Big v. Vogel

561 S.W.3d 28
CourtMissouri Court of Appeals
DecidedAugust 14, 2018
DocketWD 81215
StatusPublished
Cited by4 cases

This text of 561 S.W.3d 28 (Big v. Vogel) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Big v. Vogel, 561 S.W.3d 28 (Mo. Ct. App. 2018).

Opinion

Karen King Mitchell, Chief Judge

Big A LLC (Big A) appeals the denial of its motion for judgment notwithstanding the verdict following a jury trial and judgment in favor of Paul Vogel. Big A contends that the trial court erred in denying its motion because Vogel failed to make a submissible case on his affirmative defense of fraudulent inducement. Big A asserts that, as the guarantor who accepted primary liability for the debt of another, Vogel can reasonably rely on representations pertaining only to the nature of his obligations as guarantor; he cannot avoid his obligations by alleging fraudulent inducement based on representations about the condition and value of the collateral securing the debt where such representations were not included in the guaranties. Because we find that Vogel made a submissible case on the affirmative defense of fraudulent inducement, we affirm the trial court's denial of Big A's motion for judgment notwithstanding the verdict.

Background1

This case has a long and complicated factual and procedural history. For purposes of this appeal, which involves a fairly narrow legal issue, we include only those facts necessary for a full understanding and evaluation of that issue.

In June 2010, Shaun Hayes, an officer and director of Excel Bank (Bank), contacted Vogel about an investment opportunity. Vogel had done business with Bank in the past and trusted Bank's officers, especially Hayes. Vogel, Hayes, and another bank officer, Timothy Murphy, met in early June to discuss the deal.

At the meeting, Hayes told Vogel that Bank had made certain loans to Eighteen Investments, Inc. (Eighteen) that Bank wanted to get off its books for regulatory reasons. The loans were evidenced by promissory notes (the Eighteen promissory notes) and were secured by real estate in Arizona. Hayes told Vogel that Bank would sell the notes to Vogel for an amount less than the note balances and that the value of the Arizona real estate exceeded the balance due on the notes. Hayes also told Vogel that a property manager was managing the Arizona real estate, that the rental income would more than service the debt, and that the rental payments were being made to Bank.

Hayes failed to tell Vogel that Bank had purchased the Eighteen promissory notes for $0.51 on the dollar from National City Bank several months earlier and had immediately *31divided the notes into three pools and sold them off. Hayes also failed to tell Vogel that any amounts he would borrow would be credited to the owners of the pools. This information would have been useful to Vogel in evaluating whether to proceed.

Based on Hayes's representations during their meeting, Vogel decided to proceed with the transaction but structure the deal to benefit his children. A few days after the meeting, Vogel provided a copy of his personal financial statement to Murphy at Hayes's request, and Vogel established Lindworth Family Trust (Trust) and Lindworth Investments, LLC (Lindworth) for purposes of entering into the deal. Lindworth was owned by the Trust and family friend Donald Sallee served as trustee; Vogel was not in charge of either entity at the time. Lindworth was to be both the borrower and the purchaser of the Eighteen promissory notes from Bank. Bank required Vogel to sign personal guaranties for the notes, which he agreed to do. Murphy agreed to keep Vogel apprised of all information about the deal.

Bank ordered appraisals on the Arizona properties and obtained property valuation reports for them from the Maricopa County, Arizona, Assessor's Office.2 Before closing, Vogel asked Murphy to provide copies of any appraisals, but no one at Bank provided them to Vogel. And, Vogel was not informed that Bank possessed property valuation reports from the county. The appraisals and valuations showed that, contrary to Hayes's representations, the value of the Arizona properties was less than the loan amount. Vogel would not have agreed to the deal if he had been given the appraisals or valuation reports before closing. At no point before closing did Hayes or Murphy correct any of the misrepresentations Hayes made during the early June meeting with Vogel. Nor did Bank inform Vogel that rental income from the Arizona properties was not being paid to Bank or that the amounts Lindworth was going to borrow, and that he was personally going to guaranty, were going to be credited to the accounts of the pool borrowers. That information would have been important to Vogel in deciding whether to proceed with the deal.

On June 29, 2010, Sallee, the trustee acting on behalf of Lindworth, executed thirteen promissory notes (the Lindworth promissory notes) borrowing money from Bank with which Lindworth either purchased the Eighteen promissory notes from Bank or purchased the real properties from Eighteen (the pleadings in the record indicate both scenarios in different places, and the exact sequence of transactions is unclear).3 Vogel executed thirteen guaranties, one for each Lindworth *32promissory note.4 As guarantor, Vogel "absolutely and unconditionally guarantee[d] to Lender [Bank] the full and prompt payment when due, whether at maturity or earlier by reason of acceleration or otherwise, of the debts, liabilities and obligations described [therein]." Vogel "guarantee[d] to Lender the payment and performance of each and every debt, liability and obligation of every type and description which Borrower [Lindworth] may now or at any time hereafter owe to Lender."

The guaranties signed by Vogel contain the following provisions relevant to this appeal:

1. No act or thing need occur to establish the liability of the Undersigned [Vogel] hereunder, and no act or thing, except full payment and discharge of all indebtedness, shall in any way exonerate the Undersigned or modify, reduce, limit or release the liability of the Undersigned hereunder.
...
6. The liability of the Undersigned shall not be affected or impaired by any of the following acts or things (which Lender is expressly authorized to do, omit or suffer from time to time, both before and after revocation of this guaranty, without notice to or approval by the Undersigned): ... (iv) any full or partial release of, settlement with, or agreement not to sue, Borrower or any other guarantor or other person liable in respect of any Indebtedness; ... (vi) any failure to obtain collateral security (including rights of setoff) for Indebtedness, or to see to the proper or sufficient creation and perfection thereof, or to establish the priority thereof, or to protect, insure, or enforce any collateral security; or any release, modification, substitution, discharge, impairment, deterioration, waste, or loss of any collateral security; ....
7. The Undersigned waives any and all defenses, claims and discharges of Borrower [Lindworth], or any other obligor, pertaining to Indebtedness, except the defense of discharge by payment in full. Without limiting the generality of the foregoing, the Undersigned will not assert, plead or enforce against Lender any defense of ... fraud ... which may be available to Borrower or any other person liable in respect of any Indebtedness, or any setoff available against Lender to Borrower or any such other person, whether or not on account of a related transaction.
...

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Bluebook (online)
561 S.W.3d 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/big-v-vogel-moctapp-2018.