Siebert v. Peoples Bank

• Decision Date: 03 August 2021
• Docket Number: No. SD 36814,SD 36814
• Citation: 632 S.W.3d 461
• Parties: Sean SIEBERT, Plaintiff-Appellant, v. PEOPLES BANK, Defendant-Respondent.
• Court: Missouri Court of Appeals

632 S.W.3d 461

Sean SIEBERT, Plaintiff-Appellant,

v.PEOPLES BANK, Defendant-Respondent.

No. SD 36814

Missouri Court of Appeals, Southern District, Division Two.

Filed: August 3, 2021

Attorney for Appellant: John M. Reynolds of Clayton, MO.

Attorney for Respondent: R. Brooks Kenagy, III of Steelville, MO.

JEFFREY W. BATES, C.J./P.J.

Plaintiff Sean Siebert (Siebert) filed a four-count petition (Petition) against defendant Peoples Bank (the Bank) concerning a loan guaranty made by Siebert. The Petition contained counts alleging: (1) breach of contract; (2) fraudulent misrepresentation; (3) negligent misrepresentation; and (4) unjust enrichment. The Bank filed a motion to dismiss, which contended that each count failed to state a claim upon which relief could be granted. The trial court agreed and sustained the Bank's motion to dismiss via docket entry. After that ruling, Siebert elected to stand on the Petition as pleaded. Thereafter, the court entered a judgment stating that all four counts of Siebert's Petition were dismissed without prejudice for failure to state a claim for relief against the Bank. Siebert has appealed and presents four points (one for each count) challenging the dismissal of the Petition.

Existence of Statutory Authority for this Appeal

After Siebert filed his notice of appeal, this Court ordered Siebert to show cause why the appeal should not be dismissed for lack of a final judgment. In Siebert's response, he argued that the trial court's ruling falls within an exception to the general rule that a dismissal without prejudice is not final and appealable. We ordered that issue taken with the case.

"This Court has an obligation, acting sua sponte if necessary, to determine its authority to hear the appeals that come before it." First Nat'l Bank of Dieterich v. Pointe Royale Prop. Owners’ Ass'n, Inc. , 515 S.W.3d 219, 221 (Mo. banc 2017) ; see also Bare v. Carroll Elec. Coop. Corp. , 516 S.W.3d 395, 397 (Mo. App. 2017). The statutory basis for the appeal in this case is § 512.020, which authorizes an appeal from a "[f]inal judgment in the case[.]" § 512.020(5).¹ "A final judgment is a prerequisite to appellate review." Ndegwa v. KSSO, LLC , 371 S.W.3d 798, 801 (Mo. banc 2012). "If the circuit court's judgment was not a final judgment, then the appeal must be dismissed." Id . A final judgment "resolves all issues in a case, leaving nothing for future determination." Gibson v. Brewer , 952 S.W.2d 239, 244 (Mo. banc 1997) ; Ndegwa , 371 S.W.3d at 801.

"The general rule is that a dismissal without prejudice is not a final judgment and, therefore, not appealable." Doe v. Visionaire Corp. , 13 S.W.3d 674, 676 (Mo. App. 2000) ; see Naylor Senior Citizens Hous., LP v. Side Constr. Co., Inc. , 423 S.W.3d 238, 243 (Mo. banc 2014). One recognized exception to this general rule, however, is a dismissal without prejudice for "failure of the petition to state a claim where the plaintiff chose not to plead further[.]" Doe , 13 S.W.3d at 676.² When the effect of the trial court's ruling is to dismiss a plaintiff's action and not merely the pleading, then the dismissal is appealable. Mahoney v. Doerhoff Surgical Services, Inc. , 807 S.W.2d 503, 506 (Mo. banc 1991) ; Nicholson v. Nicholson , 685 S.W.2d 588, 589 (Mo. App. 1985). Stated another way, if the dismissal was such that refiling of the petition at that time would have been a futile act, then the order of dismissal is appealable. Nicholson , 685 S.W.2d at 589.

Here, the dismissal without prejudice was a dismissal of Siebert's specific theory of recovery alleged in each count. Siebert argues that: (1) the dismissal was made in response to arguments raised by the Bank that challenged whether each count stated a claim upon which relief could be granted, rather than the way each theory was pleaded; and (2) refiling the petition would have been a futile act. We agree. The Bank's motion to dismiss asserted that, as a matter of law, each count did not state a claim upon which relief could be granted. There was no argument from the Bank that any count could be repleaded in a way that would make it state a claim for relief. Therefore, "the judgment entered is final and appealable." Mahoney , 807 S.W.2d at 506 ; State ex rel. Henderson v. Asel , 566 S.W.3d 596, 599 n.6 (Mo. banc 2019). Accordingly, we address the merits of Siebert's appeal.

Standard of Review

An appellate court reviews a circuit court's decision to sustain a motion to dismiss de novo. Missouri State Conference of Nat'l Ass'n for Advancement of Colored People v. State , 601 S.W.3d 241, 246 (Mo. banc 2020). "A motion to dismiss does not permit the circuit court – or this Court on appeal – to determine the merits of a claim." Id . Instead, the proper inquiry on a motion to dismiss "is solely a test of the adequacy of the petition." Mitchell v. Phillips , 596 S.W.3d 120, 122 (Mo. banc 2020) (citation omitted).

When considering a motion to dismiss for failure to state a claim upon which relief can be granted, we also consider exhibits attached to the petition as a part of the allegations. See Hendricks v. Curators of Univ. of Missouri , 308 S.W.3d 740, 747 (Mo. App. 2010) ; Rule 55.12 ("[a]n exhibit to a pleading is a part thereof for all purposes"). Further, "this Court must accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and construe all allegations favorably to the pleader." Mitchell , 596 S.W.3d at 122-23 (citation omitted). We do not weigh the plaintiff's factual allegations to determine whether they are credible or persuasive. Nazeri v. Missouri Valley College , 860 S.W.2d 303, 306 (Mo. banc 1993).

We will, however, disregard conclusory allegations of fact and legal conclusions, neither of which can be considered by an appellate court in determining whether a petition states a claim upon which relief can be granted. See Hall v. Podleski , 355 S.W.3d 570, 578 (Mo. App. 2011). A motion to dismiss is properly granted when a petition "does not contain the ultimate facts or any allegations from which to infer those facts[.]" Id . When the trial court does not provide reasons for its dismissal, an appellate court will presume the dismissal was based on at least one of the grounds stated in the motion to dismiss. Fenlon v. Union Elec. Co. , 266 S.W.3d 852, 854 (Mo. App. 2008). We will affirm if the dismissal was appropriate on any ground stated in the motion. Id .

Factual and Procedural Background

1. Factual Allegations from the Petition

Siebert filed the Petition in November 2019. As required by our standard of review, we ignore any conclusory allegations of fact or legal conclusions. Thus pruned, the Petition alleged the following facts applicable to all four counts.

TwoAlity, LLC (TwoAlity) was a Missouri limited liability company. Its operations were governed by a 2011 operating agreement (Operating Agreement), a copy of which was attached to the Petition as Exhibit 1. Members included Brynne and Bailye Stansberry (the Stansberrys); Mardy Leathers (Leathers); and Siebert.

On March 6, 2013, TwoAlity entered into a loan agreement with the Bank. The Promissory Note and Security Agreement document (hereinafter referred to as the Loan) was signed by the Stansberrys and Siebert. A copy of the Loan was attached to the Petition as Exhibit 2. As a part of the Loan transaction, the "Bank received a copy of the 2011 Operating Agreement[.]"

Pursuant to the terms of the Loan, the Bank agreed to loan TwoAlity up to $150,000. The Loan qualified as a United States Small Business Administration (SBA) loan, pursuant to a separate contract between the Bank and the SBA.

On March 6, 2013, Siebert also executed two guaranties for the Loan. First, Siebert signed a guaranty agreement with the Bank (Bank Guaranty), a copy of which was attached to the Petition as Exhibit 3. Siebert also executed an "unconditional guarantee" agreement with the SBA (the SBA Guarantee), a copy of which was attached to the Petition as Exhibit 4.

The Loan defined the pronouns "I" and "me" to include each borrower who signed the Loan and any guarantor who agreed to pay the Loan. "You" and "Your" refer to the Bank as lender. The Loan states, in relevant part: "I promise to pay you or your order, at your address, or at such other location as you may designate, amounts advanced from time to time under the terms of this Loan Agreement up to the maximum total principal balance of $150,000[.]" With respect to advances, the Loan required indemnification by the borrower or guarantor, even if the person requesting the advance was "unauthorized":

I will indemnify you and hold you harmless for your reliance on any request for advances that you reasonably believe to be genuine. To the extent permitted by law, I will indemnify you and hold you harmless when the person making any request represents that I authorized this person to request an advance even when this person is unauthorized or this person's signature is not genuine.

As to the amount due, the Loan stated "[the Bank's] records will be conclusive evidence as to the amount of advances, the Loan's unpaid principal balances and the accrued interest."

In the SBA Guarantee, Siebert unconditionally guaranteed payment of the Loan for $150,000 to TwoAlity made by the Bank on March 6, 2013. This document included a section 6 entitled "RIGHTS, NOTICES, AND DEFENSES THAT GUARANTOR WAIVES[.]" Section 6.C. stated that Siebert waived any "defenses based upon any claim" that, in relevant part:

11) [the Bank] made errors or omissions in Loan Documents or administration of the Loan.

....

16) [the Bank] has taken an action allowed under the Note, this Guarantee, or other Loan Documents.

This document also included a section 9 entitled "GENERAL PROVISIONS[.]" Section 9.B. stated, in relevant part, that "Guarantor's liability will continue even if SBA pays [the Bank]."

On September 3, 2013, Siebert withdrew as a member of TwoAlity. Leathers had previously resigned as a member. "The remaining...