Pulaski Bank v. C.W. Holdings, LLC ( 2016 )

In the Missout'i Com't of Appeals
Eastern District
DIVISION FOUR
PULASKI BANK, ) No. EDl02563
)
Respondent, ) Appeal front the Circuit Court
) of St. Louis County
vs. )
)
C.W. HOLDINGS, LLC, et al., ) Hon. Robert Cohen
)
Appellalits. ) FILED: l\/Iay 3, 2016
Introdttction
Appellants C.W. Holdillgs, LLC, Martin Warenburg, individually and as Trustee of the
Martin Warenburg Trust, Octavio Chiriito, and Anne Chiririo, (<:ollectively referred to as " the
C.W. defendants°’) appeal from the judgment of the trial court granting summaryjlldgineiit in
favor of Respondent PiilaslBancor;_)$otttli, 349 S.W.3d at
366 ("Here, the trial court found that the absence of an agreement which complied with the
provisions of Section 432.047 was ‘fatal’ to Paraxnoiit’s defense of equitable estoppel, as well as
to their other defenses and counterclaims [T]his conclusion was correct.").
Accordingly, Pu|aski was entitled to judgment as a inatter of law with respect to the C.W.
defendants’ counterclaim for lulling. The trial court did not err in gratiting summary judgment in
favor of Piilaski. Point denied.
Conciusion
The judgment of the trial court is aflirined.
Sherri B. Stlllivali, P.J., concurs.
Lisa P. Page, J., concurs.
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Pulaski attached copies of Note One, Note Two, the Gtlaranties, and the June 5, 2012,
notices of default to the Petition as exhibits. The C.W. defendants subsequently filed an Aiiswei'
on September 24, 2(}}2.
II. The C.W. Defemlants’ Cotlilterclaiiil
On Febrttary 14, 2014, the C.W. defendants filed a Cottnter-Petition asserting a
counterclaim fo1' lulling against Pulaski. The C.W. defendants alleged that "on several occasions
Pulaski Bank gave all counterclaim plaintiffs signs that they intended to ‘work with’ the
counterclaiin plaintiffs instead of foreclosing on them." The C.W. defendants further alleged
that "on two occasions, Pulaski Bank asked for significant sums of money to redo and extend the
loans in question." The C.W. defendants alleged that "[t]llese representations lulled the [C.W.
defendants} into believing that Pulaski Bank would continue to keep them in the loans and allow
them time to dispose of the property in a rnuttlally agreeable inanner," and that they "relied on
these actions by Pulaski Bank." Pulaski did not file an answer to the C.W. defendants’
counterclaim.
III. Pulaski’s Motion for Suminary Jucignient
On May 2, 2014, Pulaski filed a motion for sunnnary judgment seeking summary
judgment on each of the three counts asserted in its Petition as well as sunnnaryjttdgliietit in its
favor on the C.W. defendants’ counterclaim for lulling. With respect to the C.W. defendants’
counterclaim,l Pulaski alleged that there were no genuine issues of rnaterial fact and that Pulaski
was entitled tojudginent as a matter of iaw. Specitically, Pulaski argued that the C.W.
defendants’ cottnterclaiin for lulling was barred as a inatter of law by l\/lissotlri’s commerciai
l On appeal, the only issue for our resolution concerns whether Pulaski’s failure to answer the C.W. defendants’
_ cottnterclailt\ for lulling prevented the trial court from properly entering summalyjudglltent in Pulaski’s favor. Our
decision does not require us to review, nor do the C.\V. defendants ask us to review, the propriety of the trial court‘s
entry of summary judgment with respect to the three counts assened by Pulaski. Thus, an extended recitation of the
facts regarding those claims and the trial court``s findings regarding those claims is not iiecessary.
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credit agreement statute of frauds provision, Section 432.047. Pulaski noted that the C.W.
defendants’ counterclaim contained no reference to any written agreement between the parties
59 45
affirming Puiaski’s alleged “signs, actions," or "represeiitatioiis." Pulaski contended that
under the terms of the Notes and under Missotlri law, the absence of such a writing was "fatal" to
the C.W. defendants’ counterclaims
Tlte C.W. defendants subsequently filed a response to Pulasl349 S.W.3d 363, 367 (Mo. App.
E.D. 201 l). Specitically, Section 432.047 states that “[a] debtor party may not maintain an
action upon or a defense, regardless of legal theory in which it is based, in any way related to a
credit agreement unless the credit agreement is in \vritiiig."
Here, the C.W. defendants based their cottnterclaint for lulling upon alleged "signs,"
"actions," and "represeritatioiis" that Pulaski made a "false promise" to "work \vith" them on
modifying the Notes rather than foreclosing The C.W. defendants never alleged or provided
evidence that any such alleged false promises were contained in a written credit agreement (or in
any written document at ail) in coinpliance with the provisions of Section 432.047. As the trial
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