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Simmons First National Bank, As Successor In Interest To Southwest Community Bank v. Charles D. O'kieffe

July 20, 2012

SIMMONS FIRST NATIONAL BANK, AS SUCCESSOR IN INTEREST TO SOUTHWEST COMMUNITY BANK PLAINTIFF,
v.
CHARLES D. O'KIEFFE, INDIVIDUALLY, AND JOHN D. O'KIEFFE AND
WILLIAM P. O'KIEFFE, AS CO-TRUSTEES OF THE CHARLES D. O'KIEFFE TRUST, DATED FEBRUARY 2, 1996, DEFENDANTS-THIRD PARTY PLAINTIFFS,
v.
ROBERT C. WOOLARD, KAREN O. WOOLARD, ROBERT B. MADDOX, ROBERT BUTLER, AND PAUL WALDRON, THIRD PARTY DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Simmons First National Bank ("Simmons"), as successor in interest to Southwest Community Bank ("SCB"), initiated this lawsuit to enforce guaranties on loans issued by SCB to three borrowers involved in a residential development project in Missouri. The guarantor, Charles O'Kieffe, initially denied liability, but he nevertheless filed a third-party complaint seeking contribution from Robert Woolard, Karen Woolard, Robert Maddox, Robert Butler, and Paul Waldron (collectively, "Third-Party Defendants") should the guaranties be enforced against him. O'Keiffe has since settled with Simmons, but he still maintains the suit for contribution. Third-Party Defendants Butler, Waldron, and Maddox have moved to dismiss the third-party complaint for lack of personal jurisdiction,*fn1 and, for the reasons explained herein, their motions are granted.*fn2

FACTS

In 2008 and 2009, O'Kieffe signed guaranties on five loans issued by SCB to three borrowers: Kenwilago Group, LLC ("Kenwilago"), Cliffs at Indian Point, LLC ("Cliffs"), and Premiere Properties of the Ozarks, LLC ("Premiere") (Compl. ¶¶ 19, 36, 52, 75, 97-98.) All of the loans were for a residential development project consisting of condominiums and cabins in Branson, Missouri. (Third-Party Compl. ¶ 12.) When the borrowers defaulted, Simmons filed this suit to enforce O'Kieffe's guaranties. As stated, O'Kieffe has settled with Simmons, but still seeks contribution from Third-Party Defendants who, O'Kieffe claims, were the original guarantors of the five loans. (Third-Party Compl. ¶ 1.) Specifically, and as relevant to this opinion, O'Kieffe alleges that Butler and Maddox are co-guarantors of the Kenwilago loan, and that Butler, Maddox, and Waldron are co-guarantors of the Cliffs loan. (Third-Party Compl. ¶¶ 16, 23.) O'Kieffe also seeks contribution from Karen and Robert Woolard, who he claims are co-guarantors of all five loans (Third-Party Compl. ¶¶ 16, 23, 30, 37, 44), but since the Woolards have not answered the third-party complaint, the court need not address those claims further at this time.

A. The Guaranties

There are two guaranty agreements relevant to this opinion. The first one, signed January 15, 2009, makes O'Kieffe liable for $339,726.44, plus interest and fees, should Cliffs default on its loan from SCB. (Guaranty (hereinafter "Cliffs Guaranty"), Ex. E to Compl., ¶ 4.) The Cliffs Guaranty contains a choice-of-law provision specifying that the contract "shall be governed according to the laws of the State in which it is executed." (Cliffs Guaranty ¶ 13.) The top of the first page of the Cliffs Guaranty identifies its location as "Ozark, Missouri," without further explanation. (See Cliffs Guaranty.) The underlying $1.65 million loan agreement between Cliffs and SCB also states, under the heading "Applicable Law," that "[t]he law of the state of Missouri will govern this note." (Note (hereinafter "Cliffs Note"), Ex. D to Compl., at 2.)

By signing the second guaranty, also on January 15, 2009, O'Kieffe agreed to be held liable for all Kenwilago's indebtedness. (Guaranty (hereinafter "Kenwilago Guaranty"), Ex. B to Compl., ¶ 4.) The underlying loan between Kenwilago and SBC was for $1.8 million. (Note (hereinafter "Kenwilago Note"), Ex. A to Compl., at 1.) As with the Cliffs Guaranty, the Kenwilago Guaranty identifies Ozark, Missouri as the document's location (Kenwilago Guaranty at 1), but the second page of the Kenwilago Guaranty-which may include a choice-of-law provision- is absent from the record (the first page was submitted twice). Regardless, the court presumes that the Kenwilago Guaranty also contains the choice-of-law provision requiring the agreement be governed by the law of the state in which it was executed, i.e., Missouri law, because O'Kieffe and SCB executed the Kenwilago Guaranty on the same day as the Cliffs Guaranty, and the agreements are otherwise identical. The loan agreement between Kenwilago and SCB also declares that Missouri law will govern the underlying $1.8 million note. (Kenwilago Note at 2.)

B. Third-Party Defendants' Contacts With Illinois

According to O'Kieffe's allegations, Kenwilago, formerly known as Argonaut Midwest Holdings, LLC ("Argonaut Midwest"), initiated a residential development project in Branson, Missouri in 2004. (Third Party Pls.' Resp. to Mots. to Dismiss Third-Party Compl.(hereinafter "O'Kieffe's Resp.") [65] at 2.) O'Kieffe states, further, that in 2005, Butler, Waldron, and Maddox created Cliffs, which then entered into an agreement to build and market condominiums with Kenwilago. (O'Kieffe's Resp. at 2.) The following year, in 2006, both Kenwilago and Cliffs obtained loans from SCB in order to finance the development in Branson. (O'Kieffe's Resp. at 2-3.) Prior to 2009, O'Kieffe claims, the Cliffs loan was guaranteed by all five Third-Party Defendants and the Kenwilago loan was guaranteed by all Third-Party Defendants but Waldron. (O'Kieffe Resp. at 3.) When Third-Party Defendants sought an extension and modification of the Cliffs loan in 2008, O'Kieffe states, SCB required additional collateral; if Third-Party Defendants could not provide that collateral, SCB would deny the extension, call the loan, and require full payment from Cliffs or from the original guarantors, Third-Party Defendants. (O'Kieffe Resp. at 4.) Thus, O'Kieffe claims that, with Butler and Waldron's support, Robert Woolard solicited new guaranties from O'Kieffe in order to bolster Third-Party Defendants' financial standing and secure the extension.*fn3 (O'Kieffe's Resp. at 4.)

Specifically, O'Kieffe alleges that the Third-Party Defendants "agreed that [Robert] Woolard would go to Illinois and use his familial relationship with O'Kieffe in order to secure his investment and signatures on the guaranties."*fn4 (O'Kieffe's Resp. at 4.) O'Kieffe, however, does not identify any particular contact that Woolard made with him, nor does he describe the dates or times of any specific communication he had with Robert Woolard; he states simply that "Butler and Waldron agreed to have [Robert] Woolard communicate with O'Kieffe by phone and in person in Illinois." (O'Kieffe's Resp. at 10.)

i. Robert Butler

In support of his argument that this court may assert personal jurisdiction over Butler, O'Kieffe submits the declaration of Michael Hyams, Chief Operating Officer of Premiere Properties.*fn5

(See Hyams Decl., Ex. 1 to O'Kieffe's Resp.) According to O'Kieffe, Hyams's declaration demonstrates the existence of an agreement between Butler and Robert Woolard to solicit the guaranties from O'Kieffe in Illinois. (O'Kieffe's Resp. at 4. ) Hyams, however, speaks only to Butler's knowledge of Robert Woolard's efforts, stating: "In my meetings with Robert Butler and Robert Maddox in 2008, Robert Butler stated that he was aware that O'Kieffe was Robert Woolard's brother-in-law and Karen Woolard's brother, that O'Kieffe had significant personal wealth, that O'Kieffe lived in Illinois, and that Robert Woolard had convinced O'Kieffe to invest in Argonaut Midwest [n/k/a Kenwilago] ." (Hyams Decl. ¶ 13.) O'Kieffe also relies on the existence of a prior business relationship between the parties: in 2003 and 2004 O'Kieffe loaned $365,000 to Argonaut Midwest, of which Butler was president and part owner at the time. (Third-Party Pls.' Combined Sur-Reply to Third-Party Defs.' Butler and Waldron's Mots. to Dismiss Third-Party Compl. (hereinafter "O'Kieffe's Reply to Butler and Waldron") [78] at 5.)

For his part, Butler maintains that he has "never met, spoken with, or communicated with" any of the O'Kieffes, nor "encouraged directly or indirectly through Robert Woolard their loans, investments, or guarantee." (Butler Aff., Ex. 1 to Butler's Reply in Supp. of Mot. to Dismiss [84] ¶ 5.) Butler states that the "validity" of any guaranties he signed for SCB "remain[s] the subject of pending debate." (Butler Aff., Ex. 1 to Butler's Reply [84], ¶ 8.) Butler does not deny he knew of O'Kieffe and Robert Woolard's relationship, nor does he deny that he knew of Robert Woolard's efforts to ...


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