Bank of America, N.A. v. DuffBank of America, N.A. v. Duff
I. INTRODUCTION
Ronald Duff d/b/a Ron Duff Video Productions and Jo Duff (collectively, “Defendants”) appeal the judgment of the Circuit Court of Cape Girardeau County in favor of Bank of America, N.A. (“Plaintiff’) on its petition arising out of loans made to Defendants. Defendants argue the trial court erred in: (1) granting summary judgment for Plaintiff because the record did not show Plaintiff was entitled to enforce the loan documents; (2) granting summary judgment for Plaintiff because the record contained no evidence of the amounts Defendants owed on each individual loan; and (3) awarding attorneys’ fees to Plaintiff because the court had no evidence before it of the nature and extent of the legal services provided to Plaintiff. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
The record reveals the following undisputed facts: In April 1998, NationsBank, N.A. loaned money to Ronald Duff d/b/a Ron Duff Video Productions pursuant to a credit line agreement. Jo Duff signed a guaranty of the obligation in favor of Nati-onsBank, N.A. Also in connection with the obligation, Ronald Duff signed an inventory security agreement and an equipment security agreement in favor of Nations-Bank, N.A. (we will refer to the credit line agreement, the guaranty, and the security agreements collectively as the “1998 Loan Documents”). All of the 1998 Loan Documents provide that they are enforceable by NationsBank, N.A. and its successors.
In February 2003, Plaintiff Bank of America, N.A. made a separate loan to Ronald and Jo Duff evidenced by a promissory note. The 2003 note and all of the 1998 Loan Documents required Defendants to pay any attorneys’ fees the lender incurred in connection with enforcing its rights under the documents.
Plaintiff filed a petition against Defendants for breach of the 1998 Loan Documents and the 2003 promissory note.
Defendants filed an answer. In response to the allegation that Plaintiff was the owner and holder of the loan documents, Defendants stated: “Defendants are without knowledge or information sufficient to form a belief as to the allegations ... and therefore deny the same.” Defendants did not file a motion challenging Plaintiffs authority to sue with regard to the 1998 Loan Documents executed in favor of NationsBank, N.A.
Plaintiff filed a motion for summary judgment on its petition. In support of the motion, Plaintiff asserted that it was the successor to NationsBank, N.A. because NationsBank, N.A. changed its name to Bank of America, N.A. The trial court granted the motion and entered judgment in Plaintiffs favor on all counts. The trial court also awarded Plaintiff $9,446.43 for legal fees and costs it incurred in collecting the amounts due under the loan documents.
Defendants filed a “Motion for New Trial, to Set Aside the Judgment, or to Amend the Judgment.” Defendants argued that Plaintiff failed to show it was entitled to judgment as a matter of law because it did not: (1) establish that it was the holder of the notes; or (2) present any evidence supporting an award of attorneys’ fees. The trial court did not rule on the motion for new trial.
III. STANDARD OF REVIEW
We review the entry of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
IV. DISCUSSION
As an initial matter, Plaintiff argues we must dismiss Defendants’ appeal because they failed to preserve their arguments for appellate review. Plaintiff asserts that Defendants’ only attempt below to raise the arguments presented on appeal was in their motion for new trial, which Plaintiff claims was untimely.
In a court-tried case,
In Defendants’ motion for new trial, they argued that Plaintiff failed to show it was entitled to judgment as a matter of law because it did not: (1) establish that it was the holder of the notes; or (2) present any evidence supporting an award of attorneys’ fees. Defendants raise these arguments in Points I and III on appeal. In determining whether the motion for new trial was timely filed and Defendants preserved these arguments for our review, we review the record.
“The filing of pleadings and other papers with the court as required by Rules 41 through 101 shall be made by filing them with the clerk of the court....” Rule 43.02(b). “[I]n the administration of the courts, a motion is considered filed when delivered to the proper officer and lodged in his office.” Martin, Malec & Leopold, P.C. v. Denen,
The parties agree that Defendants’ motion for new trial was due on February 4, 2013. Although the docket sheet and Defendants’ notice of appeal state the motion was filed on February 5, 2013, the motion is file-stamped February 4, 2013. Since the file stamp shows the motion was filed on the date it was due, we conclude that Defendants’ motion for new trial was timely. As a result, Defendants properly preserved their arguments in Points I and III.
However, after reviewing the record on appeal, we find no evidence that Defendants raised in the trial court the argument they now present in Point II. In Point II, Defendants argue the trial court erred in granting summary judgment for Plaintiff because the record contained no evidence of the specific amounts Defendants owed on each individual loan. Because Defendants never presented this issue to the trial court for its consideration, Defendants failed to preserve Point II for appellate review. “Although we may review an unpreserved claim for plain error, we rarely review for plain error in civil cases.” Bowman v. Prinster,
In their first point on appeal, Defendants assert the trial court erred in granting summary judgment in Plaintiffs favor because the record did not show that Plaintiff was the holder of the 1998 Loan Documents and therefore entitled to enforce them. We disagree.
NationsBank, N.A. was the lender named in all of the 1998 Loan Documents. However, all of the 1998 Loan Documents provide that they are enforceable by Nati-onsBank, N.A. and its successors. In support of its motion for summary judgment, Plaintiff asserted that it was the successor to NationsBank, N.A. because Nations-Bank, N.A. changed its name to Bank of America, N.A.
Defendants’ argument that Plaintiff was not entitled to file suit in its own name raises an issue of Plaintiffs capacity to sue. See Unifund CCR Partners v. Kinnamon,
“[A] claim that a suit should have been filed in the name of a certain entity is waived if it is not raised by pleading or motion in accordance with Rules 55.13 and 55.27(g)(1)(E).” Cornejo v. Crawford County,
Here, Plaintiff alleged in its petition that it was the owner and holder of the 1998 Loan Documents. In their answer, Defendants responded to that allegation by stating: “Defendants are without knowledge or information sufficient to form a belief as to the allegations ... and therefore deny the same.” A denial based on insufficient knowledge or information does not constitute the “specific negative averment” required to raise a capacity issue under Rule 55.13. Sw. Bell Tel. Co. v. Ahrens Contracting, Inc.,
In their third point on appeal, Defendants contend the trial court erred in awarding attorneys’ fees to Plaintiff because the court had no evidence before it concerning the nature and extent of the legal services provided to Plaintiff. We disagree.
All the loan documents at issue require Defendants to pay any attorneys’ fees Plaintiff incurs in connection with enforcing its rights. “Where a party’s claim to attorney fees is based upon a contract the court must adhere to the terms of the contract and may not go beyond it.” Trimble v. Pracna,
“In the absence of a contrary showing, the trial court is presumed to know the character of the [legal] services rendered in duration, zeal, and ability.” Essex Contracting, Inc. v. Jefferson County,
Here, Defendants argue the trial court erred because it had no evidence before it of the amount of attorneys’ fees Plaintiff incurred. However, the trial court was acquainted with the case and the issues involved. Therefore, the court was entitled to fix the amount of attorneys’ fees. Defendants have offered no evidence that the court’s award of fees was improper, arbitrary, or so unreasonable as to indicate indifference and a lack of proper judicial consideration. Accordingly, the trial court did not err in awarding attorneys’ fees of $9,446.43 to Plaintiff.
Defendants argue that Plaintiff was required to show the extent of necessary services by counsel and the expense of those services. To support this argument, Defendants rely on Hihn v. Hihn,
y. CONCLUSION
The judgment of the trial court is affirmed.
Notes
. The trial court’s judgment states that Plaintiff voluntarily dismissed a count relating to breach of a September 1997 loan agreement.
. Given the trial court’s failure to rule on the motion within ninety days after Defendants filed it, the motion was deemed overruled for all purposes pursuant to Rule 78.06.
. "For purposes of the rules, a summary judgment proceeding is a trial because it results in a judicial examination and determination of the issues between the parties.” Taylor v. United Parcel Serv., Inc.,