Carney Funeral Chapel, Inc. v. Savings of America, Inc.

978 S.W.2d 820, 37 U.C.C. Rep. Serv. 2d (West) 22, 1998 Mo. App. LEXIS 1988, 1998 WL 767642
CourtMissouri Court of Appeals
DecidedNovember 5, 1998
DocketNo. 22011
StatusPublished
Cited by2 cases

This text of 978 S.W.2d 820 (Carney Funeral Chapel, Inc. v. Savings of America, Inc.) 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
Carney Funeral Chapel, Inc. v. Savings of America, Inc., 978 S.W.2d 820, 37 U.C.C. Rep. Serv. 2d (West) 22, 1998 Mo. App. LEXIS 1988, 1998 WL 767642 (Mo. Ct. App. 1998).

Opinion

CROW, Judge.

This appeal arises from two lawsuits filed October 18, 1988. Each suit had multiple plaintiffs and multiple defendants. The trial court consolidated the suits some fifteen months after they were filed.

Ultimately (on October 30, 1997), the trial court granted a motion for summary judgment by one defendant on all claims against it by all plaintiffs. This appeal followed.

The intricate issues confronting this court require an introduction of the parties and a summary of the allegations on which the plaintiffs based their claims.

One suit was numbered CV188-2182CC in the trial court. This opinion refers to that suit as “case 2182.” This opinion sets forth the pertinent details about case 2182 separately from the details about the other suit.

Three plaintiffs instituted case 2182. They are identified in the first amended petition1 as: Whelchel Funeral Chapel, Ltd., Inc. (“Whelchel”); Robert Miller, doing business as Cedarvalley Memorial Funeral Home (“Cedarvalley”); and Paul Howell (“Howell”). The first amended petition avers Howell brings the suit “on behalf of himself and as a class representative on behalf of a class of which he is a member.”

The first amended petition in case 2182 names five defendants. The first named defendant is Savings of America, Inc. (“SOA”).2 [822]*822The second named defendant is Future Trust, Inc. (“Future Trust”). The third named defendant is R. Deryl Edwards (“Edwards”). The first amended petition avers Future Trust is “presently involved in proceedings under Chapter 11 of the Bankruptcy Code ... and ... Edwards is the acting trustee under said bankruptcy proceedings.” The fourth named defendant is Barnett Bank of West Florida (“the Florida bank”). The final named defendant is Mercantile Bank of Table Rock Lake (“Mercantile”).3

The allegations of the first amended petition in case 2182 pertinent to this appeal are summarized in the ensuing eleven numbered paragraphs.

1. In 1982, Future Trust was in the business of contracting with individuals for prearranged funeral services. An individual (the “Purchaser”) who desired to arrange a funeral for himself or another (the “Beneficiary”) could sign a contract with Future Trust whereby the Purchaser agreed to pay Future Trust a specified amount in designated installments. In return, Future Trust agreed to provide a funeral service for the Beneficiary when the Beneficiary died. This opinion henceforth refers to such contracts as “the Purchaser contracts.”

2. The Purchaser contracts provided, inter alia:

“Future Trust shall deposit an amount equal to all sums received from Purchaser, less statutorily authorized fees, into a special account in a bank, savings & loan association or other qualified financial institution, as provided by law, within 120 days after receipt. The current Trustee of the Preneed [sic] Trust into which contract payments shall be deposited is BOATMEN’S UNION NATIONAL BANK of Springfield, Missouri.”

3. Future Trust did not own or operate a mortuary. Consequently, in order to provide the funeral service called for in a Purchaser contract, Future Trust would enter into a contract with the operator of a mortuary (“the Funeral Home”) whereby the Funeral Home would, for a specified price to be paid by Future Trust, provide the funeral service called for in a Purchaser contract. This opinion henceforth refers to the contracts between Future Trust and a Funeral Home as “the Funeral Home contracts.”

4. In 1982, Whelehel entered into a Funeral Home contract with Future Trust. That same year, Cedarvalley also entered into a Funeral Home contract with Future Trust.

5. Howell and other individuals entered into Purchaser contracts with Future Trust and made payments to Future Trust in accordance with those contracts.

6. Pursuant to the contracts referred to in paragraphs 4 and 5, a “bank account” numbered 219-002276-0 was created at SOA in the names of Whelehel, Cedarvalley and Future Trust. Payments received by Future Trust from individuals under Purchaser contracts were deposited in that account, henceforth referred to as “account 2276.”

7. On August 15, 1984, SOA issued two checks on account 2276. Each check was payable to Whelehel, Cedarvalley and Future Trust. One check, numbered 219-0027717, was for $5,323.60. The other, numbered 219-0027708, was for $90,000.4

8. The drawer of the checks described in paragraph 7 (copies of which appear in the record) was SOA. The drawee was the Florida bank.

9. The two cheeks, bearing the supposed endorsements of Whelehel, Cedarvalley and [823]*823Future Trust, were deposited in Mercantile and ultimately paid by the Florida bank.5

10. The supposed endorsements of Whel-chel and Cedarvalley “were forged and did not contain authorized signatures of either Whelchel ... or ... Cedarvalley.”

11. Upon payment of the two cheeks by the Florida bank, Mercantile “made the funds available to one Robert 0. Jones.”6

The first amended petition in case 2182 comprised five counts. Counts I and II pled alternative theories of recovery against SOA for $95,323.60, plus interest. According to the record, the plaintiffs dismissed their claims against SOA on August 1,1989.

In Counts III and IV of the first amended petition, the plaintiffs sought recovery of $95,323.60, plus interest, from Mercantile. Count III alleged Mercantile was negligent in that its “forgery detection methods” were deficient and its employees failed to exercise reasonable care “in paying the ... checks over the ... forged endorsements.” Count IV averred the cheeks “did not belong solely to Jones,” and that by “exercising dominion over [the cheeks, Mercantile] converted the checks to its own use and benefit.”

Count V of the first amended petition asked the trial court to determine the respective interests of Whelchel, Cedarvalley, Future Trust, and the members of the class represented by Howell in the $95,323.60.

The other suit from which this appeal arises was numbered CV188-2183CC in the trial court. This opinion refers to that suit as “case 2183.”

Three plaintiffs instituted case 2183. They are identified in the first amended petition7 as: Carney Funeral Chapel, Inc. (“Carney”); Craig-Hurtt-Hutsell Funeral Home, Inc., doing business as Craig-Hurt1>-Hutsell-Ded-mon Funeral Home (“C-H-H-D”); and Winfred June Gaddis (“Gaddis”). The first amended petition avers Gaddis brings the suit “on behalf of herself and as a class representative on behalf of a class of which she is a member.”

The title of the first amended petition in case 2183 names only three defendants: SOA, Future Trust, and Edwards. The title identifies Mercantile as only a third-party defendant. However, in two counts of the first amended petition, Mercantile is referred to as “Defendant Mercantile” and, as explained infra, those counts seek recovery from Mercantile. Mercantile apparently considered itself a defendant in case 2183, as it filed an answer to the first amended petition.

The allegations of the first amended petition in case 2183 resemble those in ease 2182 with the following exceptions.

1.

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978 S.W.2d 820, 37 U.C.C. Rep. Serv. 2d (West) 22, 1998 Mo. App. LEXIS 1988, 1998 WL 767642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carney-funeral-chapel-inc-v-savings-of-america-inc-moctapp-1998.