Lauber-Clayton, LLC v. Novus Props. Co.
| Decision Date | 01 October 2013 |
| Docket Number | No. ED 98302.,ED 98302. |
| Citation | 407 S.W.3d 612 |
| Parties | LAUBER–CLAYTON, LLC, Appellant, v. NOVUS PROPERTIES COMPANY, Respondent. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Thomas G. Berndsen, St. Louis, MO, for appellant.
J. Vincent Keady, Jr., St. Louis, MO, for respondent.
In this action for damages and attorneys' fees, stemming from a real-estate transaction, Lauber–Clayton, LLC, appeals the trial court's entry of summary judgment in favor of defendant Novus Properties Company on res judicata grounds. Comparing the present litigation to the prior litigation, we find no identity of parties because the parties in the present litigation did not adjudicate anything between themselves in the prior litigation. Therefore, we hold that res judicata does not preclude Lauber–Clayton from bringing the present suit. Thus, we reverse the grant of summary judgment and remand the cause to the trial court.
At the outset, we alert the reader that the present and prior litigation involve numerous corporate entities, many with names bearing a common root-word. The litigation involves three “Lauber” entities:
(1) Lauber–Clayton;
(2) Lauber–Crestwood, LLC; and
(3) Lauber–Crestwood Sam's, LLC.
The litigation also involves five “Novus” entities:
(1) Novus Properties;
(2) Novus Holdings, LLC;
(3) Novus–Crestwood, LLC;
(4) Novus–Crestwood Sam's, LLC; and
(5) Novus Management Company.
Although we mention all the entities by name, we conclude that only Lauber–Clayton and Novus Properties are pertinent to the final disposition of this case.1
The present and prior litigation began with a commercial real-estate transaction. Our current plaintiff and appellant, Lauber–Clayton, and Novus Holdings owned, as tenants-in-common, a building located on Clayton Road in St. Louis County. According to Lauber–Clayton, it hired Novus Properties in October of 2005 to serve as the listing real estate broker for the marketing and sale of the property. In May of 2006, while the property was still on the market, Lauber–Clayton sold its 26.2% interest in the property to Sebelski Holdings, LLC, for $160,000. Sebelski Holdings and Novus Holdings sold the property less than three months later, for the full asking price of $1,500,000.
Lauber–Clayton believes it was “duped” into selling its interest in the building. It contends Novus Properties and Mr. Browne received the $1,500,000 written purchase offer for the property in April 2006, and then intentionally concealed the offer from Lauber–Clayton, induced Lauber–Clayton to sell its interest in the propertyat a significantly reduced price, and then once Lauber–Clayton relinquished its ownership interest, sold the property, cheating Lauber–Clayton out of its share of the ultimate purchase price of $1,500,000. Lauber–Clayton sued Novus Holdings, Mr. Browne, and Sebelski Holdings. (“Building case”). It sued Novus Holdings and Mr. Browne for fraudulent misrepresentation and breach of fiduciary duty, based on the parties' relationship as tenants-in-common and business partners. (Counts I and II). It sued Sebelski Holdings for fraudulent misrepresentation, for its concealment of the purchase offer. (Count III). It sued Novus Holdings, Mr. Browne, and Sebelski Holdings for civil conspiracy, for scheming to conceal the purchase offer and divest Lauber–Clayton of its interest in the property and its share of the sale price. (Count IV). And finally, Lauber–Clayton sued Novus Holdings and Sebelski Holdings for unjust enrichment and imposition of a constructive trust. (Counts V and VI). Lauber–Clayton sought to recover its share of the $1,500,000 purchase price, as well as punitive damages and attorneys' fees. Importantly, Lauber–Clayton advanced no claims against Novus Properties, our current defendant.
In addition to the six counts and claims related to the building property, the prior litigation also included five counts related to a shopping center located at the intersection of U.S. Interstate Highway 44 and Big Bend Boulevard in St. Louis County. (“Shopping-center case”). Reportedly, in addition to their dealings involving the building property, Mr. Lauber and Mr. Browne also developed and owned this shopping center. In the five counts of the shopping-center case, two Lauber entities, Lauber–Crestwood and Lauber–Crestwood Sam's, sued four Novus entities: Novus–Crestwood, Novus–Crestwood Sam's, Novus Management Company, and Novus Properties—our current defendant. The two plaintiffs sought to invalidate a tenant-in-common agreement and a management agreement relating to the ownership structure and management of the property. They also sought to recover certain management fees and real-estate sales commissions that plaintiffs alleged defendants had improperly received. 2 Importantly, Lauber–Clayton advanced no claims related to the shopping center.
For ease of understanding, we list the parties to the prior litigation, which consisted of both the building case and the shopping-center case. We have underlined the names of the parties to our present litigation.
+----------------------------------------------------------------------------+
¦“Building Case” ¦Lauber–Clayton ¦vs.¦Jonathan P. Browne ¦
+-------------------+--------------------------+---+-------------------------¦
¦Counts I–VI ¦ ¦ ¦Novus Holdings, LLC ¦
+-------------------+--------------------------+---+-------------------------¦
¦ ¦ ¦ ¦Sebelski Holdings, LLC ¦
+-------------------+--------------------------+---+-------------------------¦
¦“Shopping–Center ¦Lauber–Crestwood, LLC ¦vs.¦Novus–Crestwood, LLC ¦
¦Case” ¦ ¦ ¦ ¦
+-------------------+--------------------------+---+-------------------------¦
¦Counts VII–XI ¦Lauber–Crestwood Sam's, ¦ ¦Novus–Crestwood, Sam's ¦
¦ ¦LLC ¦ ¦LLC ¦
+-------------------+--------------------------+---+-------------------------¦
¦ ¦ ¦ ¦Novus Management Company ¦
+-------------------+--------------------------+---+-------------------------¦
¦ ¦ ¦ ¦Novus Properties ¦
+----------------------------------------------------------------------------+
This prior global litigation of both the building case and the shopping-center case proceeded intact for over two years. During that time, the defendants moved to strike the plaintiffs' request for attorneys' fees contained in each and every count of the petition. The trial court sustained defendants' motion.3
In November of 2010, all defendants except Novus Properties moved to sever plaintiffs' claims, contending the two sets of claims—those relating to the building and those relating to the shopping center—were completely unrelated. The trial court granted defendants' motion, severing the building-case counts (Counts I–VI) from the shopping-center counts (Counts VII–XI), and assigning the shopping-center counts a new case number. As a result, all claims against Novus Properties were severed into the new case. Our current parties, Lauber–Clayton and Novus Properties, were then no longer named parties in the same case, at least as determined by case number.
Two months later, in January of 2011, the parties in the building case settled during trial. These parties executed a consent judgment in favor of Lauber–Clayton and against the building-case defendants Browne and Novus Holdings, on Counts I and II, the fraudulent-misrepresentation and breach-of-fiduciary-duty counts, in a specified amount of monetary damages, but less than Lauber–Clayton's claimed actual damages.4 Lauber–Clayton's attorney held this consent judgment and did not file it with the court, to allow the defendants an opportunity to pay the settlement. The building-case parties understood that if the building-case defendants failed to pay by the agreed-upon, designated date, Lauber–Clayton would file the judgment without further notice. On the other hand, if the building-case defendants paid in a timely manner, Lauber–Clayton agreed to dismiss the two counts with prejudice. The building-case parties also agreed that there would be a mutual release of all claims relating to the building property. The parties to this appeal have not favored this Court with a copy of that release. The building-case parties also agreed that each party would pay its own costs and attorneys' fees. The building-case defendants timely paid Lauber–Clayton, and Lauber–Clayton in turn dismissed Counts I and II with prejudice.
Several months later, the plaintiffs in the severed shopping-center case voluntarily dismissed without prejudice all remaining claims against the defendants in that case, including all claims against Novus Properties.
This brings us to our current suit. Once the dust from this prior litigation settled, Lauber–Clayton sued Novus Properties to collect attorneys' fees it incurred in the building suit, and to recover the small remaining balance of actual damages it did not recover in the settlement. Lauber–Clayton set forth causes of action for negligence, negligence per se, breach of contract, fraudulent misrepresentation, and breach of fiduciary duty, all based on Novus Properties' alleged breach of its statutoryand common-law fiduciary duties as Lauber–Clayton's real estate listing broker in failing to disclose receipt of the $1,500,000 purchase offer for the building property.
Novus Properties moved to dismiss the case on res judicata grounds. In so moving, Novus Properties argued it was a defendant in prior litigation filed by Lauber–Clayton, and that the current suit and the...
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