             In the Missouri Court of Appeals
                     Eastern District
                                        DIVISION FOUR

THOMAS E. HOWARD, JR.,                          )      No. ED101669
JANICE K. HOWARD and                            )
HOWARD INVESTMENTS, LLC,                        )
                                                )
       Appellants,                              )      Appeal from the Circuit Court
                                                )      of St. Louis County
       vs.                                      )      13SL-CC03317
                                                )
THE FROST NATIONAL BANK and                     )      Honorable Tommy W. DePriest, Jr.
TD AMERITRADE, INC.,                            )
                                                )
       Respondents.                             )      Filed: March 24, 2015


       Thomas E. Howard, Jr., Janice K. Howard, and Howard Investments, LLC (collectively

“Appellants”) appeal the trial court’s grant of a motion to dismiss Appellants’ amended petition

for failure to state a claim in favor of TD Ameritrade, Inc. (“Respondent”). Appellants’ amended

petition alleged claims for negligence, wrongful garnishment, and wrongful disclosure arising

out of Respondent’s disclosure of Appellants’ account information and freezing of Appellants’

accounts. We affirm in part and reverse and remand in part.

                                   I.      BACKGROUND

       Thomas Howard and Janice Howard are a married couple, and they are the sole members

and joint owners of Howard Investments, LLC, a Missouri LLC. The Howards are also the

owners of certain brokerage accounts maintained by Respondent.
        In a prior lawsuit, the Frost National Bank (“Frost Bank”) obtained a judgment against

Thomas Howard individually,1 but not against Janice Howard or Howard Investments, LLC.

Subsequently, on May 31, 2013, Frost Bank filed a garnishment action to collect the judgment,

naming Respondent as the garnishee. In the garnishment, Frost Bank gave the following

instructions to Respondent: “ATTACH ALL ACCOUNTS OF DEBTOR, INCLUDING BUT

NOT LIMITED TO ACCOUNT NO. 789-045389” (emphasis in original). The garnishment

listed Thomas Howard as the debtor. In the garnishment, Frost Bank also instructed Respondent

to freeze any accounts associated with the debtor.

        In response to the garnishment action, Respondent filed an interrogatory answer with the

garnishment court that identified four separate accounts. The four accounts identified by

Respondent disclosed the account name, account number, and the account “liquidation value”

(the cash balance presently in the account). Simultaneously, Respondent also froze the four

accounts as instructed by Frost Bank, thereby cutting off Appellants’ use and access to the

accounts.

        Of the four accounts that were identified and frozen by Respondent, one was owned by

Thomas Howard individually, one by Thomas Howard and Janice Howard jointly, one by

Howard Investments, LLC, and one by Thomas Howard and Janice Howard in their capacity as

joint owners of Howard Investments, LLC (the three accounts not owned by Thomas Howard

individually will be collectively referred to as “the three accounts”). Respondent froze the three

accounts for approximately ten days. The value of the three accounts at the time of freezing was

in excess of $3 million.



1
  There were technically two judgment debtors in the underlying lawsuit, Thomas Howard and a trust of which
Thomas Howard was a beneficiary. Because the distinction between the two debtors is not relevant to the issues of
this appeal, we refer only to Thomas Howard individually.

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        Appellants notified Frost Bank and Respondent that they considered the freezing of the

three accounts and their disclosure to the trial court in the garnishment action improper, because

Frost Bank’s judgment was only against Thomas Howard individually. Soon thereafter,

Appellants filed a petition against Frost Bank and Respondent, alleging claims for negligence,

wrongful garnishment, and wrongful disclosure. Appellants settled their claims against Frost

Bank, which is no longer a party to this action. On May 15, 2014, the trial court granted

Respondent’s motion to dismiss Appellants’ amended petition for failure to state a claim upon

which relief can be granted. This appeal followed.

                                        II.     DISCUSSION

        Appellants present three points on appeal. For points one, two, and three, Appellants

assert that the amended petition adequately stated claims for negligence, wrongful garnishment,

and wrongful disclosure, respectively.

A.      Standard of review

        We review a trial court’s grant of a motion to dismiss de novo. Lynch v. Lynch, 260

S.W.3d 834, 836 (Mo. banc 2008). The facts contained in the petition are treated as true and

they are construed liberally in favor of the plaintiffs. Id. The petition states a claim if it sets

forth any set of facts that, if proven, would entitle the plaintiffs to relief. Id. “Missouri is a fact-

pleading state.” Whipple v. Allen, 324 S.W.3d 447, 449 (Mo. App. E.D. 2010). Accordingly,

though a “petition need not plead evidentiary or operative facts showing an entitlement to the

relief sought, it must plead ultimate facts demonstrating such an entitlement.” Id. (quotations

omitted). We disregard conclusions not supported by facts in the context of assessing a motion

to dismiss. Id. at 449-50.




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B.      Negligence

        In their first point on appeal, Appellants assert that the trial court erred in dismissing their

negligence count, because the amended petition pleaded all the essential elements of a

negligence claim. We agree.

        To state a claim for negligence, a plaintiff must allege, (1) the existence of a duty to

conform to a certain standard of conduct to protect others against unreasonable risks; (2) breach

of the duty; (3) proximate causation; and (4) actual damages. Hoover’s Dairy, Inc. v. Mid-

America Dairymen, Inc./Special Products, Inc., 700 S.W.2d 426, 431 (Mo. banc 1985).

        On appeal, as in its motion to dismiss, Respondent only asserts that Appellants did not

adequately plead actual damages. This argument must fail. The amended petition included

multiple allegations of damages proximately caused by Respondent’s disclosure and freezing of

Appellants’ accounts. Specifically, the amended petition alleged that, (1) Appellants’ private

financial information was disclosed to the public; (2) when Appellants repeatedly attempted to

use their accounts, they were barred from accessing over $3 million in assets specifically held for

investment purposes for a period of ten days, and as a result were prohibited from making any

investment trades during that time; and (3) Respondent disclosed that Appellants had assets in

excess of $3 million to Appellants’ opponent in the underlying lawsuit, Frost Bank, at a time

when Appellants and Frost Bank were negotiating a settlement and the disclosure affected the

settlement value of that case.

        Appellants need not quantify the exact amount of their damages in their amended petition

in order to survive a motion to dismiss. In fact, Missouri Supreme Court Rule 55.19 (2014)

specifically prevents a petition based on an alleged tort2 from including a dollar amount in the


2
 A claim for negligence sounds in tort. See Murphy v. Missouri Power & Light Co., 214 S.W.2d 742, 743 (Mo.
App. 1948).

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demand. Appellants pleaded that the freezing of the accounts prevented them from making stock

trades they attempted to make. The specific nature of these trades and any financial loss caused

by the inability to make them must be investigated in the discovery portion of the lawsuit. This

is also true of the disclosure’s effect on the settlement value of the underlying lawsuit; discovery

is required to determine the extent of the damages. In each instance, the allegation of harm,

along with the other elements of the cause of action which are not contested, is sufficient to

survive a motion to dismiss. We treat the facts alleged in the petition as true and construe them

liberally in favor of the plaintiffs. Lynch, 260 S.W.3d at 836. The amended petition has stated a

claim, because if Appellants prove the facts it sets forth, they would be entitled to relief. See id.

       The trial court erred in dismissing the amended petition’s negligence claim, because it

stated all the elements of the cause of action. Point one is granted.

C.     Wrongful garnishment

       In their second point on appeal, Appellants assert that the trial court erred in dismissing

their wrongful garnishment count, because the amended petition pleaded all the essential

elements of a wrongful garnishment claim. We disagree.

       The parties disagree as to whether wrongful garnishment is a cognizable cause of action

in Missouri. Respondent contends that wrongful garnishment must be pleaded as a malicious

prosecution or an abuse of process claim. However, as Appellants indicate, multiple Missouri

cases have allowed the cause of action in the past. See Boone v. Lou Budke’s Arrow Finance

Co., Inc., 98 S.W.3d 555, 557 (Mo. App. E.D. 2002); Thomas Berkeley Consulting Engineer,

Inc. v. Zerman, 911 S.W.2d 692, 697 (Mo. App. E.D. 1995); Pinkstaff v. Hill, 827 S.W.2d 747,

749, 753 (Mo. App. W.D. 1992).




                                                  5
       In order to state a claim for wrongful garnishment, a plaintiff must allege that the

garnished property is his property and also must allege abuse or misuse of the garnishment

statute. Linsin v. Transportation Ins. Co., 691 S.W.2d 393, 394-95 (Mo. App. E.D. 1985).

Appellants have not alleged any abuse or misuse of the garnishment statute by Respondent.

Under the facts alleged, Frost Bank, not Respondent, filed the garnishment action, and

Respondent has not initiated any legal action against Appellants. In each case cited by

Appellants, the creditor, as the originator of the garnishment, served as the defendant. See

Boone, 98 S.W.3d at 556; Zerman, 911 S.W.2d at 694; Pinkstaff, 827 S.W.2d at 749. Appellants

identify no controlling case law allowing a claim for wrongful garnishment against the garnishee

rather than the creditor.

       Because Respondent did not file a garnishment against Appellants, the trial court did not

err in dismissing Appellants’ wrongful garnishment claim. Point two is denied.

D.     Wrongful disclosure

       In their third and final point on appeal, Appellants assert that the trial court erred in

dismissing their wrongful disclosure claim, because the amended petition pleaded all the

essential elements of a wrongful disclosure cause of action. Specifically, Appellants contend

that the amended petition stated a claim for relief under the Gramm-Leach-Bliley Act, 15 U.S.C.

section 6801 (2010), et seq. (“GLBA”), which prevents financial institutions from releasing

private customer information. Further, Appellants argue that the amended petition stated a claim

for invasion of privacy. We disagree.

       First, the privacy provisions of the GLBA do not establish a private cause of action for

consumers. Dunmire v. Morgan Stanley DW, Inc., 475 F.3d 956, 960 (8th Cir. 2007). As such,

Appellants may not state a claim for relief pursuant to this statute as a matter of law.



                                                  6
        We next turn to Appellants assertion that their amended petition stated a claim for

common law invasion of privacy. The tort of invasion of privacy actually consists of four

separate causes of action, (1) intrusion on the plaintiff’s seclusion or private affairs; (2) public

disclosure of embarrassing private facts; (3) publically placing plaintiff in a false light; and (4)

the appropriation of plaintiff’s name or likeness. St. Anthony’s Medical Center v. H.S.H., 974

S.W.2d 606, 609 (Mo. App. E.D. 1998). The first and second causes of action, intrusion on

seclusion and public disclosure of embarrassing private facts, are the only causes of action

relevant in this case.

        Intrusion on seclusion requires that the defendant obtain the information in question by

unreasonable means. Id. at 609-10. Under the facts as alleged, Appellants have not pleaded that

Respondent obtained their financial information through such unreasonable means, as Appellants

themselves disclosed it to Respondent in the context of their financial relationship.

        Similarly, pleading public disclosure of embarrassing private facts requires that the

defendant have acted “so as to bring shame or humiliation to a person of ordinary sensibilities.”

See Y.G. v. Jewish Hosp. of St. Louis, 795 S.W.2d 488, 498-99 (Mo. App. E.D. 1990).

Respondent disclosed that Appellants had over $3 million in assets available to them in their

investment accounts. Nowhere in their amended petition do Appellants allege that such

disclosure would bring shame or humiliation to a person of ordinary sensibilities, nor could they

reasonably do so.

        Appellants have not stated a claim for wrongful disclosure under the GLBA, for intrusion

on seclusion, or for public disclosure of embarrassing private facts. Point three is denied.




                                                   7
                                   III.    CONCLUSION

       The portion of the trial court’s judgment granting Respondent’s motion to dismiss

Appellants’ negligence claim is reversed and remanded for proceedings consistent with this

opinion. The portion of the trial court’s judgment granting Respondent’s motion to dismiss

Appellants’ wrongful garnishment and wrongful disclosure claims is affirmed.




                                                   ROBERT M. CLAYTON III, Judge

Patricia L. Cohen, P.J., and
Roy L. Richter, J., concur.




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