McCullough v. Commerce Bank, N.A.

368 S.W.3d 296, 2012 WL 2094411, 2012 Mo. App. LEXIS 813
CourtMissouri Court of Appeals
DecidedJune 12, 2012
DocketNo. WD 73219
StatusPublished
Cited by6 cases

This text of 368 S.W.3d 296 (McCullough v. Commerce Bank, N.A.) 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
McCullough v. Commerce Bank, N.A., 368 S.W.3d 296, 2012 WL 2094411, 2012 Mo. App. LEXIS 813 (Mo. Ct. App. 2012).

Opinion

THOMAS H. NEWTON, Presiding Judge.

Mr. George McCullough and Mr. James Cranston appeals the trial court’s denial of their Rule 74.06(b) motion on the ground that the motion was an authorized post-trial motion subject to Rule 81.05(a)(2)’s automatic denial of such motions after 90 days. We reverse and remand.

Factual and Procedural Background

Mr. McCullough and Mr. Cranston (collectively “Appellants”) worked in the Recovery Department of Commerce Bank; Mr. Ron Nesemyer was the Department’s manager. McCullough v. Commerce Bank, 349 S.W.3d 389, 391 (Mo.App. W.D.2011). Mr. McCullough was a Recovery Collector responsible for collecting outstanding unsecured debt from Commerce Bank’s debtors, but only from those accounts identified by a specific code assigned to him. Id. Mr. Cranston was a Repossession Specialist responsible for repossessing, reconditioning, and selling collateral on secured loans; he had the ability to change collector codes, but had no collecting responsibility. Id. Mr. Nesemyer forbade Recovery Collectors to change their assigned codes unless management approved the change, to ensure that any credit for account recovery be given to the assigned collector. Id.

In April 2006, a Recovery Collector told a supervisor, Ms. Deborah Turnbow, that Mr. McCullough had changed a code to receive credit for his account. Id. Ms. Turnbow informed Cranston’s supervisor. Id. An investigation revealed that Mr. McCullough, believing that a certain account should be credited to him, asked Mr. Cranston to change the code to give Mr. McCullough credit rather than the assigned Recovery Collector; Mr. Cranston did so. Id. The investigation also revealed that Mr. McCullough and Mr. Cranston had participated in at least four unauthorized account transfers. Id. at 391-92. They were subsequently terminated. Id. at 391.

[298]*298Thereafter, they received letters from the Missouri Commission on Human Rights authorizing them to sue Commerce Bank for discriminatory practices. Id. at 892. They filed a petition for wrongful termination against Commerce Bank, alleging it terminated Mr. McCullough based on his age and race and terminated Mr. Cranston to conceal the discrimination against Mr. McCullough. Id. at 392.

After a trial, the jury found in favor of Commerce Bank. Id. Appellants filed a motion for new trial under Rules 78.01 and 74.06(b) “because of misrepresentations and misconduct by [Commerce Bank] and [its] counsel.” In their motion, the Appellants argued that, inter alia, Commerce Bank failed to produce Mr. Lamar Cherry’s and Mr. Martin Walker’s personnel files and had the files been produced, they would have supported their case. Mr. Cherry and Mr. Walker are African-Americans. The trial court found that although the information should have been produced before trial, a new trial could not be granted because Appellants failed to meet the Carthen standard.1 Id. at 393. Specifically, the court found that counsel did not demonstrate that by use of due diligence he would not have been able to discover the failure to disclose the files earlier, as counsel had information identifying both Mr. Cherry and Mr. Walker and their terminations came to light during trial. Id. Additionally, counsel did not demonstrate “how this evidence would have affected the outcome of the trial,” as “there was no ... testimony or evidence” of what benefit a timely production of the personnel files would have yielded. Id.

Appellants filed an appeal, challenging, inter alia, the trial court’s application of the newly discovered evidence standard under Rule 78.01 to deny relief on the ground that Commerce Bank failed to produce the personnel files. Id. Appellants argued that the trial court should have instead applied the standard for vacating judgments under Rule 74.06(b) for misconduct, and its failure to do so was error. Id. at 394. We denied the point, noting that Appellants abandoned any arguments that the trial court erroneously applied Carthen, or erroneously applied Rule 78.01. Id. at 394 n. 3. We stated that the argument concerning the failure to apply Rule 74.06 was not raised before the trial court and even if it were adequately preserved, Appellants did not satisfy the standard to be entitled to relief in that they failed to argue Commerce Bank’s behavior was purposeful misconduct or fraudulent. Id. at 395-96. We affirmed the trial court’s decision. Id. at 399.

While the appeal was pending, Appellants contacted Mr. Walker and Mr. Cherry who reported that they voluntarily left because they were dissatisfied with their positions at Commerce Bank and that they had complained to Commerce Bank before leaving about the unfair and inconsistent treatment that had occurred in the Recovery Department under Mr. Nesemyer and Ms. Turnbow (collectively “named management”). Mr. Cherry and Mr. Walker also reported that another African-American, Mr. Jamial Black,2 had experienced mistreatment, and left Commerce Bank as a result. Mr. Black reported that he told a Human Resource person that he experienced racial discrimination. Appellants filed a motion under Rule 74.06(b) for relief from the judgment, additional discov[299]*299ery, and a new trial. In that motion, they alleged that Commerce Bank committed fraud by “affirmatively leadfing] ... counsel away from evidence which would have supported [their] discrimination claims[] and ... Mr. Black’s personnel file and the complaints he made were never disclosed.”

In an attempt to defeat the claim of fraud, Commerce Bank produced documents showing complaints made by Mr. Cherry, Mr. Walker, and Mr. Black did not allege racial discrimination, but rather alleged inconsistent and unfair treatment by the named management. Appellants used the information to build their claim of fraud, arguing that Commerce Bank should have produced the exit interviews pursuant to different discovery requests asking for complaints made against the named management.

The trial court granted a hearing on the motion. At the hearing, Commerce Bank argued that the trial court lacked jurisdiction to hear the motion. After the hearing, the trial court denied the motion, expressing its regret for abusing its discretion in its previous ruling, but finding that it lacked authority to grant relief because according to Rule 81.05(a)(2), the motion was deemed denied.3 Appellants appeal.

Standard of Review

We review a denial of an independent Rule 74.06(b) motion for an abuse of discretion. In re Marriage of Hendrix, 183 S.W.3d 582, 587 (Mo. banc 2006). “An abuse of discretion occurs when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.” Id. “If reasonable persons can differ as to the propriety of the trial court’s action, then it cannot be said that the trial court abused its discretion.” Id. (internal quotation marks and citation omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
368 S.W.3d 296, 2012 WL 2094411, 2012 Mo. App. LEXIS 813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccullough-v-commerce-bank-na-moctapp-2012.