained to the election of members of CCSB’s Board of Directors in January 2020; the Nominating Committee report was critical of two Board nominees associated with and supported by Johnson.The proxy letter was on CCSB letterhead and was signed by the then Board of Directors of CCSB, including Usera who signed as "President and CEO."Usera was not a member of the Nominating Committee.

The following statements in the Nominating Committee report form the basis for the claims in the current lawsuit:

Mr. Johnson serves as a [CCSB] Board member, and.. owns approximately 23% of the common stock of another banking institution, First Missouri Bank, which has an office in Kearney, Missouri, and directly competes with [CCSB’s] subsidiary bank.

..

In 2011, [the Vice President of the Jefferson Group, a Johnson-affiliated company] obtained [CCSB’s] Non-Objecting Beneficial Owner (NOBO) information directly through Broadridge Financial Solutions, Inc.[Broadridge].Broadridge.. had advised in a letter that [the Vice President] was provided with this list because [the Vice President] indicated on the form that [the Vice President] represented CCSB ….

…

[CCSB’s]Nominating Committee believes that the dissident group³ has engaged in practices that have attempted to take advantage of stockholders as evidenced by a lawsuit filed by one shareholder.In 2017, a default judgment was entered against Mr. Johnson and an entity controlled by Mr. Johnson, Bond Purchase, LLC, that ruled that Mr. Johnson and Bond Purchase, LLC had acted in concert to wrongfully obtain shares of CCSB.. by forcing an unauthorized foreclosure sale of the common stock of CCSB..

…

The nominees and their affiliated entities have taken actions that have had an adverse financial impact on [CCSB], including past lawsuits against [CCSB] and individually against former Chairman and C[EO]John David and current President and C[EO]Mario Usera.Their lawsuits were dismissed by the courts without merit.

…

The Nominating Committee has ample reasons to believe that the dissident group has personal interests which conflict with the best interests of [CCSB] and its other shareholders.The group’s inability to set its personal interests aside are evidenced by its past interfer-ence with [CCSB]’s attempt to market itself for sale following the economic downturn early in the decade.At that time, Mr. Johnson demanded that he be able to make an offer independent of a potential offer from First Missouri Bank, at which he was a director and a significant shareholder.

Usera filed an answer and asserted two counterclaims—both alleging breach of the non-disparagement clause.The first breach alleged by Usera occurred at a CCSB stockholder meeting on January 23, 2020.At that meeting, Johnson reportedly announced that, by signing the proxy letter, Usera had "violated the terms of the [2014] settlement agreement."Johnson also "wagged his finger" at Usera, demanding that he"admit the statements [in the proxy letter and Nominating Committee report] were not true, do the right thing, and publicly apologize to [the Vice President]."The second alleged breach occurred at a January 28, 2021, stockholder meeting, where Johnson stated, "this Board is spending hundreds of thousands of dollars to defend [Usera]. who violated a contract he and I have and I have sued him personally in Clay County. violated the contract and defamed [the Vice President][he] owes her an apology."

Both parties moved for summary judgment (as defendants) on the other parties’ claims.In his summary judgment motion, Usera argued that Johnson’s breach-of-contract claim failed because the proxy letter and Nominating Committee report did not "disparage" Johnson as that term is commonly defined and the statements at issue were corporate statements for which Usera bore no personal liability.As to Johnson’s defamation claim, Usera asserted that the allegedly defamatory statements are true, absolutely privileged, qualifiedly privileged, incapable of defamatory meaning, not published to a third party, or relate to a limited purpose public figure who has not made the requisite showing of legal malice.Usera further argued that (1) Johnson’s claim of false light invasion of privacy failed because Johnson asserted the statements at issue are untrue and (2) there is no evidence Usera induced or caused a breach of Johnson’s business expectancy.Johnson filed a response in which he admitted or denied each of Usera’s facts and included additional facts.Usera did not file a timely reply to Johnson’s additional facts.

Johnson then moved for summary judgment on Usera’s breach-of-contract counterclaims, arguing that Johnson’s statements and actions at the shareholder meetings in 2020 and 2021 were not encompassed by the 2014 settlement agreement and, thus, did not violate the non-disparagement clause.Usera filed a response in which he admitted all but one of Johnson’s facts.

On October 20, 2022, the motion court held a hearing on the parties’ competing motions for summary judgment.Following argument, the court took the motions under advisement.On October 28, 2022, Usera filed an amended motion for leave to file out-of-time...