Mark Geran v. Xerox Education Services, Inc. ( 2015 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
MARK GERAN, )
)
Appellant, )
)
vs. ) WD77507
)
XEROX EDUCATION SERVICES, ) Opinion filed: May 19, 2015
INC., )
)
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
THE HONORABLE ROBERT M. SCHIEBER, JUDGE
Before Division Two: Lisa White Hardwick, Presiding Judge,
Victor C. Howard, Judge and Cynthia L. Martin, Judge
Mark Geran appeals from the summary judgment in favor of Xerox Education Services,
Inc. (XES), a loan servicer, in his suit for damages for violations of the Missouri Merchandising
Practices Act and for intentional infliction of emotional distress. The judgment is affirmed.
Factual and Procedural Background
Mr. Geran took out various student loans with Norwest Bank for his law school education
between 1997 and 2000, and Wells Fargo Education Financial Services became the holder of the
promissory notes relating to those loans. In 2005, Mr. Geran applied for and entered into an
agreement with Wells Fargo to consolidate all of his student loans and executed a Promissory
Note in favor of Wells Fargo promising to repay that consolidated loan. Mr. Geran applied for
an income sensitive repayment plan but was placed on a graduated repayment plan that provided
for interest only payments for one-third of the repayment period and a level monthly payment for
the remaining two-thirds of the repayment period. On March 18, 2005, Wells Fargo mailed Mr.
Geran a Disclosure Statement and Repayment Schedule for the consolidated loan. It showed that
the consolidated loan consisted of two accounts for subsidized and unsubsidized portions and set
out the specific repayment plan—100 payments of $160.41/month total for both accounts
beginning April 2005 and then the remaining 200 payments of $345.55/month beginning in
August 2013. The Promissory Note provided that terms of the Disclosure Statement and
Repayment Schedule were made part of the loan:
At or about the time my Federal Consolidated Loan is disbursed, a disclosure
statement and repayment schedule (“disclosure”) will be provided to me. This
disclosure will identify my Federal Consolidated Loan amount and additional
terms of the loan….If the information in this Note conflicts with information in
the disclosure, the specific terms and information in the disclosure apply to my
loan.
Similarly, the Disclosure Statement and Repayment Schedule provided, “This document will
become an attachment to, and a part of, your Consolidated Loan Application/Promissory Note.
Mr. Geran had the ability at any time under the Promissory Note and the Disclosure Statement
and Repayment Schedule to request a change in his repayment plan, but Wells Fargo was not
obligated to grant such request. Specifically, the Disclosure Statement and Repayment Schedule
provided, “You must repay your loan according to the scheduled payments described below,
unless the lender of your Consolidated Loan agrees to other terms.” Additionally, the
Promissory Note provided that the lender “may allow” a forbearance (temporary delayed or
reduced loan payments) if the borrower is unable to make scheduled loan payments.
In 2011, Wells Fargo contracted with ACS Education Services, Inc. (ACS), which was
later acquired by XES in 2012, to service Mr. Geran’s consolidated loan. On March 23, 2011,
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ACS sent Mr. Geran a letter informing him that it could not accommodate the graduated payment
plan that he was on with Wells Fargo and gave him an option to request a graduated plan offered
by ACS or be placed on level payments. Specifically, the letter provided:
ACS has determined that your account(s) was approved for a graduated
repayment plan while being serviced by Wells Fargo Education Financial
Services. While ACS offers graduated repayment plans, we cannot accommodate
the identical plan you previously selected at Wells Fargo Education Financial
Services. We do offer a similar plan with a tiered repayment schedule where the
payment amount gradually increases every 24 months. If you would like to
choose this repayment plan, please complete the bottom portion of this letter and
send the entire letter to the following address by 5/22/2011….
It was undisputed that Mr. Geran called ACS on May 23, 2011, regarding the repayment plan
change. Mr. Geran alleged that the customer service representative estimated that his monthly
payment amount under the new tiered repayment schedule would be $154.81 within plus/minus
ten percent. ACS admitted that the customer service representative provided Mr. Geran with an
estimate but denied the amount. It also presented documents showing that Mr. Geran requested
information on his debt and interest rate, requested to be placed on ACS’s tiered repayment
schedule, and was told to put his request in writing during the phone call. That day, Mr. Geran
returned by fax and mail the March 23, 2011 letter requesting to be placed on ACS’s tiered
repayment plan. The request was signed by Mr. Geran on May 22, 2011.
On April 9, 2011, ACS received a copy of Mr. Geran’s Promissory Note and became
aware that the specific terms of the repayment plans were set out in the form Promissory Note
while most other lenders would only list the generic graduated payment definition.
Consequently, ACS and Wells Fargo decided that ACS needed to change its system to
accommodate the repayment plans set out in the Promissory Note. Wells Fargo and ACS entered
into a change order in this regard dated July 14, 2011.
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In the meantime, in June 2011, ACS sent Mr. Geran two Loan Consolidation Disclosure
Statement and Repayment Schedules for the two accounts under the consolidated loan. They set
out the specific repayment plans under the new ACS tiered repayment plan. The first payment
beginning June 28, 2011, for both accounts of the consolidated loan was $204.03 ($93.02 for
subsidized part plus $111.01 for unsubsidized part) and increased as follows: $244.96/month
beginning June 28, 2013; $294.09/month beginning June 28, 2015; $353.07/month beginning
June 28, 2017; $423.89/month beginning June 28, 2019; $508.91/month beginning June 28,
2021; $610.99/month beginning June 28, 2023; and a single final payment of $552.99 due on
March 28, 2025.
ACS had sent out a billing statement under the prior graduated repayment plan dated May
31, 2011, for the June 28 payment due of $160.41. Thereafter, it sent Mr. Geran two new billing
statements dated June 7, 2011, one for each account under the consolidated loan, for a new total
of $204.03 due on June 28, 2011. Mr. Geran sent ACS a payment of $180 on June 28, 2011. On
July 10, 2011, ACS sent Mr. Geran a past due reminder. Mr. Geran sent ACS a payment of
approximately $160 on July 23, 2011. On July 31, 2011, ACS sent Mr. Geran a delinquency
notice assessing late charges.
Mr. Geran phoned ACS on August 10, 2011, to inquire about his account and the
delinquent status. A few days later on August 16, 2011, Mr. Geran sent a letter to ACS disputing
the delinquency on his loan and further disputing the “current monthly payment amount
scheduled by lender/holder.” Mr. Geran complained that “ACS breached the existing agreement
between the previous lender, Wells Fargo, and myself by stating an intention to modify the
existing agreement;” “ACS failed to properly apply payments made to lender/holder in
accordance with statements received by debtor;” and “ACS is [sic] represented that payment
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amounts that would result from enrolling in its graduated repayment plan, and that ACS had the
right to change payments if debtor did not enroll in the graduated repayment plan.” On August
19, 2011, ACS received and credited a payment of $228.89 that brought Mr. Geran’s loan
current and resolved the deficiency. Thereafter, ACS notified Mr. Geran that the late charges
were reversed.
ACS responded by letter to Mr. Geran’s written complaint on September 1, 2011. It
explained that the new monthly payment effective June 28, 2011, was $204.03 and that it
received from him a payment of $180 on June 26, 2011, which resulted in his account being past
due and the assessment of a late charge. The letter further advised, “If you would like to be
placed on the prior services payment plan you can submit your request and it will be taken under
consideration.” Mr. Geran did not request to be placed back on this initial graduated repayment
plan and made payments under the new ACS tiered repayment plan for the next year and a half
through April 2013.
On March 14, 2013, Mr. Geran filed his petition in this matter against XES, which
acquired ACS in April 2012. Count I through VI alleged violations of the MMPA. Specifically,
Mr. Geran alleged: (1) ACS’s Misrepresentation of Right and Authority to Modify Plaintiff’s
Repayment Obligation and Statement of Coercion (Count I); (2) ACS’s Misrepresentation of
Eligibility to Remain on Existing Agreement and Monthly Payment Amount under ACS’s
Graduated Repayment Plan (Count II); (3) ACS’s Fraudulent Billing and Requiring of Plaintiff
to Make Payments of Amounts in Excess of ACS’s Representations and Plaintiff’s Federal
Consolidation Loan Disclosure Statement and Repayment Schedule (Count III); (4) ACS’s
Scheme of Deceptive, Confusing and Misleading Billing Statements and Design to Create
Delinquency of Plaintiff’s Account (Count IV); (5) ACS’s Unlawful Assessment of Late Fees
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(Count V); and (6) Unfair Application of Payment Amounts Received by ACS (Count VI).
In Count VII for defamation/libel, Mr. Geran alleged that ACS published and
communicated defamatory information about his account to third parties.
In Count VIII for intentional infliction of emotional distress, Mr. Geran alleged that ACS
acted in an intentional manner and or intended to cause him to suffer severe emotional distress in
asserting its right to modify the repayment schedule and in refusing to adequately address his
complaints by telephone and letter and his consumer complaint filed with the Missouri Attorney
General’s officer. He further alleged that ACS’s conduct proximately caused him substantial
anxiety, depression, embarrassment, frustration, and humiliation in relation to credit reporting,
reputation, and standing; exacerbation of his preexisting condition and symptoms of post
traumatic stress disorder, anxiety disorder, and depression; and substantial financial hardship,
anxiety, depression, frustration, and physical harm and discomfort related to his diminished
ability to meet household and utility expenses.
XES filed a motion for summary judgment arguing that Mr. Geran’s six counts for
violation of the MMPA failed to state a claim against it because it is a loan servicer, was a
stranger to Mr. Geran’s 2005 loan transaction with Wells Fargo, did not sell any goods or
services to Mr. Geran, and there was no sales transaction between it and Mr. Geran. In making
this argument, XES relied on State ex rel. Koster v. Portfolio Recovery Assocs., LLC, 351
S.W.3d 661 (Mo. App. E.D. 2011), and other federal decisions following it. In Koster, the
Eastern District upheld the dismissal of MMPA claims against a third-party debt collector who
was not a party to the original consumer transaction. Id. at 668. It held that “actions occurring
after the initial sales transaction, which do not relate to any claims or representations made
before or at the time of the initial sales transaction, and which are taken by a person who is not a
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party to the initial sales transaction,” are not made “in connection with” the sale as required by
the MMPA. Id. at 667.
XES further argued that it was entitled to summary judgment on Mr. Geran’s
defamation/libel claim because it did not publish the statements alleged to be defamatory to any
third party. Finally, XES argued that it was entitled to summary judgment on the intentional
infliction of emotional distress claim because (1) Mr. Geran’s claims were limited to contract
under the terms of the Promissory Note with Wells Fargo, and tort claims were barred pursuant
to the economic loss doctrine, and (2) Mr. Geran could not prove that ACS’s conduct was
extreme and outrageous or that the conduct was done solely to inflict extreme emotional harm on
him.
Mr. Geran filed a response to the motion for summary judgment and a statement of
additional material facts that remained in dispute. It argued that Koster was distinguishable and
inapplicable to this case and that the March 2011 change of the repayment schedule constituted a
new sale covered under the MMPA.
The trial court granted XES’s motion for summary judgment and entered judgment in its
favor on all of Mr. Geran’s claims. This appeal by Mr. Geran followed.
Standard of Review
Appellate review of the grant of summary judgment is de novo. ITT Commercial Fin.
Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary
judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no
genuine issues of material fact exist. Id. at 377. The record is reviewed in the light most
favorable to the party against whom judgment was entered, according that party all reasonable
inferences that may be drawn from the record. Id. at 376. Facts contained in affidavits or
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otherwise in support of a party’s motion are accepted as true unless contradicted by the non-
moving party's response to the summary judgment motion. Id.
A defending party may establish a right to judgment as a matter of law by showing any
one of the following: (1) facts that negate any one of the elements of the claimant’s cause of
action, (2) the non-movant, after an adequate period of discovery, has not and will not be able to
produce evidence sufficient to allow the trier of fact to find the existence of any one of the
claimant’s elements, or (3) there is no genuine dispute as to the existence of each of the facts
necessary to support the movant’s properly-pleaded affirmative defense. Id. at 381.
Once the movant has established a right to judgment as a matter of law, the non-movant
must demonstrate that one or more of the material facts asserted by the movant as not in dispute
is, in fact, genuinely disputed. Id. The non-moving party may not rely on mere allegations and
denials of the pleadings, but must use affidavits, depositions, answers to interrogatories, or
admissions on file to demonstrate the existence of a genuine issue for trial. Id.
MMPA Claims
In his first point on appeal, Mr. Geran contends that the trial court erred in granting
XES’s motion for summary judgment on his MMPA claims. He asserts that the summary
judgment in favor of XES was in contravention to the recent Missouri Supreme Court case,
Conway v. CitiMortgage, Inc., 438 S.W.3d 410 (Mo. banc 2014), which abrogated the Koster
case relied on by XES in its motion for summary judgment. He further asserts XES was not
entitled to judgment as a matter of law and genuine issues of material fact existed because the
2011 change of the repayment schedule constituted a new sale bringing his claims under the
MMPA.
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The MMPA makes unlawful “[t]he act, use or employment…of any deception, fraud,
false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression,
or omission of any material fact in connection with the sale or advertisement of any merchandise
in trade or commerce.” § 407.020, RSMo Cum. Supp. 2013. After summary judgment was
entered in this case and during the pendency of this appeal, the Missouri Supreme Court issued
two opinions that considered when an act by a loan service provider, who was not a party to the
initial loan transaction, is “in connection with” a sale so as to be actionable under the MMPA.
See Conway, 438 S.W.3d 410, and Watson v. Wells Fargo Home Mortg., Inc., 438 S.W.3d 404
(Mo. banc 2014). Generally, a change in the law by judicial decision is to be given retroactive
effect. Sumners v. Sumners, 701 S.W.2d 720, 723 (Mo. banc 1985). “[I]f, subsequent to the
judgment, and before the decision of the appellate court, a law intervenes and positively changes
the rule which governs, the law must be obeyed, or its obligation denied.” Id. (internal quotes
and citation omitted). Two exceptions exist to the general rule of retroactivity. “The first
exception is found when the change pertains to procedural as opposed to substantive law.” Id.
“The second exception turns on the issue of fundamental fairness and is often expressed as a
question of reliance.” Id. “If the parties have relied on the state of the decisional law as it
existed prior to the change, courts may apply the law prospectively-only in order to avoid
injustice and unfairness.” Id. Neither exception applies in this case, therefore, Conway and
Watson are given retroactive effect here.
In Conway, homeowner plaintiffs appealed the dismissal of their MMPA claim against
the defendants, the assignee of the mortgage loan and the loan servicer, for wrongful foreclosure
of a deed of trust. 438 S.W.3d at 412. The Missouri Supreme Court considered the meaning of
the statutory phrase “in connection with” and the purpose of the MMPA and reversed. Id. at 414.
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It first explained that “a loan is an agreed upon bundle of services being ‘sold’ by the lender to
the borrower.” 438 S.W.3d at 412. “It creates a long-term relationship in which the borrower
and the lender continue to perform various duties, such as making and collecting payments over
an extended period of time.” Id. at 415. Because of these continuing duties, the sale of a loan
“continues throughout the time the parties perform their duties.” Id. “A party’s right to collect a
loan is part of that sale and is, therefore, ‘in connection with’ the loan.” Id.
Next, the Court explained that because the MMPA was enacted to supplement the
common law definition of fraud, no compelling reason existed to interpret “in connection with”
to apply only when the entity engaged in the misconduct was a party at the time the transaction
was initiated as required by Koster. Id. “[L]oan collection procedures, whether initiated by a
loan originator or a loan servicer, are done ‘in connection with’ the original procurement of the
loan.” Id. at 416. Thus, the Court determined that homeowners sufficiently pleaded a claim
under the MMPA because the defendants’ alleged actions were “in connection with” the original
loan. Id. at 417.
In Watson, decided the same day, the plaintiff alleged that the defendant loan servicer
violated the MMPA in two ways—by wrongfully foreclosing on the deed of trust and by
engaging in bad faith negotiations of a loan modification. 438 S.W.3d at 406. The trial court
granted summary judgment in favor of the loan servicer. Id. With respect to the wrongful
foreclosure allegations, the Missouri Supreme Court reversed following the analysis of Conway.
Id. at 407. As to the bad faith negotiation claim, the Court affirmed the summary judgment
finding that the loan servicer’s actions in that regard were not “in connection with” the sale of
the original loan. Id. at 408. It explained that the loan modification negotiations were not “a
service the lender agreed to sell or the borrower agreed to buy when the parties agreed to the
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loan.” Id. “[T]he extent of [the bundle of services included in a loan] is fixed at the outset when
the parties agree to the terms of the loan.” Id. Because the deed of trust executed in the original
transaction specifically stated that there was no obligation to engage in renegotiations, the loan
servicer was not enforcing the terms of the loan in engaging in loan modification negotiations
but rather contemplating creating a new agreement. Id. Importantly, the Court noted that the
plaintiff had not argued at the trial court, and therefore the Court did not consider, whether the
loan modification negotiations constituted a separate sale under the MMPA and that the loan
servicers actions were “in connection with” the negotiations. Id. at 407 n.2. It suggested that
after remand, the plaintiff may seek leave to file an amended petition that includes such claims.
Id.
As in Watson, the renegotiation of the terms of repayment and the modification of the
repayment schedule were not services the lender agreed to sell or the borrower agreed to buy
when the parties agreed to the 2005 consolidated loan. While under the terms of the Promissory
Note and the Disclosure Statement and Repayment Schedule, a borrower could request a new
repayment plan, the lender was not obligated to grant such request. Modification of the
repayment schedule was not included in the bundle of services of the 2005 loan. As such, ACS
was not enforcing the terms of that loan in modifying the repayment schedule and thus ACS’s
actions surrounding the modification of the repayment schedule were not “in connection with”
the consolidated loan. See Wivell v. Wells Fargo Bank, N.A., 773 F.3d 887, 899, 899 n.2 (8th Cir.
2014)(dismissal of MMPA claims based on lender’s alleged false statements with respect to the
availability of a loan modification upheld where lender’s conduct surrounding loan modification
was not “in connection with” a sale because loan did not obligate the lender to negotiate or agree
to a loan modification). Compare May v. Nationstar Mortg., LLC, 2014 WL 6607191 (E.D. Mo.
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2014)(loan servicer’s motion to dismiss two MMPA counts denied where plaintiff’s claims were
not based on any conduct by defendant arising out of an unsuccessful loan modification effort
but instead challenged the defendant’s servicing of the original loan).
Mr. Geran argues that the March 2011 change of the repayment schedule constituted a
new sale covered under the MMPA. Mr. Geran made this argument in his response to XES’s
motion for summary judgment and set forth additional facts on the issue that he claimed
remained in dispute. However, his argument in the response was cursory, and his uncontroverted
facts on the issue were legal conclusions. Legal conclusions set forth as uncontroverted facts in
summary judgment pleadings are not binding on the other party or the court. Village of Big Lake
v. BNSF R. Co., 433 S.W.3d 460, 463 n. 3 (Mo. App. W.D. 2014). Furthermore, his petition did
not allege that the change of the repayment schedule was a separate sale. The role of the
pleadings is crucial to the adjudication of a valid summary judgment, as to any other judgment
on the merits. Coleman v. City of Kansas City, 859 S.W.2d 141, 147 (Mo. App. W.D. 1993).
“Pleadings define the issues and form the foundation of the process of adjudication and
judgment.” Id. In this case, the petition alleged misrepresentation and fraud by ACS
surrounding the modification of the repayment schedule of the 2005 consolidated loan. The
alleged unfair practices included ACS’s misrepresentations regarding its authority under the loan
to modify the repayment schedule, Mr. Geran’s inability to remain on the original repayment
schedule, and the new monthly payment, which led to Mr. Geran’s enrollment in ACS’s tiered
repayment plan. The petition further alleged fraud and deception in ACS’s billing, assessment of
late fees, and how payments were applied to the loan under the new repayment schedule. The
petition did not allege that ACS’s conduct occurred in connection with a new sale. Accordingly,
the trial court was not in a position to consider the new sale claim. Likewise, although able
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appellate counsel did an excellent job arguing the claim on appeal, this theory has not been
preserved for consideration by this court. See Hibbs v. Berger, 430 S.W.3d 296, 320-21 (Mo.
App. E.D. 2014)(plaintiff could not base civil conspiracy claim on two new independent causes
of action not pleaded in his petition and only mentioned in his response to defendant’s motion for
summary judgment). See also Wivell, 773 F.3d at 899 n.2 (plaintiff’s alternative argument that
the loan modification was a separate sale under the MMPA not addressed where complaint only
alleged that lender’s actions occurred “in connection with the servicing of the…mortgage”);
Groh v. JPMorgan Chase Bank, N.A., 2015 WL 58461 (W.D. Mo. 2015)(dismissal of MMPA
claim based on lenders’ failure to timely finalize loan modification agreement was upheld where
allegations did not relate to any acts or omissions connected with original loan and amended
petition did not allege a separate sale). The trial court did not err in entering summary judgment
in favor of XES on Mr. Geran’s claims for violation of the MMPA. Point denied.
Intentional Infliction of Emotional Distress Claim
In his second and third points on appeal, Mr. Geran contends that the trial court erred in
granting XES’s motion for summary judgment on his claim for intentional infliction of
emotional distress. In this count, Mr. Geran alleged that ACS’s conduct in asserting its right to
modify the repayment schedule and in refusing to adequately address his complaints was
extreme, outrageous, intentional, and intended to cause him to suffer severe emotional distress.
XES raised several grounds to support its motion for summary judgment on this claim, and Mr.
Geran’s two points challenge all of those grounds. The trial court granted summary judgment on
this claim without explanation. Where the trial court grants summary judgment without
specifying the basis for its order, it is presumed that the trial court based its decision on grounds
specified in the motion for summary judgment. Central Mo. Elec. Co-op. v. Balke, 119 S.W.3d
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627, 635 (Mo. App. W.D. 2003). An appellate court will affirm the grant of summary judgment
if it could have been based on any theory raised in the motion and supported by the summary
judgment record. East Attucks Cmty. Housing, Inc. v. Old Republic Sur. Co., 114 S.W.3d 311,
324 (Mo. App. W.D. 2003).
To recover for intentional infliction of emotional distress, a plaintiff must show (1) the
defendant’s conduct was extreme and outrageous; (2) the defendant acted intentionally or
recklessly; and (3) the defendant’s conduct caused extreme emotional distress resulting in bodily
harm. Balke, 119 S.W.3d at 636. Additionally, the plaintiff must demonstrate that the sole intent
in acting was to cause emotional distress. Id. “Where a desire to cause severe emotional harm is
not the sole motivation for the conduct alleged,…suit cannot be brought for intentional infliction
of emotional distress.” Thomas v. Special Olympics Mo., Inc., 31 S.W.3d 442, 448 (Mo. App.
W.D. 2000).
One of the grounds under which XES sought summary judgment was that Mr. Geran
could not prove that ACS’s sole motivation for its conduct surrounding the change of the
repayment plan was to cause Mr. Geran emotional distress. In support of its motion for summary
judgment and of its reply in support of its motion for summary judgment, XES offered two
affidavits of Jamie Broedel, a member of the company’s Financial Services Group and the
corporate representative of XES. Mr. Broedel stated that, in sending the March 23, 2011 letter
regarding changing Mr. Geran’s repayment plan, ACS was simply processing the transfer of Mr.
Geran’s loan and was not intending any emotional harm to him. He also stated that ACS was
servicing Mr. Geran’s loan pursuant to its belief that it had the ability and right on behalf of
Wells Fargo to modify the repayment plan. Mr. Broedel further stated that ACS received a copy
of Mr. Geran’s Promissory Note on April 9, 2011. XES also presented documents showing that
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after receiving the Promissory Note, ACS learned that the Promissory Note listed specific
repayment plans while most other lenders would only list the generic graduated payment
definition. Consequently, ACS determined that it needed to create the repayment plans in the
Promissory Note, and ACS and Wells Fargo entered into a change order in July 2011 to do so.
Mr. Geran offered no evidence that disputed these facts or disproved XES’s claim that, at the
time of the modification to the repayment plan, ACS believed it had authority to change the
repayment plan. The uncontradicted evidence indicated that ACS had a legitimate business
purpose for its conduct surrounding the repayment modification. Mr. Geran could not establish
that ACS acted with the sole motivation to cause emotional distress. See Balke, 119 S.W.3d at
636-38, and Thomas, 31 S.W.3d at 447-49 (where defendants set forth evidence that their actions
were driven at least partially by legitimate reasons, and plaintiffs failed to contravene that
evidence, plaintiffs failed to establish that defendants acted with the sole motivation to cause
emotional distress, and summary judgments in favor of defendants were proper). The trial court
did not err in entering summary judgment in favor of XES on the claim for intentional infliction
of emotional distress. The points are denied.
The judgment is affirmed.1
__________________________________________
VICTOR C. HOWARD, JUDGE
All concur.
1
Mr. Geran filed a contingent motion for attorney’s fees on appeal under section 407.025.1, RSMo Cum. Supp.
2013, and the motion was taken with the case. Mr. Geran sought attorney’s fees on appeal contingent upon his
successfully winning the case on appeal and at trial. Under section 407.025.1, the MMPA authorizes a court to
“award to the prevailing party attorney’s fees, based on the amount of time reasonably expended.” Id. “However,
the statutory authorization of such attorney’s fees award under the MMPA is conditioned upon the plaintiff
prevailing in establishing actual damages under the MMPA.” Agnello v. Walker, 306 S.W.3d 666, 679 (Mo. App.
W.D. 2010). Mr. Geran does not prevail on this appeal; the motion is denied.
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