Bank of America, N.A. v. Duff, 422 S.W.3d 515

In April 1998 NationsBank, N.A. loaned money to Ronald Duff d/b/a Ron Duff Video Productions with Jo Duff signing a guaranty and Ronald Duff signing related security agreements, all of which are enforceable by NationsBank and its successors.
In February 2003 Bank of America, N.A. made a separate loan to Ronald and Jo Duff, evidenced by a promissory note; the 2003 note and 1998 documents require payment of attorneys’ fees the lender incurs enforcing rights.
Bank of America filed suit for breach of the 1998 documents and the 2003 note, claiming ownership and holder status of the loan documents.
Defendants answered denying knowledge to the ownership claim and did not challenge Plaintiff’s authority to sue regarding the 1998 documents.
The trial court granted summary judgment to Plaintiff, concluding it was successor to NationsBank, and awarded legal fees; Defendants moved for new trial but the court did not rule on that motion.
On appeal, the court held Defendants preserved some arguments but waived others, and ultimately affirmed the judgment awarding Plaintiff fees and enforcement rights.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Plaintiff was entitled to enforce the 1998 loan documents	Plaintiff was successor to NationsBank and entitled to enforce the documents	Plaintiff lacked holder status and authority to sue	Plaintiff entitled to enforce as successor
Whether Defendants preserved all appellate arguments on the 1998 documents and capacity to sue	Defendants preserved enough via timely new-trial motion	Some arguments were not preserved for appeal	Preserved for some; Point II not preserved; Point II denied
Whether the trial court properly awarded attorneys’ fees	Contractual fee provision allows recovery of attorney fees incurred enforcing the loan documents	There was no evidence of the nature and extent of services to support the fee amount	fees awarded; court may determine within contract and without further proof

Unifund CCR Partners v. Kinnamon, 384 S.W.3d 703 (Mo.App.W.D.2012) (capacity to sue challenges must be pleaded; waiver when not raised)
City of Wellston v. SBC Commc’ns, Inc., 203 S.W.3d 189 (Mo. banc 2006) (capacity to sue defined as authority to sue)
Hihn v. Hihn, 237 S.W.3d 607 (Mo.App.E.D.2007) (attorney-fee awards governed by applicable contract provisions, not dissolution statutes)
Trimble v. Pracna, 167 S.W.3d 706 (Mo. banc 2005) (contractual basis for attorney fees; court must adhere to contract terms)
Essex Contracting, Inc. v. Jefferson County, 277 S.W.3d 647 (Mo. banc 2009) (trial court presumed to know the value of services for fee awards)
Taylor v. United Parcel Serv., Inc., 854 S.W.2d 390 (Mo. banc 1993) (summary judgment proceeding treated as a trial for purposes of evidence)
Bowman v. Prinster, 384 S.W.3d 365 (Mo.App.E.D.2012) (plain-error review rarely available in civil cases; preservation requirement)