Moore v. Armed Forces Bank, N.A., WD 80280

CourtCourt of Appeal of Missouri (US)
Writing for the CourtLisa White Hardwick, Judge
Citation534 S.W.3d 323
Docket NumberWD 80280
Decision Date19 September 2017
Parties Lamar MOORE, et al., Appellants, v. ARMED FORCES BANK, N.A., et al., Respondents.

534 S.W.3d 323

Lamar MOORE, et al., Appellants,
v.
ARMED FORCES BANK, N.A., et al., Respondents.

WD 80280

Missouri Court of Appeals, Western District.

Filed: September 19, 2017
Application for Transfer to Supreme Court Denied October 31, 2017.

Application of Transfer Denied December 19, 2017


James D. Lawrence, Timothy J. Davis, Kansas City, for respondents.

Michael P. Healy, Lee's Summit, for appellants.

534 S.W.3d 325

Before Division One: James E. Welsh, Presiding Judge, Lisa White Hardwick and Gary D. Witt, Judges

Lisa White Hardwick, Judge

Lamar Moore and Tony Moore (collectively, "the Moores") appeal from a judgment dismissing their lawsuit against Armed Forces Bank, N.A. The Moores contend the court erred in dismissing Counts II and III of their petition for failure to state a claim upon which relief could be granted.1 They also contend the court abused its discretion in denying their motion to amend their petition. For reasons explained herein, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Over 30 years ago, friends and business partners Lamar Moore ("Lamar") and Gary Dickinson ("Dickinson") had a discussion about a business opportunity. Dickinson informed Lamar that he was planning to purchase Armed Forces Bank, N.A. ("Armed Forces Bank").2 Dickinson and Lamar also discussed the possibility of Lamar's purchasing part of Armed Forces Bank as an investor. They agreed that Lamar would purchase a five percent interest for $180,000. Lamar paid the purchase price to either Dickinson or Armed Forces Bank. As in prior dealings between Lamar and Dickinson, Dickinson handled the paperwork related to the stock purchase.

In 1983, Lamar entered into a separation agreement with his wife, Shirley Moore ("Shirley") as part of their divorce. The agreement provided that Lamar would transfer his stock in Armed Forces Bank to Shirley. Thereafter, apart from informing Dickinson that Shirley was to receive his stock in Armed Forces Bank, Lamar did not take any action to transfer his stock to Shirley. Dickinson passed away in 1997. To Lamar's knowledge, no formal transfer of stock was ever made to Shirley.

In 2009, Shirley died, and her son Tony Moore ("Tony") was appointed as the executor of her estate. As part of his duties as executor, Tony looked for but could not find any Armed Forces Bank stock certificates.3 Lamar was also unsuccessful in his attempt to locate Armed Forces Bank stock certificates.

Lamar and Tony later filed an action against Armed Forces Bank and Dickinson Financial Corporation4 in the circuit court of Jackson County on December 9, 2015. They asserted claims of "Equitable Accounting," "Replacement of Lost Stock Certificates," and a breach of contract claim, which the Moores captioned as "Specific Performance or Alternatively, Damages."

In April 2016, Defendants filed a motion to dismiss the Moores' petition. The motion asserted various grounds for dismissal, including that the petition failed to state a valid claim for relief, that the Moores' claims were barred by the statute of limitations, and that Lamar lacked standing to pursue the claims. The Moores filed a response in opposition to Defendants' motion to dismiss and requested

534 S.W.3d 326

leave to amend their petition in the event that the court found that their breach of contract claim failed to state a claim for relief.

On August 10, 2016, the circuit court entered its judgment granting Defendants' motion and dismissing the Moores' petition with prejudice. Five days later, the Moores filed a motion to amend their petition along with a proposed amended petition. On October 7, 2016, the court entered an order denying the Moores' motion to amend their petition, noting that it had already implicitly denied the Moores' request to amend in its August 10, 2016 judgment and order. The Moores appeal.

STANDARD OF REVIEW

We review the grant of a motion to dismiss de novo and will consider only whether the grounds stated in the motion supported dismissal. Aldridge v. Francis , 503 S.W.3d 314, 316 (Mo. App. 2016). We accept the plaintiffs' allegations in the petition as true and grant the plaintiffs all reasonable inferences therefrom. Campbell v. Cty. Comm'n of Franklin Cty. , 453 S.W.3d 762, 767 (Mo. banc 2015). "The petition is reviewed 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." Keveney v. Mo. Military Acad. , 304 S.W.3d 98, 101 (Mo. banc 2010).

ANALYSIS

In Point I, the Moores contend the circuit court erred in dismissing their Count II claim for "Replacement of Lost Stock Certificates." They argue that the factual allegations in Count II stated a claim under both Section 351.2955 and Section 400-8.405.

The Moores assert that they are entitled to the reissuance of stock certificates representing Lamar's five percent ownership interest in Armed Forces Bank, or alternatively, a stock certificate to the Estate of Shirley Moore for the five percent interest. Section 351.295 provides that "every holder of stock represented by certificates shall be entitled to have a certificate." On appeal, the Moores argue that this statutory provision constitutes an implied private right of action for a shareholder to sue for the replacement of a lost stock certificate. We disagree.

"The creation of a private right of action by implication is not favored, and the trend is away from judicial inferences that a statute's violation is personally actionable." State, Dept. of Soc. Servs., Div. of Med. Servs. v. Brundage , 85 S.W.3d 43, 49 (Mo. App. 2002) (quoting Shqeir v. Equifax , 636 S.W.2d 944, 947 (Mo. banc 1982) ). Moreover, "[w]hen the legislature has established other means of enforcement, we will not recognize a private civil action unless such appears by clear implication to have been the legislative intent." Johnson v. Kraft Gen. Foods, Inc. , 885 S.W.2d 334, 336 (Mo. banc 1994) (citation omitted). As discussed infra , the legislature has provided shareholders a civil remedy to replace lost stock certificates under Section 400.8-405. Thus, in the absence of clear legislative intent, we decline to find that Section 351.295 creates a private right of action.

Section 400.8-405, located in Missouri's version of the Uniform Commercial Code, sets forth a procedure for owners of certificated securities to seek replacement stock certificates.6 "This section enables

534 S.W.3d 327

the owner to obtain a replacement of a lost, destroyed or stolen certificate, provided that reasonable requirements are satisfied and a sufficient indemnity bond supplied. " § 400.8-405, comment 2 (emphasis added). In this case, the Moores did not plead the bond element of...

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1 practice notes
  • Suppes v. Curators of the Univ. of Mo., WD 83509
    • United States
    • Court of Appeal of Missouri (US)
    • November 17, 2020
    ...leave to amend "will not be disturbed absent an obvious and palpable abuse of discretion." Moore v. Armed Forces Bank, N.A. , 534 S.W.3d 323, 328 (Mo. App. W.D. 2017) (internal quotation marks omitted). "Judicial discretion is abused when the court's ruling is clearly against......
1 cases
  • Suppes v. Curators of the Univ. of Mo., WD 83509
    • United States
    • Court of Appeal of Missouri (US)
    • November 17, 2020
    ...leave to amend "will not be disturbed absent an obvious and palpable abuse of discretion." Moore v. Armed Forces Bank, N.A. , 534 S.W.3d 323, 328 (Mo. App. W.D. 2017) (internal quotation marks omitted). "Judicial discretion is abused when the court's ruling is clearly against......

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