Schultz v. Bank of Am. Merrill Lynch Credit Corp.

• Decision Date: 10 May 2022
• Docket Number: ED 109959
• Parties: Odi Frumhoff SCHULTZ, Appellant, v. BANK OF AMERICA MERRILL LYNCH CREDIT CORPORATION, Respondent.
• Court: Missouri Court of Appeals

645 S.W.3d 689

Odi Frumhoff SCHULTZ, Appellant,

v.BANK OF AMERICA MERRILL LYNCH CREDIT CORPORATION, Respondent.

No. ED 109959

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: May 10, 2022

For Appellant: William E. Roussin, 11628 Old Ballas Rd., No. 116, St. Louis, MO 63141.

For Respondent: Douglas E. Winter, 1155 F Street, NW, Washington, D.C. 20004, Becky L. Huinker, 161 N. Clark St., Ste. 4300, Chicago, IL 60601.

KURT S. ODENWALD, Presiding Judge

Introduction

Odi Frumhoff Schultz ("Schultz") appeals from the circuit court's judgment granting Bank of America Merrill Lynch Credit Corporation's ("BANA's") motion to dismiss her petition (the "Petition") for failure to state a claim on which relief could be granted on the grounds that the claims were time-barred by the statute of limitations. Schultz raises two points on appeal. Point One maintains the circuit court's dismissal of the Petition was against the weight of the evidence and against the weight of the law because the Petition stated a claim for relief. Point Two argues the circuit court's dismissal of the Petition's claims as time-barred by the statute of limitations was against the weight of the evidence because the Petition alleged that the facts giving rise to the causes of action were fraudulently concealed from Schultz, thereby tolling and extending the statute of limitations. Because Point One is deficient under Rule 84.04¹ and preserves nothing for review by failing to identify the claim of error or the legal reasons supporting reversal, we dismiss the point. Because the doctrine of fraudulent concealment as pleaded in the Petition did not serve to further extend the statute of limitations for fraud, the circuit court did not err in finding the Petition's claims time-barred by the statute of limitations under Section 516.120(5),² and we deny Point Two. Accordingly, we affirm the circuit court's judgment.

Factual and Procedural History

In April 2020, Schultz filed the Petition in the circuit court bringing multiple counts against BANA arising out of an alleged fraud relating to a Deed of Trust signed in 2002. Schultz alleged her signature on the Deed of Trust was forged. The Deed of Trust secured a loan in the amount of $410,000 for the purchase of a home on Hibler Oaks Drive (the "Property"). The Petition alleged that Schultz's then-husband ("Ex-Husband") secured the residential loan from BANA³ without Schultz's knowledge. The couple subsequently divorced. The dissolution decree directed Ex-Husband to make all mortgage payments on the loan until 2007, at which time Ex-Husband was to transfer his interest in the Property to Schultz. In 2008, Ex-Husband executed a quit claim deed conveying his interest in the Property to Schultz pursuant to the terms of their dissolution decree.

BANA notified Schultz of its intention to foreclose on the Property on August 27, 2013. Schultz became aware that Ex-Husband had only been making interest payments and had not paid towards the principle amount borrowed. At the time, Schultz thought Ex-Husband had defrauded her, not the bank, and that she would have to get the money from him. Schultz also alleged that Ex-Husband had been harassing her and, as a result, she was not thinking clearly and was under duress. To avoid foreclosure and obtain her loan for the purchase of a new home, Schultz paid BANA $410,000. The Petition states that at the time of closing, BANA told Schultz she was responsible for the amount due on the Deed of Trust, and BANA did not alert her that the Deed of Trust contained her forged signature.

Schultz pleaded that she did not become aware of the alleged forgery of her signature on the Deed of Trust until June 2018 after she had paid off the Deed of Trust. The Petition does not set forth any additional facts explaining how Schultz discovered the forgery. Schultz filed her first suit against BANA in 2019, and the case was dismissed without prejudice. Schultz then filed this Petition in 2020.

The Petition alleged Schultz's signature on the Deed of Trust was forged and had been fraudulently notarized by the notary public outside of Schultz's presence. The Petition brought the following counts against BANA: violation of statute for liability as the employer of a notary public, negligence, slander of title, fraudulent misrepresentation, fraud in the inducement, and fraud in the concealment.

BANA moved to dismiss the Petition for failure to state a claim on which relief could be granted. In particular, BANA alleged that the Petition's claims were time-barred by the statute of limitations in Section 516.120. BANA asserted that Schultz's claims accrued as early as 2002 when the Deed of Trust was signed, or alternatively when any of the following events occurred that made the claims ascertainable: the Deed of Trust being recorded in 2002; the dissolution decree ordering Ex-Husband to make mortgage payments in 2003; the failure of Ex-Husband to comply with the dissolution decree's order to pay off the Note and Deed of Trust and transfer his interest in the property to Schultz in 2007; the transfer of Ex-Husband's interest in the property to Schultz by quit claim deed in 2008; or Schultz's receipt of notice from BANA of its intent to foreclose and Schultz's selling of the property to third parties and paying off the Note and Deed of Trust in 2013. BANA argued that regardless of which of the preceding events caused the claims in the Petition to accrue, whether they accrued in 2002 or if they did not accrue until as late as 2013, the five-year statute of limitations barred all claims in the 2020 Petition.

In October 2021, following briefing and argument, the circuit court granted BANA's motion to dismiss the Petition with prejudice for failure to state a claim. The circuit court found that Schultz knew or reasonably could have discovered the facts giving rise to her claim on or before August 27, 2013. The circuit court concluded Schultz's claims were time-barred by the statute of limitations and that the doctrine of fraudulent concealment did not toll the statute of limitations. Schultz did not file a motion for new trial or a motion to amend the judgment. Schultz now appeals.

Points on Appeal

Schultz raises two points on appeal. Point One argues the circuit court's dismissal of the Petition was against the weight of the evidence and against the weight of the law because the Petition states a cause of action on which relief could be granted and "met the cause [sic] law standard for stating a case." Point Two contends the circuit court's dismissal of the Petition was against the weight of the evidence and against the weight of the law because the Petition established that the facts giving rise to the causes of action were fraudulently concealed from Schultz, thereby tolling and extending the statute of limitations.

Standard of Review

We review a circuit court's dismissal of a Petition for failure to state a claim on which relief can be granted de novo without deference to the circuit court.

Dean v. Noble, 477 S.W.3d 197, 203 (Mo. App. W.D. 2015) (internal citation omitted). "A Rule 55.27(a)(6) motion solely tests a petition's adequacy." Jennings v. Bd. of Curators of Mo. State Univ., 386 S.W.3d 796, 797 (Mo. App. S.D. 2012) (internal citation omitted). "[T]he pleading is granted its broadest intendment, all facts alleged are treated as true, and it is construed favorably to the plaintiff to determine whether the averments invoke substantive principles of law which entitle the plaintiff to relief." Dean, 477 S.W.3d at 203 (quoting Farm Bureau Town & Country Ins. Co. v. Angoff, 909 S.W.2d 348, 351 (Mo. banc 1995) ). Additionally, we review questions of law de novo, including whether a claim is barred by the statute of limitations. Id. (citing Bateman v. Platte Cnty., 363 S.W.3d 39, 42 (Mo. banc 2012) ).

Schultz's appellate brief expresses confusion as to the circuit court's grounds for dismissal. However, the circuit court clearly and unambiguously dismissed the Petition for failure to state a claim on which relief could be granted, specifically finding that Schultz's claims were time-barred by the statute of limitations. Even if the circuit court had not explained its reasons for dismissal in its written judgment, we would proceed under the presumption that the dismissal was entered for one of the reasons stated in the motion to dismiss, which included the statute of limitations, and would "affirm if dismissal was appropriate on any ground stated therein." Eckel v. Eckel, 540 S.W.3d 476, 482 (Mo. App. W.D. 2018) (quoting Costa v. Allen, 274 S.W.3d 461, 462 (Mo. banc 2008) ); Dean, 477 S.W.3d at 203 (internal citation omitted). "With respect to the timeliness of claims, ‘[i]f it clearly appears on the face of the petition that the cause of action is barred by the applicable statute of limitations, the motion to dismiss is properly sustained.’ " Eckel, 540 S.W.3d at 482 (quoting Armistead v. A.L.W. Grp., 60 S.W.3d 25, 26 (Mo. App. E.D. 2001) ); Dean, 477 S.W.3d at 203 (internal citation omitted).

Discussion

I. Point One—Dismissed for Rule 84.04 Deficiencies

Preliminarily, we are charged with sua sponte determining whether Point One complies with the Rules of Appellate Procedure set forth in Rule 84.04. "Rule 84.04 sets forth the minimum requirements for appellate briefing." Murphree v. Lakeshore Estates, LLC, 636 S.W.3d 622, 623 (Mo. App. E.D. 2021) (citing Bennett v. Taylor, 615 S.W.3d 96, 98 (Mo. App. E.D. 2020) ). "Compliance with those rules is necessary ‘to ensure that appellate courts do not become advocates by inferring facts and arguments that the appellant failed to assert.’ " Estate of Allen, 615 S.W.3d 851, 853 (Mo. App. E.D. 2020) (internal quotation omitted). We prefer to decide an appeal on the merits "where disposition is not hampered by rule violations and the argument is readily understandable." Murphree, 636 S.W.3d at 624 (quoting Bennett, 615 S.W.3d at 98 ). However, "if the brief...