Wood v. Millsap & Singer, P.C.

• Docket Number: SD 37921
• Decision Date: 07 September 2023
• Citation: 677 S.W.3d 876
• Parties: 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. MILLSAP & SINGER, P.C., et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

677 S.W.3d 876

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.MILLSAP & SINGER, P.C., et al., Defendants-Respondents.

No. SD 37921

Missouri Court of Appeals, Southern District, In Division.

Filed: September 7, 2023

Rehearing and/or Transfer Denied September 29, 2023

Application for Transfer Denied November 21, 2023

Attorneys for Appellant – Thomas W. Millington, Kathryn A. Millington of Springfield, MO.

Attorney for Respondent – Charles S. Pullium, III of St. Louis, MO.

JENNIFER R. GROWCOCK, J.

Carmen E. Wood appeals the entry of summary judgment in favor of Millsap & Singer, P.C. ("Millsap") and against her claims for breach of fiduciary duty and exemplary or punitive damages.Ms. Wood raises four points on appeal, effectively asking us to reevaluate our prior appellate decision affirming the trial court's entry of summary judgment in favor of Bank of America, N.A. ("BANA"), a prior co-defendant in this same litigation.We affirm.

Factual and Procedural History

We recounted the underlying facts of this case in Wood v. Bank of Am., N.A. :

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] as Successor Trustee under the Deed of Trust.On May 15, 2019, [Millsap] 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] 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.

648 S.W.3d 867, 868-69(Mo. App. S.D.2022).The trial court granted BANA's motion for summary judgment against Ms. Wood on July 22, 2021, and an Amended Judgment was entered September 2, 2021.We affirmed this decision because, where Ms. Wood's claims were premised on an attorney-client relationship with Millsap, Ms. Wood "[could not] show that [Millsap] breached a fiduciary duty to her or that its independent duty to [Ms. Wood] as the Deed of Trust trustee can somehow be imputed to its sometime client, [BANA]."Id. at 870-71(quoting BANA's brief).The Supreme Court of Missouri later denied Ms. Wood's application for transfer on August 30, 2022.Based in part on Wood , the trial court granted Millsap's motion for summary judgment in its favor via docket entry on July 28, 2022, and entered judgment on October 31, 2022.Ms. Wood now appeals the trial court's judgment granting summary judgment in Millsap's favor.

Standard of Review

An appellate court"reviews the grant of summary judgment de novo and will affirm if summary judgment was appropriate on any basis supported by the record."Wilson v. City of St. Louis , 662 S.W.3d 749, 754(Mo. banc 2023).Our review is relegated to the Rule 74.04(c) record of the non-moving party's admissions and denials of material facts in response to the movant's motion for summary judgment.¹Green v. Fotoohighiam , 606 S.W.3d 113, 117-18(Mo. banc 2020);Hartwell v. Am. Fid. Assurance Co. , 607 S.W.3d 807, 813(Mo. App. S.D.2020).Accordingly:

[1] Facts come into a summary judgment record only via Rule 74.04(c)’s numbered-paragraphs-and-responses framework.[2]Courts determine and review summary judgment based on that Rule 74.04(c) record, not the whole trial court record.[3] Affidavits, exhibits, discovery, etc. generally play only a secondary role, and then only as cited to support Rule 74.04(c) numbered paragraphs or responses, since parties cannot cite or rely on facts outside the Rule 74.04(c) record.[4][S]ummary judgment rarely if ever lies, or can withstand appeal, unless it flows as a matter of law from appropriate Rule 74.04(c) numbered paragraphs and responses alone.

Jones v. Union Pac. R.R. Co. , 508 S.W.3d 159, 161(Mo. App. S.D.2016)(emphasis in original)(internal footnotes and quotation marks omitted).Taken together, these summary judgment principles require a court to "determine whether uncontroverted facts established via Rule 74.04(c) paragraphs and responses demonstrate [movant's] right to judgment regardless of other facts or factual disputes. "Pemiscot County Port Authority [v. Rail Switching Servs., Inc. ], 523 S.W.3d [530,] 534[(Mo. App. S.D.2017)](emphasis in original).

Green , 606 S.W.3d at 117-18.We review the record in the light most favorable to the non-moving party.Newton v. Mercy Clinic E. Cmtys. , 596 S.W.3d 625, 628(Mo. banc 2020).

Analysis

Point I: Trial CourtsMay Grant Summary Judgment on a Breach of Fiduciary Duty Claim.

In her first point, Ms. Wood argues the trial court erred in granting Millsap's motion for summary judgment because its decision was "premised upon an erroneous fact determination that [Millsap] did not breach a fiduciary duty which [Millsap] had admitted it owed to [Ms. Wood]" and "[a]n alleged breach of an admitted fiduciary duty is not a proper subject of a trial court determination in ruling on a summary judgment motion[.]"She asks us to make new law by holding a trial court cannot enter summary judgment on breach of fiduciary claims.We reject this invitation.

Summary judgment is appropriate when the moving party shows there is no genuine dispute of the material facts and, on that basis, the movant is entitled to judgment as a matter of law.Green , 606 S.W.3d at 115.A trial court may enter summary judgment on any"claim, counterclaim, or cross-claim[.]"Rule 74.04(a)-(b).When the moving party is a defendant, a successful motion for summary judgment demonstrates: 1) facts negating any one of the elements of a non-moving party's claim; 2) after an adequate period for discovery, the non-movant has not been able to produce, and will not be able to produce, evidence sufficient to establish any element of a claim; or 3) there is no genuine dispute as to the existence of facts necessary to support an affirmative defense.Lisle v. Meyer Elec. Co. , 667 S.W.3d 100, 103(Mo. banc 2023).Once the moving party has met this burden, the non-movant can only avoid summary judgment if they show material facts remain in dispute by reference to discovery, exhibits, or affidavits.Green , 606 S.W.3d at 117;Hartwell , 607 S.W.3d at 813;Rule 74.04(c)(2).

Nothing in Rule 74.04 exempts a breach of fiduciary duty claim from summary judgment.Nothing in Ms. Wood's cited authority suggests summary judgment is impossible when there is no material dispute underlying an alleged breach of duty.²Ms. Wood believes, so long as Millsap has a fiduciary duty, the trial court"was ... not entitled to determine whether the fiduciary duty had been breached."Examples to the contrary belie this belief.See , e.g. , Knockerball MidMo, LLC v. McGowan & Co., Inc. , 667 S.W.3d 640, 648(Mo. App. W.D.2023)(affirming a grant of summary judgment on a breach of fiduciary duty claim where a duty existed but plaintiff could not establish damages);see alsoYam Cap. III, LLC v. GS Hosp., LLC , 648 S.W.3d 878, 889(Mo. App. S.D.2022)(affirming a grant of summary judgment on a breach of fiduciary duty claim where appellant did not challenge the trial court's finding that a foreclosure sale did not violate any fiduciary duty).

So long as a party establishes it is entitled to summary judgment as a matter of law, its fiduciary duty is no impediment.SeeRobinson v. Lagenbach , 439 S.W.3d 853, 859(Mo. App. E.D.2014)("Because [appellant] has alleged no action that breaches [respondent's] fiduciary duty as a trustee of the voting trust, we affirm the judgment[.]").Point I is denied.

Points II and III: The Trial Court did not Err in Sustaining Millsap's Motion for Summary Judgment Following Our Opinion in Wood .

Ms. Wood claims in her second point that the trial court erred by relying on our Wood decision because it "did not constitute law of the case or a binding appellate court determination[.]""The doctrine of the law of the case provides that a previous holding in a case constitutes the law of the case and precludes relitigation of the issue on remand and subsequent appeal."Emerald Pointe, LLC v. Taney Cnty. Plan. Comm'n , 660 S.W.3d 482, 488(Mo. App. S.D.2023)(quotingSmith v. Brown & Williamson Tobacco Corp. , 410 S.W.3d 623, 632(Mo. banc 2013) );Am. Eagle Waste Indus., LLC v. St. Louis Cnty. , 379 S.W.3d 813, 825(Mo. banc 2012)."This rule applies to matters decided by the...