Big v. Vogel
Big v. Vogel
Opinion of the Court
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.
Background
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.
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).
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.
...
11. The Undersigned waives presentment, demand for payment, notice of dishonor or nonpayment, and protest of any instrument evidencing Indebtedness. Lender shall not be required first to resort for payment of the Indebtedness to Borrower or other persons or their properties, or first to enforce, realize upon or exhaust any collateral security for Indebtedness, before enforcing this guaranty.
Thus, according to the terms of the guaranties, Bank could hold Vogel liable regardless of what happened to the collateral properties (paragraph 6), Vogel waived *33any defenses available to Lindworth (including fraud) (paragraph 7), and Bank could collect from Vogel without first seeking payment from Lindworth (paragraph 11).
In September 2010, Bank notified Vogel that no payments on the Lindworth promissory notes had been made and Vogel, as guarantor, needed to make payments. Vogel learned for the first time that no property manager was handling the Arizona properties and no rent was being collected and forwarded to Bank. Vogel hired a property manager to visit the Arizona properties and locate the tenants. The manager reported that many of the properties were vacant and in disrepair, and he made recommendations for what it would take to make the properties rentable. From the manager's report, it was clear that the rental income was not sufficient to service the debt on the Lindworth notes and the balance due on the Lindworth notes far exceeded the value of the Arizona properties. Bank demanded payment from Vogel under the guaranties, but Vogel refused.
Bank subsequently sold the Lindworth promissory notes to Big A,
Lindworth and Vogel appealed the trial court's summary judgment as to only their affirmative defense of fraudulent inducement. This court reversed the summary judgment because § 432.040 applies to only actions and not defenses. Big A LLC v. Lindworth Invs., LLC ,
At trial, Vogel submitted the affirmative defense of fraudulent inducement based on the following misrepresentations: (1) the collateral properties in Arizona were generating rental income, which was being paid directly to Bank, in amounts sufficient to fully service Lindworth's debt (Jury Instruction No. 7); (2) the collateral properties had a collective fair market value in excess of the total amount to be loaned to *34Lindworth (Instruction No. 11); and (3) the promissory notes to be sold to Lindworth were loans which Bank had previously made directly to Eighteen (Instruction No. 13). Vogel also submitted the affirmative defense of fraudulent inducement based on the following non-disclosures: (1) the Eighteen promissory notes that Lindworth was purchasing had previously been bought by Bank from National City Bank (Instruction No. 9); (2) Bank had previously sold the Eighteen promissory notes to pool borrowers (Instruction No. 15); (3) the amounts of the loans to be made to Lindworth would be credited to the accounts of the pool borrowers as to the loans Bank had previously extended to those entities (Instruction No. 17); (4) any rental income generated by the collateral properties was not being credited to the accounts of the pool borrowers (Instruction No. 27); and (5) Bank had obtained appraisals as to the value of the collateral properties (Instruction No. 21). Vogel testified that the prior ownership history of the notes Lindworth was purchasing was important because it raised a question as to why the notes were being sold again. Big A did not offer evidence contradicting Vogel's testimony about Hayes's misrepresentations.
Big A moved for directed verdict at the close of Vogel's evidence and renewed the motion at the close of all the evidence; the trial court denied both motions. At Vogel's request, the trial court submitted to the jury eight separate verdict-directing instructions, one for each alleged fraudulent misrepresentation and non-disclosure. The jury returned verdicts in Vogel's favor on all eight submissions, and the trial court entered its judgment accordingly. Big A filed a timely motion for judgment notwithstanding the verdict, which the trial court denied. This appeal follows.
Standard of Review
"When reviewing a circuit court's overruling of a motion for judgment notwithstanding the verdict, [courts] 'must determine whether the [defendant] presented a submissible case by offering evidence to support every element necessary [for the affirmative defense].' " Newsome v. Kansas City, Mo. Sch. Dist. ,
Analysis
In its only point on appeal, Big A asserts that the trial court erred in denying its motion for judgment notwithstanding the verdict because Vogel failed to make a submissible case on his affirmative defense of fraudulent inducement. Big A argues that, as the guarantor who accepted primary liability for Lindworth's debt, Vogel can reasonably rely on only representations that go to the nature of his obligation under the guaranties; he cannot *35rely on representations not included in the guaranties concerning the condition and value of the collateral properties securing the debt. Big A asserts that, as guarantor, Vogel accepted primary liability for Lindworth's debt regardless of the condition or disposition of the collateral properties and regardless of any attempt to enforce the debt against Lindworth. Big A argues that Vogel never alleged or submitted to the jury any fraudulent misrepresentation concerning his obligations under the guaranties but, instead, alleged fraud as to the representations about the condition and value of the collateral properties, among other things, which were not representations made to Vogel as the guarantor.
To make a submissible case for fraudulent inducement, Vogel needed to present substantial evidence from which the jury could have reasonably found that: (1) Hayes made a false, material representation; (2) Hayes knew the representation was false or he was ignorant of its truth; (3) Hayes intended that Vogel act on the representation in a manner reasonably contemplated; (4) Vogel was ignorant of the falsity of the representation; (5) Vogel relied on the representation's truth; (6) Vogel's reliance was reasonable; and (7) Vogel's reliance on the representation caused injury. Wade ,
We begin our analysis with Big A's claim that, in paragraph 7 of the guaranties, Vogel waived any and all claims of fraud against Bank-"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 Indebtedness"-because, if true, that would end our inquiry. However, "Missouri law ... holds that a party may not, by disclaimer or otherwise, contractually exclude liability for fraud in inducing that contract."
Next, while we agree with Big A that a guaranty is an independent contract for another's undertaking and imposes responsibilities different from those imposed in the underlying debt agreement, Dunn Indus. Group, Inc. v. City of Sugar Creek ,
Construing the promissory notes and guaranties together, there was sufficient evidence on which a reasonable jury could conclude that, in executing the guaranties, Vogel reasonably relied on Hayes's representations about the state and value of the collateral and repayment of the loan. There was evidence that Vogel would not have executed the guaranties, contemporaneous with, and for the benefit of, Lindworth because Lindworth would not have *36executed the underlying notes in the absence of those representations.
In this case, construing the promissory notes and guaranties together is particularly appropriate because Hayes sought Vogel out and encouraged him to participate in the transaction, and Vogel created Lindworth and the Trust in response to those representations. At the meeting in early June when Hayes made the representations on which Vogel bases his affirmative defense, Lindworth did not exist. Hayes pitched the deal directly to Vogel and asked Vogel to provide his personal financial statement, which suggests that the parties' intent at the time was for Vogel to be the borrower in the transaction. Vogel's subsequent decision to establish Lindworth and the Trust for estate planning purposes should not shield Hayes or Bank from the legal consequences of their misrepresentations. Missouri law clearly provides that a borrower can sue a lender for fraudulent inducement or can defend an action, brought by the lender against the borrower, for the same reason. See, e.g., Hamilton v. Massengale ,
In reviewing the trial court's denial of Big A's motion for judgment notwithstanding the verdict, our role is to determine whether Vogel made a submissible case by offering evidence to support his affirmative defense of fraudulent inducement. Newsome ,
On the record before us, we conclude that Vogel made a submissible case on his affirmative defense of fraudulent inducement. Vogel provided detailed testimony about his meeting in early June 2010 with Hayes and Murphy and his subsequent discovery of their fraud. He also provided documents showing that the Arizona properties used to secure the debt purchased by Lindworth and guaranteed by Vogel were worth less than previously represented to him and that none of the rental income from those properties was being paid to Bank to service Lindworth's debt.
On appeal, Big A relies primarily on the Missouri Supreme Court's decision in ITT Commercial Financial Corporation v. Mid-America Marine Supply Corporation ,
With respect to which representations Evert could rely on to avoid liability under the guaranties, the Court stated,
The heart of a contract for guaranty is that the signor has agreed to be liable principally for another's debt. Where a *37guarantor seeks to avoid liability due to representations of the guarantee, those representations must go to the nature of the guarantor's obligation under the guaranty in order to make reliance reasonable; representations concerning the debtor's obligation, and the strength or weakness of the creditor's position, are insufficient.
*38Based on ITT Commercial , Big A argues that the unambiguous language of Vogel's guaranties makes clear that he accepted primary liability for Lindworth's debt. Vogel agreed to be responsible for the debt even if Bank released Lindworth from liability or Bank released, modified, wasted, or lost the collateral. Vogel also agreed that Bank would not be required to pursue repayment from Lindworth or take any action with respect to the collateral before enforcing the guaranties. Because Vogel unambiguously accepted liability without regard to the condition of the collateral, Big A asserts that he cannot now rely on representations about the collateral. According to Big A, Vogel can rely on representations concerning only his obligations under the guaranties, and he failed to allege or submit to the jury a claim of fraudulent inducement with respect to any such representation.
We are not persuaded that ITT Commercial requires us to find that Vogel failed to make a submissible case on his affirmative defense of fraudulent inducement because ITT Commercial is distinguishable from the present case in several respects. First, the representations at issue in the two cases are fundamentally different. Where Evert argued that he could reasonably rely on vague representations that ITT and Mercantile were "fully protected" and would "make sure all the collateral was secure and the payments were made," Vogel submitted evidence of more specific representations, including that the collateral properties in Arizona were generating rental income, which was being paid directly to Bank, in amounts sufficient to fully service Lindworth's debt and that the collateral properties had a collective fair market value in excess of the total amount of the debt. Also unlike the representations made to Evert, which the Court deemed "merely an expression of a present intent to influence future actions of someone not within the plaintiffs' control[,]" representations to Vogel pertained to then-existing circumstances and events within Hayes's knowledge and control.
Second, Evert, unlike Vogel, did not aver that the representations on which he relied were false when made or when, if ever, they became false. ITT Commercial ,
Third, the representations at issue in ITT Commercial were allegedly made to Evert, whose sole role in the transaction was as guarantor. In contrast, when the representations in the present case were made to Vogel, the parties anticipated that Vogel would be the borrower, making it all the more reasonable for Vogel to rely on those representations in deciding to proceed with the transaction.
Finally, Evert's affirmative defense of fraudulent inducement was limited to his May 20, 1987 guaranty in favor of ITT.
For all of these reasons, we find Big A's reliance on ITT Commercial misplaced. Point I is denied.
Conclusion
Because Vogel made a submissible case on his affirmative defense of fraudulent inducement, the trial court did not err in denying Big A's motion for judgment notwithstanding the verdict, and we affirm the trial court's denial of Big A's motion.
Cynthia L. Martin, Judge, and Janette Rodecap, Special Judge, concur.
When reviewing the denial of a motion for judgment notwithstanding the verdict, we view the evidence and all reasonable inferences therefrom in the light most favorable to the jury's verdict. Fleshner v. Pepose Vision Inst., P.C. ,
Big A did not file the appraisals or valuation reports as part of the record on appeal. "As the appellant, it was [Big A's] responsibility to supply us with the record on appeal, which should contain 'all of the record, proceedings, and evidence necessary to the determination of all questions to be presented, by either appellant or respondent.' " Interest of K.R.T. ,
Facts not otherwise attributed to a source are taken from this court's opinion in Big A LLC v. Lindworth Invs., LLC ,
Each guaranty contained the same language and varied only in the identity of the specific promissory note that was guaranteed. Big A included the Lindworth promissory notes and Vogel guaranties in the Legal File.
Although the parties stipulated that Big A is the current holder of the Lindworth notes, Big A does not claim to be a holder in due course. Therefore, Big A concedes that it is subject to any defenses that Lindworth and Vogel could assert against Bank. Big A ,
All statutory references are to the Revised Statutes of Missouri, Cum. Supp. 2010.
Before trial, Big A dismissed its claims against Lindworth without prejudice.
The Court also noted Evert was "an experienced businessman and no stranger to contracts of guaranty." ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp. ,
The Eastern District of this court applied this reasoning in Bohac v. Walsh ,
ITT Commercial cites Colonial Bank v. Ratican ,
[t]he guaranty agreement clearly contained none of these purportedly previously agreed to provisions. There is no allegation that the document signed by Ratican [the guarantor] was in any way altered after his signature, that the contents of the guaranty agreement were in any way concealed from him, that any misrepresentations were made when he signed the agreement of the meaning of its contents, or that he was in any way precluded from examining the document before he signed it. In short, there are no allegations that the document which he actually signed was in any respect misrepresented to him.
However, the Court found that summary judgment in favor of ITT was proper on another, identical guaranty to ITT signed on January 28, 1986, to which Evert's affirmative defense of fraudulent inducement did not apply. ITT Commercial ,
Reference
- Full Case Name
- BIG A LLC v. Paul VOGEL
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- 4 cases
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- Published