Vantage Credit Union v. Chisholm

• Decision Date: 09 September 2014
• Docket Number: No. ED 100333.,ED 100333.
• Citation: 447 S.W.3d 740
• Court: Missouri Court of Appeals
• Parties: VANTAGE CREDIT UNION, Respondent, v. Jimmy M. CHISHOLM, Appellant.

447 S.W.3d 740

VANTAGE CREDIT UNION, Respondent

v.Jimmy M. CHISHOLM, Appellant.

No. ED 100333.

Missouri Court of Appeals, Eastern District, Division Three.

Sept. 9, 2014.

Reconsideration Denied Nov. 4, 2014.

John J. Pawloski, Office of John J. Pawloski, LLC, St. Louis, MO, for appellant.

Jill R. Rembusch, Petya B. Beltcheva, Bonnie Clair, Summer Compton Wells LLC, St. Louis, MO, for respondent.

KURT S. ODENWALD, Presiding Judge.

Introduction

Appellant Jimmy Chisholm (“Chisholm”) appeals from the judgment of the trial court granting summary judgment in favor of Respondent Vantage Credit Union (“Vantage”) on Vantage's claim for breach of contract and Chisholm's counterclaims for vexatious refusal to pay, fraud, violation of the Missouri Merchandising Practices Act (“MMPA”), and breach of contract. The trial court found no genuine issue as to the material facts establishing that Chisholm breached his credit agreement with Vantage by failing to make payments on his outstanding credit card balance. Chisholm's counterclaims allege Vantage breached its obligations relating to Chisholm's purchase of credit disability insurance through Vantage. The trial court also granted summary judgment in favor of Vantage on the counterclaims finding that Chisholm could not succeed on his counterclaims because Vantage is not an insurer. Because genuine issues of material fact exist as to whether Vantage performed its obligations with regard to Chisholm's purchase of credit disability insurance coverage, we reverse the trial court's judgment with respect to Chisholm's counterclaim for breach of contract only. Because the trial court properly found no genuine issues of material fact with regard to the remaining claims, we affirm the trial court's entry of judgment in all other respects.

Factual and Procedural History

Viewed in the light most favorable to the non-moving party, the record contains the following facts: On May 3, 2006, Chisholm applied for a VISA Gold credit card with Vantage by completing a one-page loan application form. The application contained a section titled “Optional Credit Insurance.” By completing this section of the application, Chisholm could elect to purchase optional credit life and/or disability insurance. The application explained:

Credit Life and/or Credit Disability Insurance is not required to obtain credit under this plan and will be included only if requested immediately below by the APPLICANT. You have the right to use alternative coverage or to buy insurance elsewhere. The Insurance rates are shown below. Each month, the Insurance charge is calculated and disclosed to You separately. You must be under age 66 for Credit Disability Insurance and under age 71 for Credit Life Insurance. Also, you must be in active full time work for wages or profit and physically present at work for at least 30 hours for each of the two consecutive weeks prior to each loan advance in order for the Insurance to take effect for that advance.

...

If this application is for a Credit Line account and You are applying for Credit Insurance, You authorize Us to add the required premiums to Your Account, charge a Finance Charge on the premiums at the rate which applies to Your Account, and forward such premiums to the Insurance Company.

Chisholm elected to purchase single coverage credit life insurance and single coverage credit disability insurance.

By signing the loan application, Chisholm agreed to the terms of Vantage's Credit Line Account Agreement and Federal Disclosure Statement (“credit agreement”). The credit agreement required monthly payments of 3.00% of the new unpaid account balance at the end of each billing cycle, subject to the lesser of $26.00 or the balance, plus any portion of the minimum payments shown on prior statements that remain unpaid, and any amount that exceeds any approved credit limit. The credit agreement also provided for an annual interest rate of 12.90%.

Vantage approved Chisholm's application and thereafter extended credit to him in the amount of $19,183.83. On or about December 31, 2008, Chisholm became disabled and stopped working.¹ Sometime thereafter, Chisholm attempted to make a claim for benefits under the credit disability insurance he obtained through Vantage. It is not disputed that Chisholm contacted both Vantage and its third-party insurer, Life Investors Insurance Company of America n/k/a Transamerica Life Insurance (“Transamerica”), about obtaining benefits under his credit disability insurance benefits policy. However, the parties dispute the extent and content of the communications between Chisholm, Vantage, and Transamerica. Chisholm made no further payments to Vantage toward the unpaid balance on his VISA Gold account after December 16, 2010.

On April 1, 2011, Vantage filed a petition for breach of contract. Vantage alleged that Chisholm breached the credit agreement by failing to make the required payments to Vantage on the VISA Gold account. Vantage sought damages in the amount of $21,208.50 plus interest and attorneys' fees. On August 5, 2011, Chisholm filed a counterclaim petition against Vantage and Transamerica alleging vexatious refusal to pay, fraud, violation of the MMPA, and breach of contract. Chisholm averred that Vantage and Transamerica sold him a credit disability insurance policy, accepted his premium payments, and thereafter failed and refused to provide him credit disability insurance coverage. Despite naming Transamerica as a defendant in his counterclaim petition, Chisholm never secured and completed service on Transamerica.

On February 21, 2012, Vantage filed for summary judgment on its breach of contract claim against Chisholm and on Chisholm's four counterclaims against Vantage. After hearing argument, the trial court granted Vantage's motion for summary judgment in full. The trial court then entered judgment in favor of Vantage on its breach of contract claim and on Chisholm's four counterclaims.² This appeal follows.

Point on Appeal

In his sole point on appeal, Chisholm alleges that the trial court erred in granting summary judgment in favor of Vantage because genuine issues of material fact exist as to whether Vantage performed its obligations under its contract with Chisholm, including whether Vantage undertook the role of an insurer and whether it properly processed and forwarded Chisholm's claim for disability payments.

Standard of Review

We review the grant of summary judgment de novo, giving no deference to the trial court's findings or determinations. ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We review the record in the light most favorable to the party against whom judgment was entered and give the non-movant the benefit of all reasonable inferences from the record. Id.; Calvert v. Plenge, 351 S.W.3d 851, 854–55 (Mo.App. E.D.2011).

Discussion

I. Summary Judgment Standard

A movant's right to judgment as a matter of law differs depending upon whether that movant is a “claimant” or a “defending party.” ITT Commercial Fin. Corp., 854 S.W.2d at 380. A claimant is one who seeks to recover either by claim, counterclaim, cross-claim or declaratory judgment. Rule 74.04(a).³ A defending party is one against whom recovery is sought. Rule 74.04(b). To be entitled to summary judgment, a claimant must establish (1) that there is no genuine dispute as to those material facts upon which the claimant would have had the burden of persuasion at trial, and that (2) based on these undisputed facts, it is entitled to judgment as a matter of law. ITT Commercial Fin. Corp., 854 S.W.2d at 380–81. To do so, the claimant must state with particularity all the undisputed material facts necessary to establish each and every element of its claim, referencing the pleadings, discovery, or affidavits that demonstrate the lack of a genuine issue as to those facts. Id.

On the other hand, a defending party may establish a right to judgment by showing any one of the following: (1) facts that negate any one of the claimant's elements, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly pleaded affirmative defense. Id. at 381.

The showing required of the non-movant in the face of a properly pleaded summary judgment motion is the same regardless of whether the non-movant is a claimant or defending party:

The non-movant never needs to establish a right to judgment as a matter of law; the non-movant need only show that there is a genuine dispute as to the facts underlying the movant's right to judgment. For purposes of Rule 74.04, a ‘genuine issue’ exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. A ‘genuine issue’ is a dispute that is real, not merely argumentative, imaginary or frivolous. Where the ‘genuine issues' raised by the non-movant are merely argumentative, imaginary or frivolous, summary judgment is proper.

Id. at 381–82.

II. Vantage's Breach of Contract Claim

With respect to Vantage's claim for breach of contract, Vantage is the claimant. Thus, to prevail on its motion for summary judgment for breach of contract, Vantage must show the absence of any genuine dispute as to the material facts establishing each element of its claim, and, based upon those facts, that it is entitled to judgment as a matter of law. The essential elements of a breach of contract action include: (1) the existence and terms of a contract; (2) that plaintiff performed or tendered performance pursuant to the contract; (3) breach of the contract by the defendant; and (4) damages suffered by the plaintiff. Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. banc 2010).

Here, the undisputed...