Phil Rosemann v. St. Louis Bank

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 15-3965
___________________________

Phil Rosemann; Judith Smith; Suzanne Glisson; Clark Amos; Odis Hash; Mark
Bernstein; Marie Merlotti; Robert Givens; Preston Amos; Clayton Givens; Jill
Wittenmyer; Mary O’Sullivan, individually and as Trustee of the Thomas E.
O’Sullivan Revocable Living Trust and Neil J. O’Sullivan Trust and Executor of
Neil J. O’Sullivan Estate; Donna Hogshooter; Thomas Currier; Rudolf Ouwens;
Barbara O’Hanlon, as successor co-trustee of the Angelene Block Revocable Trust
and as trustee of the Barbara J. O’Hanlon Living Trust; Roy Currier; Richard
Aguilar; Billy Harrison; Sheila Mays; Elaine Reed; Cindy Merlotti; Buddy
Quessenberry; Dorothy Smith; Arlene Sincoski; Jerry Cronkite; Northwest
Properties (1973), LTD; Marjorie Bernstein; Stanley Kuhlo; Lewis Bernstein;
Brad Werner, trustee of the JH Werner Revocable Trust; Tom Bertani; Daryll
Currier; Jim Neill; Lorena Messenger; Homer Smith; Henry Barthel; Casey Cook;
Mark Merlotti; Donna Bertani; John Holl; Gary Smith; Charles Davis; Stanko
Matayo; Carol McCarthy, as successor co-trustee of the Angelene Block
Revocable Trust & co-trustee of the Carol A. McCarthy Living Trust; Delores
Cook; William McLemore; Wanda Lavender; Carol Green; Lewis Vollmar; Daren
Mays; William Wantling; Ben Miller; Kent Sturhahn; Sharon Cobb; Gifford
Jordan; Mark Cunningham; Bonita Cobb; Melba Aguilar; Thomas Barnes;
Dorothy Ziegler; Leonard Roman; John Shahan; Bob Moore; Julia Barthel;
Audrey Holl; Barbara Jordan; Eric Wittenmyer

lllllllllllllllllllll Plaintiffs - Appellants

v.

St. Louis Bank

lllllllllllllllllllll Defendant - Appellee
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 Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________

Submitted: December 14, 2016
Filed: May 24, 2017
____________

Before WOLLMAN, SMITH,1 and BENTON, Circuit Judges.
____________

SMITH, Circuit Judge.

This case continues to chronicle the legal consequences flowing from Martin
Sigillito’s Ponzi scheme known as the British Lending Program (BLP). See, e.g.,
Aguilar v. PNC Bank, N.A., 853 F.3d 390 (8th Cir. 2017); United States v. Sigillito,
759 F.3d 913 (8th Cir. 2014). Sigillito maintained commercial accounts at defendant
St. Louis Bank during the Ponzi scheme’s life. In this case, the plaintiffs, seeking to
recoup losses due to the BLP, sued St. Louis Bank, alleging (1) violations of
Missouri’s Uniform Fiduciaries Law (UFL); (2) aiding and abetting the breach of
Sigillito’s fiduciary duties; (3) conspiracy to breach Sigillito’s fiduciary duties; and
(4) conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act
(RICO), 18 U.S.C. § 1962(d). The district court2 granted summary judgment to St.
Louis Bank, and the plaintiffs appeal. We affirm.

1
The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
2
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa, sitting by designation.

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 I. Background
A. Martin Sigillito and the BLP
Sigillito, an attorney located in St. Louis, Missouri, and J. Scott Brown, an
attorney in Kansas, formed the BLP in the late 1990s. They formed the BLP to serve
as “an investment program to facilitate loans to an English law firm . . . to fund ‘black
lung’ claims brought on behalf of English coal miners. In approximately 2000 or
2001, the BLP began marketing loans for purported investments in real estate
developments in England.” Aguilar, 853 F.3d at 395. Sigillito operated the BLP from
1999 to 2010. During the Ponzi scheme, Sigillito directed investors to deposit money
for BLP loans into his Interest on Lawyers Trust Account (IOLTA). But instead of
sending the funds to England for investment, Sigillito fraudulently drew the funds out
of his IOLTA account for distribution to himself and others. In 2012, “Sigillito was
convicted of multiple counts of wire fraud, mail fraud, conspiracy to commit wire and
mail fraud, and money laundering because of his involvement in” the BLP Ponzi
scheme. Sigillito, 759 F.3d at 920.

B. St. Louis Bank’s Role
From 2006 to 2010, Sigillito was a commercial customer at St. Louis Bank.
Sigillito’s accounts at St. Louis Bank included (1) the Martin T. Sigillito &
Associates, Ltd. business account (“Business Account”); (2) the Martin T. Sigillito
& Associates, Ltd. business checking account (“Checking Account”); and (3) the
Martin T. Sigillito Attorney At Law IOLTA. In addition, Sigillito had lines of credit
at St. Louis Bank (“4316 Loan” and “4382 Loan” (collectively, “MTSA Loans”)) and
a Certificate of Deposit Account Registry Service (CDARS).

Except for plaintiff Phil Rosemann’s money, Sigillito deposited most of the
BLP investors’ funds into the IOLTA and immediately transferred them into another
account. Investors authorized Sigillito to manage their investments for them.
Rosemann signed four handwritten authorizations directing St. Louis Bank to follow
instructions from Sigillito on specific transactions.

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 Primarily, two St. Louis Bank employees interacted with Sigillito during the
relevant time period: Craig Hingle and Julie Ohlms. Hingle served as a commercial
loan officer at St. Louis Bank from 2005 until 2012. Previously, Hingle worked as a
loan officer at Allegiant Bank and knew Sigillito as a trust customer. While at
Allegiant Bank, Hingle set up a commercial line of credit for Sigillito and hired
Sigillito to create a trust for Hingle’s children. During his employment with St. Louis
Bank, Hingle helped to secure and service lines of credit for Sigillito and Rosemann.
Hingle was generally aware of the BLP and knew that Sigililto was involved with it.

Ohlms was the Assistant Vice President of Treasury Management at St. Louis
Bank from 2006 to 2010. She worked with Sigillito and Elizabeth Stajduhar, his
executive assistant, on various financial transactions, such as wire transfers, transfers
between accounts, and check cashing. Stajduhar was responsible for reconciling
Sigillito’s IOLTA and reviewing monthly account statements. Stajduhar frequently
contacted Ohlms to transfer money. At some point, Stajduhar began stealing money
out of Sigillito’s accounts by writing checks payable to “Elizabeth Perigen,” her
maiden name. Sigillito discovered Stajduhar’s defalcation and asked Ohlms to tell
him if any checks payable to “Elizabeth Perigen” were cashed. Ohlms called
Sigillito’s office, spoke to Stajduhar, and asked her to tell Sigillito that these checks
were being cashed. Ohlms did not know that Stajduhar was Perigen. Stajduhar never
explained anything about the BLP to Ohlms and “did not want [Ohlms] to know what
was going on.” Nothing in Stajduhar’s “conversation with [Ohlms] suggested that
[Ohlms] knew that [Stajduhar] or somebody was stealing—just that Sigillito wanted
to know when these checks were cashed.”

The only discussions that Stajduhar and Sigillito had with Ohlms “concerned
issues with the accounts, and at no time did the discussions concern[] the BLP.” At
no time did Stajduhar or Sigillito provide St. Louis Bank with any fee deduction
authorities, loan agreements, spreadsheets, reconciliation of the IOLTA, or other BLP
transaction records, nor did they provide documentation showing where investors

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thought their money was going or the intent behind deposits. Stajduhar “never
explained to anyone at [St. Louis] Bank what was going on with the BLP
borrowers . . . , and no one explained these to [St. Louis] Bank when checks were
issued with various names in the memo lines.” Neither Stajduhar nor Sigillito
informed St. Louis Bank that Sigillito was only engaged in work for the BLP, as
opposed to other types of legal work. And they never spoke with St. Louis Bank
about how BLP investments were distributed. In May 2010, Stajduhar believed that
Sigillito was defrauding his investors; however, she never informed St. Louis Bank.

Sigillito engaged in numerous transactions at St. Louis Bank, beginning in
2006. The most relevant transactions occurred in 2008, 2009, and 2010, as thoroughly
detailed in the district court’s order. See Rosemann v. St. Louis Bank, No. 14-CV-983-
LRR, Doc. 152 at 8–15 (E.D. Mo. Nov. 17, 2015).

C. Procedural History
Sixty-eight plaintiffs filed suit against St. Louis Bank, alleging (1) violation of
Missouri’s UFL (“Count I”); (2) aiding and abetting breach of fiduciary duty (“Count
II”); (3) conspiracy to breach fiduciary duty (“Count III”); and (4) conspiracy to
violate RICO (“Count IV”). St. Louis Bank moved for summary judgment on all
claims, and the plaintiffs moved for partial summary judgment on Count I. In a 60-
page opinion, the district court granted St. Louis Bank’s motion for summary
judgment on all claims and denied the plaintiffs’ motion for partial summary
judgment on Count I.

II. Discussion
The plaintiffs appeal the district court’s grant of summary judgment to
St. Louis Bank on all claims and the district court’s denial of summary judgment to
them on Count I (UFL claim).

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 “We review de novo a district court’s grant or denial of summary
judgment.” Aguilar, 853 F.3d at 401 (quoting Myers v. Lutsen Mountains Corp., 587
F.3d 891, 892 (8th Cir. 2009)).

A. Count I—UFL Claim
The plaintiffs argue that the district court erred in granting summary judgment
to St. Louis Bank on Count I for violations of the UFL. They contend that the
undisputed evidence establishes that (1) Sigillito was a fiduciary of the IOLTA;
(2) Sigillito breached his fiduciary duty; and (3) St. Louis Bank (a) had actual
knowledge of Sigillito’s breach, (b) acted in bad faith, or (c) knew that Sigillito
received a benefit from the breach of his fiduciary duty.

We recently set forth the state of the law regarding Missouri’s UFL in Aguilar.
See 853 F.3d at 405–06. As in Aguilar, the UFL provision at issue provides:

If a check or other bill of exchange is drawn by a fiduciary as such, or
in the name of his principal by a fiduciary empowered to draw such
instrument in the name of his principal, the payee is not bound to inquire
whether the fiduciary is committing a breach of his obligation as
fiduciary in drawing or delivering the instrument, and is not chargeable
with notice that the fiduciary is committing a breach of his obligation as
fiduciary unless he takes the instrument with actual knowledge of such
breach or with knowledge of such facts that this action in taking the
instrument amounts to bad faith. If, however, such instrument is payable
to a personal creditor of the fiduciary and delivered to the creditor in
payment of or as security for a personal debt of the fiduciary to the
actual knowledge of the creditor, or is drawn and delivered in any
transaction known by the payee to be for the personal benefit of the
fiduciary, the creditor or other payee is liable to the principal if the
fiduciary in fact commits a breach of his obligation as fiduciary in
drawing or delivering the instrument.

Mo. Ann. Stat. § 469.270 (emphases added).

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 Contrary to the plaintiffs’ contention, § 469.270 is not a strict-liability statute.
Aguilar, 853 F.3d at 409. Under the first sentence of § 469.270, a bank is not “liable
for a fiduciary’s breach of duty absent either (1) actual knowledge of the breach or
(2) knowledge of sufficient facts to constitute bad faith.” Id. at 406 (quotations
omitted). Under the second sentence of § 469.270,

a payee is liable to the principal for a fiduciary’s breach if either: (1) the
check is payable to a personal creditor of the fiduciary and delivered to
the creditor to pay or secure the fiduciary’s personal debt to the actual
knowledge of the creditor, or (2) the check is drawn and delivered in any
transaction known by the payee to be for the personal benefit of the
fiduciary.

Id. at 409 (quoting Chouteau Auto Mart, Inc. v. First Bank of Mo., 55 S.W.3d 358,
360 (Mo. 2001) (en banc)). Thus, in order to hold the bank liable, § 469.270 requires
proof that the Bank have “actual knowledge that it was applying the proceeds to a
debt owed the Bank,” DeLaRosa v. Farmers State Bank S/B, 474 S.W.3d 240, 245
(Mo. Ct. App. 2015), or “must know that [the fiduciary] is using the fiduciary funds
for [his] personal benefit,” Aguilar, 853 F.3d at 409 (alterations in original) (quoting
Chouteau, 55 S.W.3d at 360–61). On this record, the plaintiffs fail to establish either
actual knowledge or bad faith.

1. Actual Knowledge
The plaintiffs argue that numerous e-mails between Sigillito and Hingle and
Ohlms prove Hingle’s and Ohlms’s knowledge that Sigillito was misappropriating
fiduciary funds in the IOLTA to pay off his line of credit at St. Louis Bank. For
Hingle and Ohlms to have actual knowledge of Sigillito’s breach of his fiduciary
duty, they must have had an “awareness that, at the moment, the fiduciary was
defrauding the principal.” Aguilar, 853 F.3d at 407 (quotations omitted). They must
have possessed “express factual information” that Sigillito was using the fiduciary
funds “for private purposes in violation of the fiduciary relationship.” Id. (quotations

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omitted). St. Louis Bank cannot be found to have “actual knowledge of a breach of
trust merely because at some stage of the handling of the fiduciary account it could,
by inspection of public records or by piecing together all the facts known by different
employees of the bank, become aware of a breach of trust.” Id. (quotations omitted).

Having reviewed the record, we agree with the district court that “nothing in
the e-mails [offered by the plaintiffs] evidences any understanding with respect to the
fiduciary status of the funds being discussed or any possible misappropriation of
Plaintiffs’ funds.” These e-mails and other record evidence show Sigillito moving
large sums of money between his IOLTA, Business Account, and MTSA Loans. But,
as the district court recognized, none of this “evidence show[s] that St. Louis Bank
had a duty to investigate these transactions, or that St. Louis Bank’s employees
should have been on notice that Sigillito was misusing funds [from the IOLTA].”

The multiple-source nature of the IOLTA precluded St. Louis Bank and its
employees from knowing whether transactions in the account involved fiduciary
funds. As we recognized in Aguilar, “[t]he funds held in a Missouri IOLTA . . . may
contain a variety of funds, including individual client funds, multiple client funds,
and attorney’s fees.” 853 F.3d at 397 (emphasis added).3 In the present case, St. Louis

3
The 2006 and 2007 versions of the Missouri Supreme Court Rules are the
same as that set forth in Aguilar, 853 F.3d at 397 n.5. The 2008, 2009, and 2010
versions provide that “[a] lawyer shall deposit into a client trust account legal fees
and expenses that have been paid in advance, to be withdrawn by the lawyer only as
fees are earned or expenses incurred.” Mo. Sup. Ct. R. 4-1.15(e) (2008, 2009, 2010);
see also Mo. Sup. Ct. R. 4-1.15 cmt. 3 (2008, 2009, 2010) (“Lawyers often receive
funds from which the lawyer’s fee will be paid. The lawyer is not required to remit
to the client funds that the lawyer reasonably believes represent fees owed. However,
a lawyer may not hold funds to coerce a client into accepting the lawyer’s contention.
The disputed portion of the funds must be kept in a trust account, and the lawyer
should suggest means for prompt resolution of the dispute, such as arbitration. The
undisputed portion of the funds shall be promptly distributed.”).

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Bank offered unrebutted expert testimony from certified public accountant Joseph
Hopkins that an IOLTA includes “[r]etainer fees paid to lawyers by clients which
become attorneys’ fees as legal work is performed”; “[j]udgments or settlements paid
that will be split between the lawyer and client at a later date”; “[p]ayments from third
parties for other activity such as investments to be made by the lawyer on behalf of
the client whereby the lawyer will earn a fee”; and “[r]eimbursement by clients and
non-clients for expenses incurred by the lawyer.” Hopkins identified as a “common
scenario” an IOLTA “hold[ing] funds paid by the client up front as an advance on
fees and expenses before the work is done and prior to the client’s approval of
billing.” Consistent with Aguilar, Hopkins explained that funds in an IOLTA “may
be owed to the beneficiaries of the trust, the attorney involved and unrelated third
parties.”

The plaintiffs argue that Hopkins’s conclusory statement that “[t]he funds in
the account may be owed to . . . the attorney involved” ignores the fact that client
funds in an IOLTA that are paid as an advance on fees remain client property until
the fees are earned; once those fees are earned, the lawyer must remove his fees from
the IOLTA. In his report, Hopkins did recognize that “[o]nce the lawyer earns the fees
and bills the client, and upon the client’s approval of the lawyer’s billing, the funds
are no longer property of the client and should be removed from the lawyer’s
[IOLTA].” The plaintiffs have not provided evidence that any funds that Sigillito
removed from the IOLTA were not properly earned fees or funds that he was
otherwise authorized to remove.

Furthermore, other undisputed evidence shows that St. Louis Bank’s
understanding of the IOLTA—even if mistaken—was that an IOLTA may consist of
money belonging to the lawyer. See Aguilar, 853 F.3d at 407 (“Neither party disputes
that ‘[i]n 2001, Allegiant Bank’s understanding of the nature and function of IOLTA

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accounts was that . . . an IOLTA account can be funds for an individual client,
multiple clients, and could include funds that belong to the lawyer, themselves.’”
(ellipsis and alteration in original)). For example, Kimberli Palmer, Executive Vice
President and Chief Operations Officer of St. Louis Bank, declared that

unlike a typical trust account in which the Bank might know the identity
of specific beneficiaries, an IOLTA Account can contain funds of
multiple and ever-changing beneficiaries, as well as third party funds
and fees earned by the attorney. The Bank did not have Sigillito’s
detailed records concerning IOLTA funds, and did not know whether a
given transaction was authorized or not.

The undisputed evidence also shows that St. Louis Bank’s employees lacked actual
knowledge of Sigillito’s breach of fiduciary duty. The evidence shows that Hingle did
not know whether money in Sigillito’s IOLTA account was received from investors,
law clients, or others, and had no way of knowing the source of the funds. Likewise,
Ohlms had no understanding of Sigillito’s law practice and lacked knowledge of the
parties involved in the various transactions, reasons for the transfers, or whether the
money belonged to Sigillito. And Stajduhar, Sigillito’s assistant, testified that (1)
St. Louis Bank was given no information concerning the BLP; (2) Stajduhar and
Sigillito would contact Ohlms to handle transactions, but Stajduhar never explained
why they were made or whether they pertained to the BLP; (3) Stajduhar never saw
any documents about the BLP that were sent to St. Louis Bank; (4) Stajduhar never
gave St. Louis Bank any breakdown of the process, loan agreements, spreadsheets,
or instructions showing how investors’ money was being used; and (5) Stajduhar
never saw anything indicating that St. Louis Bank had knowledge of what was
happening with the BLP.

As a result, we hold that the plaintiffs have failed to show that St. Louis Bank
had actual knowledge that Sigillito misappropriated fiduciary funds.

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 2. Bad Faith
The plaintiffs argue that they proved that St. Louis Bank acted in bad faith
when it “covered up” “two material overdrafts in the IOLTA.” The first overdraft
occurred on April 20, 2009, when the IOLTA was overdrawn in the amount of
$249,032.46. Sigillito addressed the deficiency by directing St. Louis Bank to transfer
$288,200.25 from the Business Account into the IOLTA, thereby resolving the
overdraft. The second overdraft occurred on May 20, 2009, when Sigillito wired
$141,000 from the IOLTA to the British American Group. This wire created an
overdraft in the IOLTA of $143,839.12. Also on May 20, 2009, Hingle signed the
check disbursing $150,000 from the 4382 Loan with check no. 3424.

The plaintiffs argue that “Sigillito’s $249,032 and $143,839 overdraft[s] of his
IOLTA put St. Louis Bank on notice that Sigillito was misappropriating client funds.
St. Louis Bank even advanced funds from its line of credit to cover the overdraft.”
They assert that “[a] check on a client account that is dishonored for insufficient
funds is often evidence that a lawyer has improperly commingled client funds, in
violation of his or her fiduciary duties.” (Quoting Lerner v. Fleet Bank, N.A., 459
F.3d 273, 280 (2d Cir. 2006).) They maintain that “IOLTA overdrafts are ‘indicative
of trust withdrawals for nontrust purposes.’” (Quoting Lerner, 459 F.3d at 288.)

“The test of bad faith is ‘whether it is commercially unjustifiable for the
person accepting a negotiable instrument to disregard and refuse to learn
facts readily available. Where circumstances suggestive of the
fiduciary’s breach become sufficiently obvious it is “bad faith” to
remain passive.’” [Watson Coatings, Inc. v. Am. Express Travel Related
Servs., Inc., 436 F.3d 1036, 1041 (8th Cir. 2006)] (quoting Trenton [Tr.
Co. v. W. Sur. Co.], 599 S.W.2d [481,] 492 [(Mo. 1980 (en banc)]). For
a bank to act in bad faith, “[t]he facts and circumstances must be so
cogent and obvious that to remain passive would amount to a deliberate
desire to evade knowledge because of a belief or fear that inquiry would
disclose a defect in the transaction.” Hendren [v. Farmers State Bank,
S.B.], 272 S.W.3d [345,] 350 [(Mo. Ct. App. 2008)] (quoting Gen. Ins.

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 Co. of Am. [v. Commerce Bank of St. Charles], 505 S.W.2d [454,] 458
[(Mo. Ct. App. 1974)]).

Aguilar, 853 F.3d at 408 (fifth alteration in original).

In Buffets, Inc. v. Leischow, we concluded that a bank’s toleration of a severe
practice of overdrafts or significant evidence of check kiting amounts to bad faith (as
opposed to actual knowledge) under the Uniform Fiduciaries Act4 only when the bank
knows either a designated fiduciary account or a segregated account contains the
principal’s funds. 732 F.3d 889, 900–01 (8th Cir. 2013).We explained:

Where funds are held in a fiduciary account and the bank is thus aware
that they do not belong to the fiduciary, the nature of the account
necessarily puts the bank on notice of fiduciary obligations. So it
follows that the fiduciary’s suspicious banking practices alone can
indicate a violation of those obligations and the bank’s bad faith. Where
funds are held in the fiduciary’s personal account, by contrast,
overdrafts and check kiting do not necessarily implicate a fiduciary duty.
The bank may be unaware that any funds are held subject to a fiduciary
obligation. Even if the bank knows that fiduciary obligations apply to
some funds in the account, overdrafts and check kiting may not involve
those specific funds, so the bank may not be acting in bad faith in
processing any particular transaction.

Given this distinction, . . . a bank’s toleration of “a severe practice
of overdrafts or significant evidence of check kiting” by itself amounts
to bad faith only in the context of either a designated fiduciary account
or a segregated account that the bank knows contains the principal’s
funds.

4
“The UFL is the Missouri codification of the Uniform Fiduciaries Act . . . .”
Aguilar, 853 F.3d at 405 (quotations omitted). Buffets involved Minnesota’s Uniform
Fiduciaries Act. 732 F.3d at 898.
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Id. (second emphasis added) (quoting McCartney v. Richfield Bank & Tr. Co., Nos.
CX–00–1466, C1–00–1467, 2001 WL 436154, at *4 (Minn. Ct. App. May 1, 2001)).

Here, the IOLTA is a fiduciary account. But as Hopkins’s unrebutted expert
testimony shows, an IOLTA is a “demand deposit” account, different from a typical
trust account. A trust account at a bank is “an account whereby the trust department
of a bank . . . is the trustee of the account and has primary fiduciary responsibility to
an individual or limited group of individuals . . . who are the beneficiaries of such a
trust.” Funds in an IOLTA, however, “may be owed to the beneficiaries of the trust,
the attorney involved and unrelated third parties.” Hopkins stated that “the activity
in the IOLTA comports with the activity you would anticipate seeing with an
attorney.” Finally, Hopkins stated that there was no activity in or patterns that led him
to believe that St. Louis Bank, “acting in a commercially reasonable banking manner,
should have known” that Sigillito was misappropriating client funds.

Because an IOLTA is not a typical trust account and may involve a variety of
funds—some of which are attorney’s fees that the attorney withdraws when
earned—even if St. Louis Bank knew that Sigillito had fiduciary obligations as to
“some funds in the account, overdrafts and check kiting may not involve those
specific funds, so the bank may not be acting in bad faith in processing any particular
transaction.” Buffets, 732 F.3d at 901.

And, the undisputed facts show St. Louis Bank’s belief that “unlike a typical
trust account in which the Bank might know the identity of specific beneficiaries, an
IOLTA Account can contain funds of multiple and ever-changing beneficiaries, as
well as third party funds and fees earned by the attorney.”

Finally, in uncontroverted testimony, Palmer explained that the overdrafts were
caused by Sigillito’s mistakes involving transfers to or from the wrong accounts, or
the timing of the transfers. Both overdrafts were corrected by transfers using funds

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already available prior to the overdrafts. And Hingle stated that the increase to the
MTSA Loans was discussed with Sigillito on March 27, 2009, well before the
April 20 overdraft, and it was authorized on May 18, prior to the May 20 overdraft.

Accordingly, we conclude that the plaintiffs have failed to prove that St. Louis
Bank acted in bad faith.

3. Personal Benefit
The plaintiffs also argue that St. Louis Bank is liable under the UFL because
it knew that Sigillito was “using the fiduciary funds for [his] personal benefit.”
Chouteau, 55 S.W.3d at 360–61. Before the district court, the plaintiffs argued that
Sigillito held personal debts at St. Louis Bank in the form of the 4316 Loan and the
4382 Loan (MTSA lines-of-credit loans) and, therefore, St. Louis Bank is strictly
liable for payments on these loans. The plaintiffs noted that Sigillito was a personal
guarantor of the 4316 Loan and the 4382 Loan and argued that “[a]s guarantor of
these loans, the debt owed to St. Louis Bank was a personal debt of Sigillito.”

St. Louis Bank correctly points out that, on appeal, the plaintiffs have
“abandon[ed] their arguments about the MTSA loans, only to make similar claims
about repayments of a loan to Rosemann.” Specifically, the plaintiffs argue that
Sigillito pledged his collateral for Rosemann’s $600,000 line-of-credit loan; the
collateral for this line of credit “was the assignment of the CDARS account of MTSA
in the amount of $327,556 and the CDARS account of Martin T. Sigillito in the
amount of $280,224.” They argue that Sigillito personally benefitted from the
repayment of Rosemann’s loan “by having his collateral returned to him.”

We agree with St. Louis Bank that the plaintiffs have failed to provide any
legal authority that repayments of debts guaranteed by a fiduciary are for the
fiduciary’s “personal benefit.” This is not a case in which Rosemann defaulted on the
loan, thereby resulting in him being personally liable for the debt on the guarantor.

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Cf. Enter. Bank & Tr. v. Barney Ashner Homes, Inc., 300 P.3d 115 (Kan. Ct. App.
2013) (memorandum opinion) (liability following default on loan).

The plaintiffs also argue that St. Louis Bank is liable for accepting fiduciary
funds from Sigillito’s IOLTA to repay his corporate loan. They maintain that
St. Louis Bank benefitted from this repayment. According to the plaintiffs, “[s]hortly
after accepting direct payments for Rosemann, St. Louis Bank on May 19, 2008,
accepted a check for $175,053.47 ‘as payee and drawee bank’ and applied [that
amount] ‘to pay off the MTSA line of credit, loan number 431600.’” But these MTSA
loans were not personal debts of Sigillito’s. Stajduhar testified that the MTSA Loans
were not loans to Sigillito personally, and she knew of no payments on a personal
loan or personal debt of Sigillito from the IOLTA. Both Palmer and Hingle testified
that St. Louis Bank’s loans were made to MTSA and were not personal loans to
Sigillito and were not reported on his personal credit bureau report because they were
not personal loans. Palmer testified that Sigillito had no personal debt owed to St.
Louis Bank and that St. Louis Bank had no knowledge of any payment by Sigillito
of a personal debt. She also testified that although Sigillito and his wife gave
St. Louis Bank Commercial Guaranties on MTSA Loans, they were not a personal
debt of Sigillito and were not classified as such by St. Louis Bank. As the district
court stated, the evidence in the record demonstrates that the 4316 Loan and the
4382 Loan were commercial loans made to Martin T. Sigillito & Associates and were
never classified as personal loans.

As a result, we conclude that the plaintiffs have failed to show that St. Louis
Bank knew that Sigillito was “using the fiduciary funds for [his] personal benefit.”
Chouteau, 55 S.W.3d at 360–61.

We hold that the district court properly denied summary judgment to the
plaintiffs on their UFL claim and granted summary judgment to St. Louis Bank on
that claim.

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 B. Counts II, III, and IV—Common-law Claims and RICO Claim
The plaintiffs argue that the district court erred in granting summary judgment
to St. Louis Bank on the common-law claims set forth in Counts II and III: aiding and
abetting breach of fiduciary duty and conspiracy to breach fiduciary duty. They also
assert that the district court erred in granting summary judgment to St. Louis Bank on
their claim that St. Louis Bank conspired with Sigillito to violate RICO.

Under Missouri law,5 to prove that St. Louis Bank aided and abetted Sigillito
in the breach of his fiduciary duty, the plaintiffs must establish that St. Louis Bank
“kne[w] that [Sigillito’s] conduct constitute[d] a breach of duty and g[ave] substantial
assistance or encouragement to [Sigillito] so to conduct himself.” Aguilar, 853 F.3d
at 403 (first and fourth alterations in original) (quoting Bradley v. Ray, 904 S.W.2d
302, 315 (Mo. Ct. App. 1995)). The plaintiffs must show that St. Louis Bank
“affirmatively act[ed] to aid [Sigillito].” Id. (first alteration in original) (quoting
Bradley, 904 S.W.2d at 315). St. Louis Bank is not liable for a mere “failure to object
to the tortious act [or its] mere presence at the commission of the tort.” Id. (quoting
Bradley, 904 S.W.2d at 315). “[M]ere negative acquiescence” is insufficient to hold
St. Louis Bank liable; instead, it must have “associate[d] [itself] in some way with
[Sigillito] in bringing about the commission of the crime.” Id. (second alteration in
original) (quoting Bradley, 904 S.W.2d at 315).

To prove that St. Louis Bank conspired with Sigillito to breach his fiduciary
duties, the plaintiffs “must prove the elements of civil conspiracy.” Id. at 402. Those
elements include:

(1) two or more persons, (2) an object to be accomplished, (3) a meeting
of the minds on the object or course of action, (4) one or more unlawful
overt acts, and (5) resulting damages. The essence of a civil conspiracy
is an unlawful act agreed upon by two or more persons.

5
The parties agree that Missouri law applies to the common-law claims.
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Id. at 402–03 (quoting Mackey v. Mackey, 914 S.W.2d 48, 50 (Mo. Ct. App. 1996)).
The third element requires the plaintiffs to prove “that any two of the Defendants
involved in the alleged civil conspiracy met, negotiated, and more importantly,
achieved a meeting of the minds to carry out some unlawful purpose.” Id. at 403
(quoting Intertel, Inc. v. Sedgwick Claims Mgmt. Servs., Inc., 204 S.W.3d 183,
204–05 (Mo. Ct. App. 2006)). To prove that St. Louis Bank and Sigillito had a
“meeting of the minds,” the plaintiffs must show that the parties had “a unity of
purpose or a common design and understanding.” Id. (quoting Glob. Control Sys.,
Inc. v. Luebbert, No. 4:14-CV-657-DGK, 2016 WL 910190, at *2 (W.D. Mo. Mar.
9, 2016)).

To prove that St. Louis Bank conspired with Sigillito to violate RICO, the
plaintiffs must not only prove the elements of a RICO violation but also that St. Louis
Bank “objectively manifested an agreement to participate . . . in the affairs of [the]
enterprise.” Id. at 402 (ellipsis and alteration in original) (quoting United States v.
Darden, 70 F.3d 1507, 1518 (8th Cir. 1995)). Proving that St. Louis Bank merely
associated with Sigillito, knew about the conspiracy, and was present during
conspiratorial discussions is insufficient to show that St. Louis Bank conspired with
Sigillito to violate RICO. Id. Instead, the plaintiffs must produce evidence that
St. Louis Bank “was aware of the scope of the enterprise and intended to participate
in it.” Id. (quoting United States v. Stephens, 46 F.3d 587, 592 (7th Cir. 1995)).

The plaintiffs argue that St. Louis Bank’s handling of the overdrafts in the
IOLTA proves that it knew that Sigillito was breaching his fiduciary duty. They also
reference several e-mails to prove that St. Louis Bank, as payee and drawee bank,
accepted millions in fiduciary funds for payment of principal and interest on
Sigillito’s personal line of credit. They contend that they have proven a common-law
conspiracy and conspiracy to violate RICO by producing evidence that Sigillito used
the IOLTA to pay personal expenses and loans with St. Louis Bank.

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 We conclude that the plaintiffs’ common-law and RICO claims fail because
their evidence does not create any genuine issues of material fact. We have already
held that the evidence of overdrafts and e-mails is insufficient to prove St. Louis
Bank’s actual knowledge under the UFL. See supra Part II.A.1. For the same reasons,
such evidence is insufficient to prove that St. Louis Bank knew that Sigillito’s conduct
constituted a breach of his fiduciary duty, had a meeting of the minds with Sigillito to
breach his fiduciary duty, or objectively manifested an agreement to participate in
criminal activity with Sigillito. This reasoning extends to the plaintiffs’ contention that
St. Louis Bank “knew that Sigillito was prohibited from using funds in his
IOLTA . . . to pay his personal debts.” Even assuming Sigillito was using IOLTA
funds to pay personal debts, the plaintiffs have failed to produce evidence that the
funds were not properly earned fees or funds that he was otherwise authorized to
remove from the account. See supra Part II.A.1. This is because an IOLTA is a unique
trust account that may involve a variety of funds, some of which are attorney’s fees
that the attorney withdraws when earned. See supra Part II.A.1.

As a result, we hold that the district court properly granted summary judgment
to St. Louis Bank on Counts II, III, and IV.

III. Conclusion
Accordingly, we affirm the judgment of the district court.
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