Rushing v. Southern Missouri Bank

• Court: Missouri Court of Appeals
• Writing for the Court: CROW; PARRISH, C.J., and SHRUM
• Citation: Rushing v. Southern Missouri Bank, 859 S.W.2d 211 (Mo. App. 1993)
• Decision Date: 10 August 1993
• Docket Number: Nos. 18263,18268,s. 18263
• Parties: Morgan RUSHING, Plaintiff-Appellant, v. SOUTHERN MISSOURI BANK, Defendant-Appellant, and Robert P. Lowery, Personal Representative of the Estate of Herman Lowery, Deceased, Defendant-Respondent.

Page 211

859 S.W.2d 211

Morgan RUSHING, Plaintiff-Appellant, v. SOUTHERN MISSOURI BANK, Defendant-Appellant and Robert P. Lowery, Personal Representative of the Estate of Herman Lowery, Deceased, Defendant-Respondent.

Nos. 18263, 18268.

Missouri Court of Appeals,

Southern District,

Division One.

Aug. 10, 1993.

Thomas W. Millington, Schroff, Glass & Newberry, P.C., Springfield, for plaintiff-appellant Morgan Rushing.

William L. Mauck, David L. Wieland, Yates, Mauck, Bohrer, Elliff, Croessmann and Wieland, P.C., Springfield, for defendant-appellant Southern Missouri Bank.

Thomas W. Cline, Gainesville, for respondent Robert P. Lowery, Personal Representative of Estate of Herman Lowery, Deceased.

CROW, Presiding Judge.

This lawsuit began when the owner of a certificate of deposit sued the depository, alleging it surrendered the funds to an unauthorized person. From that innocuous nascence, the parties steered the case through a procedural labyrinth to a summary judgment disposing of fewer than all issues. The murky path we must negotiate requires an introduction of the three parties filing briefs. They are:

Morgan Rushing ("Plaintiff"), appellant in appeal 18263.

Southern Missouri Bank ("SMB"), appellant in appeal 18268.

Robert P. Lowery, Personal Representative of the Estate of Herman Lowery, Deceased, ¹ respondent in both appeals.

At one time, Robert P. Lowery was a party in his individual capacity, as shall appear infra. Whether he remains so is an issue we need not decide. In this opinion, we refer to him in his representative capacity as "Personal Representative Lowery."

The judgment appealed from awards a fund exceeding $72,000 to Personal Representative Lowery. How that came about can be fathomed only by traveling the sinuous trail down which the parties led the trial court.

April 21, 1989. Plaintiff files seven-count petition against two defendants: SMB and Herman Lowery. The first five counts seek judgment against SMB; the final two counts seek judgment against Herman Lowery. The subject of all counts except Count V is an alleged $68,493.92 deposit by Plaintiff in SMB on June 18, 1982, for which SMB issued a certificate of deposit to Plaintiff. The petition avers that beginning in June, 1983, and continuing until June 17, 1985, one Helen Payne ("Ms. Payne") withdrew the money (ultimately, all of it). The petition further pleads: Ms. Payne married Herman Lowery; she conspired with him to obtain Plaintiff's funds; in furtherance of the scheme, she transferred the funds to a different bank and into an account of "Herman Lowery and Helen Lowery"; Plaintiff was unaware of this until Ms. Payne died; since her death, Herman Lowery has transferred the funds into others' names. A synopsis of each count of Plaintiff's petition appears under "Item A" in the Appendix to this opinion.

May 11, 1989. Herman Lowery files answer to Plaintiff's petition, admitting he (Herman) married Ms. Payne and generally denying Plaintiff's other allegations.

June 28, 1989. SMB files answer to Plaintiff's petition, denying fault. Accompanying the answer is a cross-claim by SMB against Herman Lowery. The cross-claim prays that if SMB is held liable to Plaintiff, SMB have judgment against Herman Lowery to the extent that any of Plaintiff's funds be traced to Herman. A synopsis of the cross-claim appears under "Item B" in the Appendix to this opinion.

July 5, 1989. Herman Lowery files answer to SMB's cross-claim, admitting he and Ms. Payne were married and remained so until she died. Herman also admits Ms. Payne deposited monies in a checking account in their joint names, but denies knowing the source of the funds.

July 11, 1989. SMB files application for temporary restraining order ("TRO"), motion for leave to join Robert P. Lowery as an "additional Defendant," and motion for leave to file an amended cross-claim against Herman Lowery and Robert P. Lowery. The application for TRO avers: on July 1, 1989, Robert P. Lowery appeared at SMB and deposited $69,108.39 in account 1700604496 ("account 4496"); the signature card for that account bears signatures of H.J. Lowery (believed by SMB to be Herman Lowery), Helen P. Lowery (believed by SMB to be the deceased Ms. Payne), and Robert P. Lowery; SMB believes the funds in account 4496 are, in whole or part, proceeds of the funds which Plaintiff claims were his; on July 7, 1989 (six days after the $69,108.39 deposit), Robert P. Lowery reappeared at SMB and stated he wanted to withdraw the entire amount in account 4496, some $71,831; an SMB official told Robert the transaction could not occur until July 10, 1989, because of the amount involved. These facts, says SMB, may subject it to liability if it denies Robert's request for withdrawal, and may also subject it to "further legal claims" by Plaintiff if SMB honors the request. The application prays for a TRO restraining Herman Lowery and Robert P. Lowery from withdrawing any funds from account 4496 and restraining SMB from disbursing any funds from said account without court order.

SMB's filings of July 11, 1989, were presented to the trial court ex parte that date. The trial court entered the TRO sought by SMB. The trial court also granted SMB leave to file an amended cross-claim joining Robert P. Lowery as a "Cross-Defendant."

SMB's first amended cross-claim was stamped "filed" July 11, 1989. It contains two counts. The first is identical to SMB's original cross-claim of June 28, 1989 (Appendix, Item B). The second count incorporates by reference the averments of SMB's application for TRO, and pleads SMB would be "subjected to conflicting legal claims and liabilities if it is presented with an order to pay over those funds presently deposited in [account 4496] without further order of the Court as it appears that Plaintiff and ... Herman Lowery ... each claim an interest therein." The second count prays for a "Preliminary Injunction" barring SMB "from paying such funds to any third person or party without further order of this Court...."

July 18, 1989. Summons and copies of TRO and SMB's first amended cross-claim are served on Robert P. Lowery.

July 21, 1989. Lawyer Thomas W. Cline files entry of appearance "as counsel for defendant, Robert P. Lowery." A handwritten stipulation is filed, bearing signatures of Robert P. Lowery, his lawyer, and SMB's lawyer. It reads, in pertinent part:

Comes now the defendants, Robert P. Lowery, and [SMB], and stipulate as follows:

(a) that the defendant, Robert P. Lowery, has made no contribution to the funds in [account 4496] which is the subject matter of the preliminary injunction herein.

(b) that said defendant has no interest in said account only to the extent that he appears on said account for the sole purpose of avoiding probate in the case of death of Herman Lowery....

(c) based upon the foregoing, [SMB] agrees to dismiss as against this defendant Robert P. Lowery, without prejudice.

An entry dated July 21, 1989, on the trial court's docket sheet reads, in pertinent part:

Stipulation filed and accepted by the court. Claim against Robert P. Lowery dismissed by [SMB] without prejudice. TRO continued to August 28, 1989, at 9:00 a.m. for the purpose of hearing evidence, by agreement of the parties. [SMB] directed to pay funds currently standing in [account 4496] into the registry of the court pending further proceedings....

July 24, 1989. SMB deposits $72,120.73 into registry of trial court. We henceforth refer to that money as "the registry funds."

August 15, 1989. Herman Lowery files (1) motion for leave to file amended answer to Plaintiff's petition, (2) the proposed first amended answer, (3) answer to SMB's first amended cross-claim, and (4) a cross-claim against SMB. The latter pleading avers: Herman Lowery and his son, Robert Lowery, are "named signatories" for account 4496; Robert requested withdrawal of approximately $71,831 from the account July 7, 1989; SMB denied the request, thereby breaching its duty to Herman Lowery; SMB's conduct was without lawful justification. Prayer is for judgment against SMB for $71,000 actual damages and $100,000 punitive damages.

August 28, 1989. SMB files motion to dismiss Herman Lowery's cross-claim against it, or alternatively to make the cross-claim more definite and certain. A hearing is held, but no ruling is made on those issues. An entry on the trial court's docket sheet dated August 28, 1989, reads: "Hearing held on record. Funds to remain with Circuit Clerk."

August 30, 1989. Herman Lowery dies.

September 8, 1989. Plaintiff files motion to add parties and file an amended petition. The motion avers Herman Lowery has died and "his children and heirs are Robert Lowery and Janet Brantly." Plaintiff's proposed amended petition accompanies the motion and is stamped "filed" September 8, 1989. Among its eight counts are three seeking relief against Robert Lowery and Janet Brantly on the theory that they succeeded to funds traceable from Plaintiff to Ms. Payne to Herman Lowery.

September 9, 1989. SMB files suggestion of Herman Lowery's death.

November 8, 1989. Lawyer Cline (counsel of record for Herman Lowery at the time he died) files three documents: (1) his entry of appearance "for Robert Lowery"; (2) motion of Robert Lowery for damages against SMB's bond; ² (3) motion of Robert Lowery for delivery of the registry funds to him. Document "2" pleads, inter alia:

1. Defendant Robert Lowery is an undisputed joint account holder of the account set forth in [SMB's] request for restraining order.

2. This Defendant was restrained from having access to said funds by a judicial order ... acquired by [SMB].

3. The restraining order has subsequently been dismissed and this Defendant is entitled to damages.

4. This Court has previously heard arguments on the issue of damages and this Defendant reiterates the position presented by his father, Defendant Herman Lowery, now deceased, who was a co-tenant of the account.

....

Document "3...