Wood v. Bank of Am., SD37340

CourtCourt of Appeal of Missouri (US)
Writing for the CourtWILLIAM W. FRANCIS, JR., P.J.
PartiesCARMEN E. WOOD (f/k/a Carmen E. Ready), an individual and in her capacity as Trustee of the Donald J. Ready and Carmen E. Ready Revocable Living Trust dated November 19, 2009, Plaintiff-Appellant, v. BANK OF AMERICA, N.A., Defendant/Respondent, and MILLSAP & SINGER, P.C., Defendant.
Decision Date09 June 2022
Docket NumberSD37340

CARMEN E. WOOD (f/k/a Carmen E. Ready), an individual and in her capacity as Trustee of the Donald J. Ready and Carmen E. Ready Revocable Living Trust dated November 19, 2009, Plaintiff-Appellant,
v.

BANK OF AMERICA, N.A., Defendant/Respondent,

and MILLSAP & SINGER, P.C., Defendant.

No. SD37340

Court of Appeals of Missouri, Southern District, First Division

June 9, 2022


APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Mark A. Powell, Judge.

OPINION

WILLIAM W. FRANCIS, JR., P.J.

Carmen E. Wood (f/k/a Carmen E. Ready), an individual and in her capacity as Trustee of the Donald J. Ready and Carmen E. Ready Revocable Living Trust dated November 19, 2009 ("Wood"), appeals the trial court's entry of summary judgment in favor of Bank of America,

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N.A. ("BANA") and release of a lis pendens. In two points on appeal, Wood argues that the trial court erred in granting BANA's motion for summary judgment on: (1) Wood's claim for breach of fiduciary duty in that this was a question of fact and not a question of law; and (2) Wood's claim for exemplary or punitive damages because this was a question of fact and not law. Finding no merit to Wood's points, we affirm the trial court's judgment.

Facts and Procedural History

In 2001, Wood, and her then-husband, Donald Ready ("Ready"), purchased real property located at 2533 North Fort Avenue, Springfield, Missouri (the "Property"). They took out two loans from BANA secured by the Property. Thereafter, they transferred their individual interests in the Property to the Donald J. Ready and Carmen E. Ready Revocable Living Trust.

Wood and Ready divorced in 2014. A "Judgment and Decree of Dissolution of Marriage" provided that the Property was to be "placed on the market and must be sold at fair market value or an amount agreeable by the parties." If the Property was not sold within twelve months from the judgment, then it was to be auctioned. Ready was allowed to occupy the home until it was sold, and was to be responsible for payment of all bills associated with the home, including maintaining insurance on the home. The Property was neither sold nor auctioned, and the joint revocable trust continued to hold title.

In July 2015, Ready obtained a $50, 000 line of credit from BANA to refinance the existing residential loan, thus eliminating Wood's personal liability for the 2001 loans ("2015 Loan"). While Wood did not sign a promissory note securing the loan, she and Ready did sign a Deed of Trust encumbering the Property as security for repayment of the 2015 Loan.

Ready later defaulted on the 2015 Loan. On October 3, 2018, BANA appointed Millsap & Singer, P.C., as Successor Trustee under the Deed of Trust. On May 15, 2019, Millsap & Singer

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served Wood and Ready with a Notice of Trustee's Sale scheduling a foreclosure sale on the Property for June 11, 2019.

On June 5, 2019, Wood filed a two-count petition against BANA and Millsap & Singer to prevent the foreclosure sale. Wood amended the petition on June 19, 2019, asserting in Count I a breach of fiduciary duties, and in Count II a claim for recovery of exemplary or punitive damages. Ready was not a party to Wood's lawsuit. The foreclosure sale was cancelled after Wood filed suit. Ready remains in default, but the sale has not gone forward. At some point, Wood filed a lis pendens against the Property.

Both BANA and Millsap & Singer filed motions to dismiss. After hearing argument, the trial court denied the motions finding:

AFTER CONSIDERATION, DFTS' MOTIONS TO DISMISS PLT'S PETITION MAY RAISE ISSUES OUTSIDE THE SCOPE OF PLT'S PETITION ITSELF AND MAY BETTER BE PRESENTED THROUGH
...

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