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Dismissal sought in Branson Hills lawsuit

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by Paul Flemming

SBJ Staff

First American Title Insurance Co. April 17 sought dismissal of a $400 million suit filed against it by Branson Hills Associates LP, saying in court papers that the lawsuit fails in each of its counts to meet legal standards to make a claim against First American.

"Plaintiff's claims each lack an essential element and, therefore, plaintiff's petition does not state a claim upon which relief can be granted," said First American's motion to dismiss.

If the Greene County Circuit Court suit is not dismissed completely, the motion asks that claims against the title insurance company be dismissed.

The lawsuit was initially filed in January. The suit was not served on defendants until March and April, court records showed. It names First American, Hogan Land and Title Company and Cliff Politte as defendants.

The original suit said "At all times material hereto, defendant First American acted by and through its duly authorized agents, Hogan, Keith Chaffin and Cliff Politte." First American's motion to dismiss disputes this.

In January 1996, Branson Hills Associates was set to close on a $16.4 million sale of its portion of about 1,400 acres of land in a Branson housing and resort development.

The $26.5 million deal did not go through when funds purported to be held in escrow were revealed to be bogus. The Federal Bureau of Investigation continues to investigate the case.

John Swanson, the prospective buyer, had presented the bogus check to Hogan, the suit said, and Politte, a Hogan employee, wrote a letter to BHA officials assuring them that the funds for the sale were on hand, the suit said.

In its argument for dismissal, First American's motion made five points arguing that there is no basis for claims against First American. The motion said:

?Employees of Hogan are not alleged to have acted within their scope of employment for First American.

"Not only has (BHA) not alleged in what capacity any of the purported agents of First American were employed, it has not alleged that any of them performed any acts in the scope of their employment with First American with regards to this alleged transaction," said suggestions filed by First American's attorneys.

?The suit fails to allege that any agent of First American did anything to further a purported conspiracy.

BHA "has baldly declared that 'defendants' in this case agreed with two other persons who are strangers to this suit to make false representations to (BHA) in order to induce it to enter into a contract," First American's suggestions said, referring to Swanson and a Branson real estate agent who are not defendants. First American said further that it is impossible to tell from the suit who is supposed to be involved in the alleged conspiracy.

?No First American agent or representative "made any statements, whatsoever" to BHA, either false or otherwise.

?BHA does not present facts to support the case that it had a right to rely on First American's "integrity, expertise and financial strength" as alleged in the suit. The title insurance company's filings said the allegations did not meet the legal standard for BHA to have relied on First American

?No contract with First American is provided in evidence. Court filings said the suit failed to allege who might have entered into a contract nor did the suit provide any information about whether the contract was oral or written.

In further court documents filed April 20 by First American, the company asks that portions of the original suit naming specific dollar amounts and attorneys' fees be stricken from the record, because they are contrary to court rules. Another motion asks the court to require BHA be more definite and particular in all its charges.

And First American also sought a court order to make BHA provide adequate security for costs in the suit.

First American was served in the suit March 20 through Missouri's director of insurance. Court documents showed Hogan was served April 9. Officials with Hogan said its attorneys were preparing answers to the suit, which are not due until 30 days after service.

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