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No. 95-3515
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Enterprise Bank, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Magna Bank of Missouri, *
*
Appellee. *
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Submitted: June 11, 1996
Filed: August 16, 1996
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Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and
DOTY,* District Judge.
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MAGILL, Circuit Judge.
This case involves a priority battle between two creditors,
Enterprise Bank (Enterprise) and Landmark Bank (Magna),1 over the
assets of Gustave and Laura Saettele. The district court2
concluded that Magna's September 1991 attachment of these assets
was valid, thereby giving Magna a lien superior to Enterprise's
*THE HONORABLE DAVID S. DOTY, United States District
Judge for the District of Minnesota, sitting by
designation.
1
Landmark Bank became Magna Bank of Missouri following a
merger between Landmark Bancshares Corporation and Magna
Acquisition Corporation.
2
The Honorable George F. Gunn, Jr., United States District
Judge for the Eastern District of Missouri.
lien created in December 1991. We affirm.
I.
In order to secure loans from Enterprise and Magna, Gustave
and Laura Saettele executed personal guaranties of these loans.
This case involves efforts by Enterprise and Magna to enforce these
guaranties, with each bank seeking to satisfy their respective
judgments against the assets of the Saetteles, which are inadequate
to satisfy both judgments. The assets in dispute are Landmark
Bancshares Corporation Stock (Landmark stock) in the Saetteles'
account at Oppenheimer & Co. (Oppenheimer) and real property owned
by the Saetteles. Resolution of this priority battle turns on the
validity of Magna's prejudgment attachment of these assets.
In March 1991, Enterprise filed suit in federal district court
against the Saetteles to enforce the Saetteles' guaranty of the
Enterprise loan (the Enterprise lawsuit). In April 1991, Magna
also filed suit in federal district court to enforce the Saetteles'
guaranty of the Magna loan (the Magna lawsuit).
While each suit was pending, Magna learned that the Saetteles
intended to sell some or all of their remaining Landmark stock. On
September 20, 1991, Magna moved the district court for a writ of
attachment of the Saetteles' stock and other assets. In support of
its petition, Magna submitted the affidavit of Richard Lueck, Vice
President of Magna. In the affidavit, Lueck noted that attachment
would be proper under Mo. Rev. Stat. § 521.010(1), which permits
prejudgment attachment where the defendant is not a resident of
Missouri, and Mo. Rev. Stat. § 521.010(5), which permits
prejudgment attachment where the defendant is about to remove his
property from the state, with the intent to hinder his creditors.
The facts supporting each ground for attachment were included in
the affidavit. Based on the petition and affidavit, the petition
for the writ of attachment was granted on September 20, 1991.
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In December 1991, the district court handling the Enterprise
lawsuit entered judgment in favor of Enterprise. During January
1992, to execute the judgment, Enterprise perfected liens upon the
same assets owned by the Saetteles that Magna previously attached
in September 1991. Shortly thereafter, Enterprise learned of
Magna's prior attachment of those assets. Enterprise then sought
to intervene in the continuing Magna lawsuit in order to challenge
the validity of Magna's prejudgment attachment.
On February 18, 1992, the district court in the Magna lawsuit
granted judgment in favor of Magna and against the Saetteles, and
the court also denied Enterprise's motion to intervene. The court
concluded that Enterprise sought intervention "as a judgment
creditor, solely in order to protect whatever claim it may have
against" the property previously attached by Magna. Mem. at 13-14
(Feb. 12, 1992), reprinted in Appellant's App. at 18-19. Because
Enterprise "has no interest in the merits of [the Magna lawsuit]
other than protecting and asserting a judgment lien against the
same property attached by" Magna, the priority dispute was "better
left for the state court to resolve." Id. at 14, reprinted in
Appellant's App. at 19. Enterprise did not appeal this denial of
intervention.
On April 7, 1992, Enterprise filed a motion in the district
court to consolidate the Enterprise and Magna lawsuits for the
purpose of challenging Magna's prejudgment attachment. This motion
was granted, and on October 5, 1992, the district court entered an
order upholding the attachment. See Enterprise Bank v. Saettele,
804 F. Supp. 1111 (E.D. Mo. 1992). Enterprise appealed, and the
Eighth Circuit reversed on the ground that the order consolidating
the two cases was improper. See Enterprise Bank v. Saettele, 21
F.3d 233, 236-37 (8th Cir. 1994). The panel did not reach the
merits of the appeal.
On June 29, 1994, Enterprise initiated the current action by
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filing a petition for declaratory relief in Missouri state court.
In its petition, Enterprise sought a declaration that prejudgment
attachment based solely on the out-of-state residence of the
property owner is unconstitutional, or, alternatively, that the
attachment of the Saetteles' stock was procedurally invalid. This
case was removed to federal court.
Magna moved for summary judgment, on the grounds that: (1)
Enterprise did not have standing to challenge the constitutionality
of the attachment as it was applied against the Saetteles; (2)
Enterprise did not appeal the denial of its motion to intervene in
the Magna lawsuit, and thus it was precluded from bringing the
present action; (3) the attachment was valid under Mo. Rev. Stat.
§ 521.010(5), which permits prejudgment attachment where the debtor
is moving property out of state in an effort to hinder creditors,
a ground for attachment found constitutional by Connecticut v.
Doehr, 501 U.S. 1 (1991); (4) the Lueck affidavit provided
sufficient facts to support attachment under § 521.010(5); and (5)
Magna's attachment of stock was procedurally valid. This motion
was granted on all grounds by the district court on August 16,
1995. See Enterprise Bank v. Magna Bank of Mo., 894 F. Supp. 1337
(E.D. Mo. 1995). This appeal followed.3
II.
As a threshold matter, we must determine whether Enterprise's
declaratory judgment action is barred by claim preclusion,4 given
3
In addition to the issues discussed below, Enterprise also
claims that the district court erred when it took judicial notice
of pleadings in earlier related proceedings in this litigation
and that it erred by denying Enterprise's motion for an extension
of discovery. After reviewing these claims, we conclude that
they are without merit.
4
Magna also asserts that Enterprise lacks standing to bring
this claim. Missouri Rule of Civil Procedure 85.18 provides that
when the same property is attached in several actions by
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Enterprise's failure to appeal from the February 1992 denial of its
intervention motion. Magna contends that claim preclusion is
applicable, relying on Cheyenne River Sioux Tribe of Indians v.
United States, 338 F.2d 906 (8th Cir. 1964), cert. denied, 382 U.S.
815 (1965). The district court agreed. See Enterprise Bank, 894
F. Supp. at 1343.
In Cheyenne, the Cheyenne River Sioux Tribe (the Tribe) sought
to intervene as of right in a condemnation proceeding between the
United States and a tribe member, contending that, as the real
party-in-interest, it was an indispensable party to the proceeding.
The district court denied this motion, holding that the Tribe's
interests were adequately protected by the United States, and the
Tribe did not appeal. Due to its failure to appeal this ruling,
the Tribe was bound by the district court's determination that it
was not an indispensable party. The Tribe then brought a separate
action to have the judgment in the condemnation proceeding declared
null and void, contending that the judgment was rendered in the
absence of an indispensable party to the earlier proceeding. The
court held that the Tribe was precluded from raising this argument,
noting that "the issue of indispensability was decided against [the
Tribe] and res judicata bars further litigation of that issue
between the same parties." Cheyenne, 338 F.2d at 911.
Contrary to Magna's contention, Cheyenne does not hold that
the failure to appeal the denial of a motion to intervene as of
right will always preclude that party from bringing a new suit that
raises the same underlying claims as did the motion to intervene.
Rather, Cheyenne holds only that failure to appeal the denial of a
motion to intervene as of right will bar the party from later
relitigating whether it was an indispensable party, see id. at 911,
different claimants, the court shall determine the priority and
validity of the attachments. We assume without deciding that
this is sufficient to grant standing to Enterprise to bring this
action.
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because the legal issue decided against it in denying intervention
--the issue of indispensability--was the precise issue it sought to
litigate again in the independent action. Nothing in Cheyenne
suggests that its holding was to have any broader implications.
The facts of the present case do not fit within the limited
holding of Cheyenne. Enterprise does not seek to relitigate
whether it was an indispensable party to the Magna lawsuit; it does
not seek to have the Magna judgment declared null and void.
Rather, Enterprise merely seeks to litigate those claims that the
Magna court refused to consider. Claim preclusion is therefore not
applicable.
III.
Summary judgment is proper if there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). The court views the
evidence and the inferences which may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. See
Adkison v. G.D. Searle & Co., 971 F.2d 132, 134 (8th Cir. 1992).
The moving party has the burden of showing the absence of a genuine
issue of material fact and that it is entitled to judgment as a
matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A.
Enterprise contends that the district court erred in granting
the summary judgment motion because a question of material fact
exists as to whether the affidavit of Richard Lueck provided the
district court with a sufficient basis to grant the prejudgment
attachment to Magna. In support of this contention, Enterprise
argues that (1) the affidavit does not set forth sufficient facts
to warrant attachment, and (2) Lueck did not have a sufficient
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foundation to support the allegations contained in his affidavit.
Under Rule 85.03 of the Missouri Rules of Civil Procedure, a
party requesting a writ of attachment must file an affidavit
stating (1) the nature and amount of the claim, and (2) facts
showing the existence of one or more grounds for attachment. The
affiant must simply have good reason to believe in the existence of
one or more grounds for attachment. See Mo. Rev. Stat. § 521.060.
The affiant need not be ultimately correct in his belief. See
Elliott v. McCormick, 19 S.W.2d 654, 659-60 (Mo. 1929).
The affidavit at issue was sufficient to support attachment.
It set forth the nature and the amount of the claim. As to facts
showing the existence of a ground for attachment, the affidavit
stated:
7. Defendants have refused and continue to refuse
to provide personal financial information to Landmark as
required by Landmark, the most recent occasion having
occurred in the last few months.
8. Your affiant believes Defendants have sold and
are in the process of selling assets located within this
state. Your affiant believes that the net proceeds from
any such sale of Defendants' assets will not be available
to satisfy Landmark's claim, but instead the proceeds
will be moved out of this state to Landmark's prejudice.
Aff. for Attach. at 2, reprinted in Appellee's App. at 24. These
facts support attachment under Mo. Rev. Stat. § 521.010(5), which
permits attachment where the defendant is about to move the
property out of state with the intent to hinder his creditors.
Further, Lueck had a sufficient foundation to support the
allegations in the affidavit. He spoke directly with attorneys for
the holding company in which the Saetteles held their stock, who
apprised Lueck on several occasions that the Saetteles were in the
process of selling their stock. See Lueck Dep. at 19-23 (July 13,
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1992), reprinted in Appellant's App. at 87-91. Lueck also had
access to information concerning the Saetteles' bank accounts at
the former Landmark Bank, from which he learned that the Saetteles
had closed all of their accounts at that bank. Id. at 28,
reprinted in Appellant's App. at 96. Given the availability of
this information, we conclude that Lueck possessed good reason to
believe the allegations set forth in the affidavit.
B.
Enterprise also contends that the attachment of the Landmark
stock was procedurally deficient. Under Missouri law at the time,
when stock is issued in certificate form,5 then attachment of that
stock requires actual seizure of the certificate. See Mo. Rev.
Stat. § 400.8-317(1); Mo. R. Civ. P. 76.06. In this case, Magna
did not seize the stock certificates, but instead attempted to levy
on the stock by garnishing the Saetteles' account at Oppenheimer.
Magna counters that the stock was not certificated and was
therefore not able to be attached. In support of this, Magna
submitted a March 27, 1992 affidavit from H. Eugene Bradford, a
vice president at Boatmen's Trust Company, which is the transfer
agent for the Landmark stock. Bradford explained that the Landmark
stock owned by the Saetteles was certificated at one time, but the
certificates were cancelled on June 27 and September 16, 1991, by
Boatmen's Trust. See Bradford Aff. at ¶¶ 4-5 (Mar. 27, 1992),
reprinted in Appellee's App. at 310. The shares previously
represented by these certificates were reissued in uncertificated,
book-entry form in the name of Cede & Co. Id. Between September
24 and December 20, 1991, Boatmen's Trust did not issue
certificates representing the stock, and thus no physical stock
certificates representing the stock owned by the Saetteles existed
5
A certificated security is represented by an instrument in
bearer or registered form. Mo. Rev. Stat. § 400.8-102(1)(c).
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during this period. Id. at ¶ 7, reprinted in Appellee's App. at
311.
Based on the foregoing, we agree with the district court that
"no certificates were susceptible to ready attachment and thus,
[Magna] could resort to attachment by garnishment." Enterprise
Bank, 894 F. Supp. at 1345. Therefore, the garnishment of the
Saetteles' account at Oppenheimer was a valid method by which to
attach the stock.
IV.
Because the Lueck affidavit was sufficient to support
attachment, and because the attachment of the stock was not
procedurally defective, we affirm the decision of the district
court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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