Missouri Baptist Convention (MBC) attorneys urged an appeals court to permit the MBC to pursue the recovery of 1,300 acres of land in spite of a prior appellate opinion that MBC could not regain control of the Windermere corporation.
Oral argument was held on Jan. 15 before a three-judge panel of the Missouri Court of Appeals, Southern District, in Springfield. It was the latest round in the legal efforts by MBC to recover the real estate transferred to the Windermere corporation in 2001.
MBC Attorney Michael Blanton asked the Springfield appeals panel to reverse a Camden County trial judge’s order in April 2009, dismissing several defendants including the Windermere corporation, several lenders and William Jester. The trial judge had based his ruling in part on his view that a February 2009 appellate opinion from the Kansas City court of appeals had already decided most issues in the Camden County case.
Blanton argued that the Cole County case and the Camden County case involved different legal claims and issues, and thus the earlier opinion was not dispositive of the Camden County case. In Camden County, the MBC sought to “quiet title” to 1,300 acres, which includes 943 acres the Windermere corporation transferred to National City Bank of the Midwest in late 2005 in lieu of foreclosure. In February 2006, the bank sold the property to Windermere Development Co. LLC, (WDC), a company set up by William Jester of Springfield, who gave mortgages to Consolidated Mortgage and National City Bank for the $5.5 million purchase price.
Attorney Michael Cessna appeared on behalf of Consolidated Mortgage, National City Bank and First American Title Company. He argued that MBC had not filed its notice of appeal on time after the April 2009 dismissal, and thus the appeals court lacked jurisdiction. Blanton argued that MBC’s appeal was timely, because the April 2009 dismissal did not trigger the notice deadline. When a final judgment was entered on June 22, the MBC filed a timely notice on June 30.
Eric Walter, attorney for the Windermere corporation, argued that the Cole County case was essentially the same as the Camden County case, and thus the earlier appeal should have ended both cases. Attorney James Gallagher, attorney for two California banks and a Georgia church bond firm, argued that the banks did nothing wrong, and they should not be at risk of losing their loans if MBC were to recover the land.
Presiding Judge Jeffrey Bates asked Blanton whether the MBC was required to bring all its claims in one action in one county. Blanton explained that the claims could not lawfully have been brought in one county. The Cole County case dealt with corporate control, and named the Secretary of State as a defendant, who could only be sued in Cole County. The Camden County case was a “quiet title” action which seeks to determine title to real estate, and by statute such claim must be brought in the county where the land lies, which is Camden County.
Other Judges Don Burrell and Nancy Steffen Rahmeyer also asked questions about the differences between the Cole County claims and the Camden County quiet title action. They quizzed the defense counsel about the fact that the trial judge did not expressly state that his April ruling was “with prejudice,” which is normally required for a final appealable judgment. Defense counsel admitted that was the general rule but they urged the panel to make an exception.
MBC was allowed 15 minutes of argument followed by 15 minutes to be shared by all defendants. Cessna and Walter each took six minutes, and Gallaher took three minutes. Blanton then was allowed five minutes for rebuttal, to respond to all three defense lawyers. At the close of argument, Judge Bates commended all the attorneys for an excellent argument. “Very helpful,” he said. “I wish all our arguments could be this good.”
A written decision by the panel is typically rendered within 2-3 months.
Also attending the oral argument were: Randy Comer, MBC agency recovery group chairman; Michael Whitehead, MBC legal counsel; Larry Johnson, retired Baptist Home CEO; Dan Bench, former Foundation trustee and current director at Windermere corporation; Jim Shoemake, lead attorney for Windermere, Missouri Baptist Foundation, and the Baptist Home; and Jester’s CFO, Jerald Hill, brother of Jim Hill, former MBC executive director.
On Jan. 14, the day before the oral argument, Jester filed a bankruptcy petition for WDC in order to stop a foreclosure sale which had been noticed up by Consolidated Mortgage. (See related story on page 1.) Filing the bankruptcy petition at 2 p.m. had the legal effect of automatically “staying” other civil legal proceedings involving WDC, and thus forced the cancellation of the foreclosure sale.