EDWARD JONES TRUST COMPANYAND ANNA GROSS AS CO TRUSTEES OF THE LAWRENCE GROSS AND ANNA GROSS JOINT REVOCABLE TRUST DECEMBER 31 2019 AND AS CO TRUSTEES OF THE ANNA GROSS SURVIVOR TRUST DATED JUNE 2021 v. MICHAEL WILCOX ET AL (2026)

Michael E. Wilcox, Jean L. Wilcox, Amy Wilcox-Burns, and Ryan Burns (“Appellants”) appeal from the Circuit Court of Boone County's (“trial court”) grant of summary judgment in favor of Edward Jones Trust Company and Anna C. Gross, as Co-Trustees of the Lawrence R. Gross and Anna C. Gross Joint Revocable Trust U/A/D December 31, 2019, and as Co-Trustees of the Anna C. Gross Survivor's Trust (“Respondents”) on Respondents’ petition against Appellants for breach of their guaranty related to a promissory note.

On appeal, Appellants argue the trial court erred in: (1) finding a standby creditor's agreement and subordination agreement in which Respondents’ predecessors in interest agreed to subordinate their loan to the senior lender did not prohibit this action against Appellants pursuant to their guaranty on the subordinate loan; and (2) concluding the standby creditor's agreement and subordination agreement were not properly authenticated. Appellants further allege the trial court lacked jurisdiction to enter summary judgment because Respondents failed to add the senior lender as a necessary party pursuant to Rule 52.04.¹ Finding no error, we affirm.

Factual and Procedural Background 2

Wilcox Properties of Columbia, LLC (“Wilcox Properties”) executed a Promissory Note dated August 1, 2001, (“Original Note”) under which Wilcox Properties agreed to pay the principal amount of $700,000 plus interest as described in the Original Note to Candle Light Lodge, Inc. (the “Original Noteholder”).³ The sole shareholder of Original Noteholder was Larry R. Gross, an individual and the husband of Anna C. Gross.⁴

In conjunction with the execution of the Original Note, Appellant Michael E. Wilcox, Appellant Jean L. Wilcox, Norman G. Wilcox, and Kathy Wilcox (“Original Guarantors”), individual members of Wilcox Properties, guaranteed any and all future debts, liabilities, and obligations of Wilcox Properties resulting from the Original Note by executing and delivering to Original Noteholder a continuing and irrevocable Guaranty (“Guaranty”). The Guaranty provided that the Original Guarantors guaranteed to pay to Original Noteholder, on demand, any indebtedness as defined in the Guaranty, including all amounts due under the Original Note. The Guaranty further provided that it was a continuing guaranty and included any indebtedness that may arise after the date of the Guaranty pursuant to any modification or amendment of the Original Note to which Original Noteholder and Wilcox Properties agreed.

On November 30, 2017, Wilcox Properties executed an amended and restated promissory note (“Amended Note”),⁵ under which Wilcox Properties agreed to pay the principal amount of $658,365.20, plus interest, as described in the Amended Note, to Larry R. Gross (the then holder of the Original Note) and his wife, Anna C. Gross as tenants by the entirety—making Larry R. Gross and Anna C. Gross the holders of the Amended Note.

Additionally, on November 30, 2017, Wilcox Properties, Larry R. Gross, Anna C. Gross, Michael E. Wilcox, Jean L. Wilcox, Amy Wilcox-Burns and Ryan Burns executed a promissory note modification agreement, which provided: (1) the rights to the Amended Note would be assigned to Larry R. Gross and Anna C. Gross as tenants by the entirety; and (2) two of the Original Guarantors, Norman G. Wilcox and Kathy Wilcox, would be replaced with two new members of Wilcox Properties, Amy Wilcox-Burns and Ryan Burns (Amy Wilcox-Burns and Ryan Burns, together with Michael E. Wilcox and Jean L. Wilcox, the “New Guarantors” and “Appellants”).⁶ The Guaranty executed in conjunction with the Original Note was incorporated by reference into the promissory note modification agreement, and the New Guarantors signed the promissory note modification agreement.⁷

On December 1, 2017, Larry R. Gross and Anna C. Gross (predecessors in interest to Respondents) entered into two agreements with American National Bank—a subordination agreement and a standby creditor's agreement. The subordination agreement stated that Wilcox Properties sought to borrow a sum of money from American National Bank and American National Bank would not loan the required funds to Wilcox Properties unless Larry R. Gross and Anna C. Gross agreed to subordinate their promissory note with Wilcox Properties to the American National Bank loan.

The standby creditor's agreement provided that Wilcox Properties owed $658,365.20 principal and $0.00 interest to Larry R. Gross and Anna C. Gross, and to induce American National Bank to make a Small Business Administration guaranteed loan to Wilcox Properties, Larry R. Gross and Anna C. Gross agreed “[t]o accept interest only payments at the rate of 10.00% per annum (no principal payments) on Standby Loan until [American National Bank's] Loan is satisfied or until notified by [American National Bank] to stop accepting payments.” The standby creditor's agreement further provided that Larry R. Gross and Anna C. Gross would “take no action to enforce claims against [Wilcox Properties] on the Standby Loan [i.e. the Amended Promissory Note] until [American National Bank's] Loan is satisfied” and “take no action against [Wilcox Properties’] collateral, without written consent from [American National Bank], until [American National Bank's] Loan is satisfied.”⁸

On July 1, 2020, Larry R. Gross and Anna C. Gross assigned their interest in the Amended Note to the Lawrence R. Gross and Anna C. Gross Joint Revocable Trust (“Revocable Trust”). On September 28, 2021, following the death of Larry R. Gross, the Edward Jones Trust Company agreed to serve as co-trustee of the Revocable Trust, along with Anna C. Gross. On March 30, 2022, Anna C. Gross and the Edward Jones Trust Company assigned an undivided one-half interest of the revocable trust's interest in the Amended Note to Anna C. Gross and the Edward Jones Trust Company, co-trustees of the Anna C. Gross Survivor's Trust (“Survivor's Trust”). Following this assignment, the Revocable Trust and the Survivor's Trust each held an undivided one-half interest in the Amended Note (the Edward Jones Trust Company and Anna C. Gross, as Co-Trustees of the Revocable Trust and the Survivor's Trust, together “Respondents”).

In May 2023, Wilcox Properties failed to make payments under the Amended Note. On May 9, 2023, Respondents made demand on each of the Appellants (the New Guarantors) for the amounts due pursuant to the Guaranty. On May 26, 2023, Respondents filed suit against Appellants, seeking $691,283.48, plus interest thereon from May 2, 2023, and their costs of collection, including attorney's fees as provided for in the Guaranty. Respondents moved for summary judgment on August 30, 2024. Respondents alleged that the uncontroverted material facts demonstrated that Wilcox Properties had defaulted on its obligations under the Amended Note and Appellants had failed “to satisfy their obligations under the Guaranty to pay the sums owed to [Respondents]” as successors-in-interest to the Original Noteholder. Appellants filed a cross-motion for summary judgment, arguing Respondents’ action failed to state a claim upon which relief could be granted because Respondents’ predecessors in interest, through the standby creditor's agreement and subordination agreement, had subordinated the Amended Promissory Note to American National Bank's loan, which had not yet been satisfied. Appellants alleged that, under the standby creditor's agreement and subordination agreement, Respondents could not bring an action under the Guaranty prior to the satisfaction of American National Bank's loan.

Respondents countered, arguing: (1) this argument was rooted in an affirmative defense that had not been properly pleaded and, as such, had been waived; (2) the standby creditor's agreement and subordination agreement were not properly authenticated; (3) Appellants, who were not parties to the standby creditor's agreement or subordination agreement, lacked standing to present the agreements to the trial court; and (4) the standby creditor's agreement and subordination agreement only precluded Respondents from enforcing claims against the “Standby Borrower” (Wilcox Properties) and did not bar them from bringing a collection action against the Appellants—guarantors of the Amended Promissory Note.

The trial court observed that Appellants did not genuinely rebut the facts established by Respondents but rather argued that Appellants should not be liable to Respondents as guarantors because the standby creditor's agreement and subordination agreement precluded Respondents from pursuing Appellants as guarantors of the Amended Promissory Note prior to the satisfaction of American National Bank's loan. The trial court concluded it need not rule on Respondents’ evidentiary objection to the agreements to reach its determination as “the language of the Standby Agreement [was] plain and unambiguous.”⁹

The trial court found the “[standby creditor's agreement and subordination agreement] govern only the relationship between the parties to those agreements, i.e., the original noteholder [predecessors in interest to Respondents] and non-party American National Bank.” Because Appellants (the Guarantors of the Amended Promissory Note) were not a party to the standby creditor's agreement and subordination agreement nor a third-party beneficiary to the agreements, the trial court found the agreements did not restrict Respondents from any actions against the New Guarantors (Appellants) or against the Guaranty because such action was not expressly covered in the agreements. Rather, the standby creditor's agreement and subordination agreement limited only actions that Respondents may take against the standby borrower (Wilcox Properties) and actions to collect on the Standby Loan (i.e. the Amended Promissory Note), not actions to collect on the Guaranty. Accordingly, the trial court concluded Appellants’ liability as guarantors was separate and distinct from the borrower's (Wilcox Properties) liability, and Respondents’ claims were not barred by the standby creditor's agreement and subordination agreement. The trial court entered judgment in favor of Respondents in the amount of $832,831.96.¹⁰

This appeal follows.

Standard of Review

“We review the grant of summary judgment de novo.” Malin v. Mo. Ass'n of Cmty. Task Forces, 669 S.W.3d 315, 320 (Mo. App. W.D. 2023). Summary judgment is appropriate when “there is no genuine issue as to any material fact and ․ the moving party is entitled to judgment as a matter of law.” Rule 74.04(c)(6). “The Court reviews the record in the light most favorable to the party against whom judgment was entered, and gives the non-movant the benefit of all reasonable inferences from the record.” Estes ex rel. v. Bd. of Trs. of Mo. Pub. Entity Risk Mgmt. Fund, 623 S.W.3d 678, 686 (Mo. App. W.D. 2021). “We will affirm the trial court's granting of summary judgment if it is correct as a matter of law on any grounds.” Malin, 669 S.W.3d at 321.

“The interpretation of a contract is a question of law which we review de novo.” Belton Chopper 58, LLC v. N. Cass Dev., LLC, 496 S.W.3d 529, 532 (Mo. App. W.D. 2016). “The cardinal rule in interpreting a contract is to ascertain the intent of the parties and to give effect to that intent.” Cheek v. Cheek, 669 S.W.3d 155, 159 (Mo. App. E.D. 2023). “As with all questions of contract interpretation, this Court first attempts to ascertain the intent of the parties by looking at the words of the contract, giving those words their plain, ordinary, and usual meaning.” Id. “We determine the parties’ intent based upon the contract language alone unless its terms are ambiguous.” Id. “Where the terms of the contract are clear, this Court does not supply additional terms, but applies the agreement as written.” Devino v. Starks, 132 S.W.3d 307, 312 n.4 (Mo. App. W.D. 2004).

Analysis

Appellants bring four points on appeal. Appellants do not argue that material facts in dispute precluded the entry of summary judgment in favor of Respondents. Indeed, Appellants do not dispute that the uncontroverted facts establish that: (1) Appellants executed the Guaranty; (2) Appellants unconditionally delivered the Guaranty to the noteholder (Respondents’ predecessor in interest); (3) the Original Noteholder, in reliance on the Guaranty, extended a loan to Wilcox Properties; and (4) there is an amount of principal and interest currently due and owing on the note (the Amended Promissory Note), which is covered by the Guaranty.¹¹ Instead, Appellants argue that despite these uncontroverted facts, the entry of summary judgment in favor of Respondents was not proper as a matter of law.

Appellants’ first point asserts that the trial court erred in ruling that the standby creditor's agreement and subordination agreement were not properly before the court as evidence. In Points II and III, Appellants argue the trial court erred in granting summary judgment in favor of Respondents because the standby creditor's agreement and subordination agreement prohibit Respondents from bringing its claims against Appellants until American National Bank's loan is satisfied. In Point IV, Appellants argue the trial court erred in entering summary judgment because the court lacked the jurisdiction to do so by “fail[ing] to add American National Bank, the Standby Creditor, as a party required to be joined” pursuant to Rule 52.04(c).

Because our resolution of Points II and III reaches the merits of Appellants’ arguments regarding the applicability of the standby creditor's agreement and subordination agreement, we address Points II and III first.

Point II and Point III

In Point II, Appellants argue the standby creditor's agreement and subordination agreement “legally obligate Respondents not to bring its claims against Appellant until” American National Bank, the beneficiary of the standby creditor's agreement and subordination agreement, is paid in full. In Point III, Appellants contend the trial court erroneously interpreted the agreements “as having no requirements as to [Respondents’] collection claims against the Appellants.” In sum, both points allege that the standby creditor's agreement and subordination agreement barred Respondents from bringing claims against Appellants as guarantors of the Standby Loan (i.e. the Amended Promissory Note) until satisfaction of American National Bank's loan.

Appellants’ arguments rely on a mistaken construction of the standby creditor's agreement. Appellants assert that the plain language of paragraph seven of the standby creditor's agreement “states clearly” that the agreement applies to guarantors (i.e. Appellants) of the standby creditor's (Respondents) loan (the Amended Promissory Note) and prevents Respondents from bringing action against both Wilcox Properties and Appellants before American National Bank's loan is satisfied. Paragraph seven, in its entirety, provides: “This Agreement applies to any successor to the Standby Creditor or assignee of this Agreement or of Standby Creditor's Loan, including any bankruptcy trustee or receiver or guarantors or sureties of Standby Creditor Loan.” (Emphasis added). A plain reading of this language demonstrates that the standby creditor's agreement applies to either: (1) a “successor to the Standby Creditor” (in this case, Respondents); or (2) an “assignee of this Agreement or of Standby Creditor's Loan.” Grisham v. Mission Bank, 531 S.W.3d 522, 537 (Mo. App. W.D. 2017) (“The first step in interpreting a contract is to ascertain the intent of the parties by looking at the words of the [contract] and giving those words their plain, ordinary and usual meaning.”) (internal quotations omitted)).

Appellants attempt to construe the reference to “guarantors” in paragraph seven as encompassing guarantors to the standby loan (i.e. Appellants, guarantors of the Amended Promissory Note). This construction ignores the clear structure and meaning of the provision.¹² The provision in the standby creditor's agreement that references “guarantors” or “sureties” modifies “successor” or “assignee” and, thus, refers to guarantors or sureties who are successors to the Standby Creditor or assignees of the agreement or the Standby Creditor's loan and not, as Appellants attempt to argue, guarantors to the standby loan (the Amended Promissory Note). Here, there is no guarantor or surety that is a successor to the Standby Creditor or an assignee of the standby creditor's agreement or the loan. Because Appellants are neither a successor to the standby creditor or assignee of either the standby creditor's agreement or the loan, the standby creditor's agreement, plainly, does not apply to them.¹³

This reasoning is consistent with cases from other jurisdictions interpreting substantially similar language in standby creditor's agreements. See Apex Pharmacy & Home Care Ctr., LLC v. Parupalli, No. HHD-CV21-6148309-S, 2023 WL 2386264, at *3 (Conn. Super. Ct. Mar. 2, 2023) (“Specifically, the court concluded that ‘[p]aragraph three [of the standby creditor's agreement] only bars the plaintiffs from enforcing claims against [the standby borrower] on the [standby loan] until the SBA [l]oan has been satisfied. That paragraph does not say that the plaintiffs are similarly barred from proceeding against the [defendants/guarantors of the standby loan]․ Paragraph seven does not, as the defendants contend, prohibit action against the [defendants/guarantors] until the SBA [l]oan has been satisfied.”); Janak Corp. v. Shree Hari Harshketu Corp., 2013 WL 1844740, at *4 (N.J. Super. Ct. App. Div. May 3, 2013) (“Here, the ‘no action’ provisions in the various loan documents are clear and unambiguous as to their applicability. By their express terms, the ‘no action’ provisions create a condition precedent solely as to Borrower, as the trial court properly found. Accordingly, plaintiff was barred from taking action against Borrower until such time as plaintiff obtained TD Bank's consent to do so. However, no such condition precedent existed limiting plaintiff's right to proceed against the defendants individually, as guarantors.”) (emphasis added).¹⁴

Moreover, the instant lawsuit is based on the Guaranty executed in conjunction with the Original Note and incorporated by reference in the promissory note modification agreement signed by Appellants. Pursuant to the standby creditor's agreement, Respondents are barred from taking action to enforce claims against Wilcox Properties prior to the satisfaction of American National Bank's loan. The standby creditor's agreement does not, however, similarly bar Respondents from taking action against Appellants pursuant to the Guaranty, which would be a separate and distinct agreement from the standby creditor's agreement and is not referenced in either the standby creditor's agreement or the subordination agreement. Indeed, the language of the Guaranty provides:

The obligations of Guarantors hereunder are joint and several, and are totally independent of the obligations of Borrower. A separate action or actions may be brought and prosecuted against Guarantors, or any of them, or any one of them, whether or not an action is brought against Borrower or any of the others of Guarantors, or whether Borrower or any of the others of Guarantors be joined in any such action or actions.

We find the language of the standby creditor's agreement is clear and unambiguous. Metrc, LLC v. Steelman, 617 S.W.3d 472, 481 (Mo. App. W.D. 2021) (“If, using the plain and ordinary meaning, the language is unambiguous, we may not resort to rules of construction to interpret the contract.”). In the standby creditor's agreement, predecessors to Respondents agreed to “take no action against Standby Borrower [Wilcox Properties] on the Standby Loan [Amended Promissory Note] until Lender's Loan is satisfied” and to “take no action” against Wilcox Properties’ collateral “without written consent from the Lender, until Lender's Loan is satisfied.” Accordingly, Respondents could not, and did not, bring a collection action against Wilcox Properties based on their default on the Amended Promissory Note. But the plain language of the standby creditor's agreement and the subordination agreement does not bar Respondents from bringing an action against Appellants—the New Guarantors—pursuant to the Guaranty. “This court cannot make a contract for the parties they did not make or impose upon them obligations not assumed in the contract.” Devino v. Starks, 132 S.W.3d 307, 312 n.4 (Mo. App. W.D. 2004).

Points II and III are denied.¹⁵

Point IV

In Point IV, Appellants contend the trial court lacked jurisdiction to enter summary judgment because Respondents failed to add American National Bank as a party required to be joined pursuant to Rule 52.04(c). This argument, however, is not preserved for our review as Appellants never alleged that an indispensable party had not been joined while this matter was pending in the trial court. “It is well recognized that a party should not be entitled on appeal to claim error on the part of the trial court when the party did not call attention to the error at trial and did not give the court the opportunity to rule on the question.” Brown v. Brown, 423 S.W.3d 784, 787 (Mo. banc 2014). “This requirement is intended to eliminate error by allowing the trial court to rule intelligently and to avoid the delay, expense, and hardship of an appeal and retrial.” Id. at 787-88 (internal quotations omitted).

Appellants, nevertheless, argue “[t]he failure to join a necessary party to a lawsuit need not be asserted in the trial court and the well-settled law in this state is that it can be addressed by the appellate court for the first time on appeal.” Appellants further contend that Rule 52.04 is jurisdictional, and the trial court's failure to name a necessary party “deprives the court of its jurisdiction over the matter in question.” We recognize that older Missouri courts have previously found the presence of all indispensable parties to be a jurisdictional requirement. Williams Pipeline Co. v. Allison & Alexander, Inc., 80 S.W.3d 829, 837 (Mo. App. W.D. 2002) (“The question of whether there has been a failure to join a necessary and indispensable party under Rule 52.04 is jurisdictional.”); State ex rel. Mayberry v. City of Rolla, 970 S.W.2d 901, 909 (Mo. App. S.D. 1998) (“Failure to join a necessary party is a defect that may be raised at any stage of the proceedings, even on appeal.).

These cases, however, are “suspect” in light of J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009). Albu Farms, LLC v. Pride, 685 S.W.3d 468, 486 (Mo. App. W.D. 2023) (vacated on other grounds, No. WD 85494, 2024 WL 3559959 (Mo. App. W.D. Apr. 3, 2024)). Webb held that there are only two forms of jurisdiction: personal jurisdiction and subject matter jurisdiction. 275 S.W.3d at 252-53. Personal jurisdiction “refers quite simply to the power of a court to require a person to respond to a legal proceeding that may affect the person's rights or interests.” Id. at 253. “Subject matter jurisdiction, in contrast to personal jurisdiction, is not a matter of a state court's power over a person, but the court's authority to render a judgment in a particular category of case.” Id. Subject matter jurisdiction of Missouri's courts is set forth in Article V, section 14 of the Missouri Constitution, providing “[t]he circuit courts shall have original jurisdiction over all cases and matters, civil and criminal.”

Webb further held the concept of “jurisdictional competence,” which had been confused with subject matter jurisdiction, “does not in fact implicate the court's constitutional authority to decide a matter and at most implicates whether the court has exceeded its statutory or other authority to render a particular judgment in a particular case subjecting the error to routine appellate review.” Albu Farms, LLC, 685 S.W.3d at 486. “A claim that an indispensable party has not been joined in an action does not implicate a trial court's subject matter jurisdiction to entertain or decide the action.” Id. (Emphasis added); see also U.S. Bank, N.A. v. Coverdell, 483 S.W.3d 390, 399 (Mo. App. S.D. 2015) (expressing “skepticism” about the appellants’ claim that “the absence of a necessary and indispensable party on appeal” is jurisdictional and may be raised at any time “in light of our supreme court's more recent view of what is beyond a trial court's ‘jurisdiction.’ ”).¹⁶

Nevertheless, even if Appellants had properly preserved this claim for our review, Appellants would not be entitled to relief as American National Bank is not a necessary party. “A party must first be found necessary to a lawsuit before we consider whether that party is indispensable.” State Conf. of Nat'l Ass'n for Advancement of Colored People v. State, 563 S.W.3d 138, 150 (Mo. App. W.D. 2018).¹⁷ Rule 52.04 governs when a party should be added to ensure a complete adjudication among all proper parties, providing that a person may be considered a necessary party if:

A person shall be joined in the action if: (1) in the person's absence complete

relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.

“In a suit on a contract by one of the parties to that contract, the only defendants required are (1) the other parties to the contract sued on and (2) those who have an interest in the dispute which will be affected by the action.” State ex rel. Woodco, Inc. v. Phillips, 603 S.W.3d 873, 876 (Mo. banc 2020) (internal quotations omitted).

Respondents brought suit against Appellants based on Appellants’ failure to pay the amounts due to Respondents under the Guaranty after Wilcox Properties’ default on the Amended Promissory Note. American National Bank is neither a party to the Guaranty— the contract sued on—nor the Amended Promissory Note.

Appellants, nonetheless, allege the trial court's judgment “impaired and impeded American National Bank's ability to protect their interest by disregarding their subordination rights.” This argument misconstrues both the trial court's judgment and the relevant contracts. The trial court did not disregard American National Bank's subordination rights. American National Bank has an agreement—the standby creditor's agreement and subordination agreement—with Respondents that its loan to Wilcox Properties has priority over Respondents’ loan to Wilcox Properties. In accordance with that agreement, Respondents have not taken action against Wilcox Properties to enforce claims against Wilcox Properties on the Amended Promissory Note prior to the satisfaction of American National Bank's loan. However, as explained above, the standby creditor's agreement and subordination agreement to which American National Bank is a party are inapplicable here as they do not implicate Appellants as guarantors and, accordingly, do not impact Respondents’ rights to collect on the Guaranty.¹⁸ American National Banks rights under the standby creditor's agreement and subordination agreement remain unchanged.

Point IV is denied.

Conclusion

The judgment of the trial court is affirmed.

FOOTNOTES

1.   All rule references are to the Missouri Supreme Court Rules (2025) unless otherwise indicated.

3.   Respondents are successors in interest to the Original Noteholder.

4.   Larry R. Gross, as the sole shareholder, president, and director of Original Noteholder, dissolved the Original Noteholder corporation in 2004, and Larry R. Gross replaced the Original Noteholder as holder of the Note.

5.   In Appellants’ response to Respondents’ statement of uncontroverted facts, Appellants denied that the Amended Note and promissory note modification agreement were entered on November 30, 2017, and instead alleged the documents were executed December 1, 2017. Both the Amended Note and promissory note modification agreement, however, state that the agreements were effective November 30, 2017.

6.   Norman G. Wilcox and Kathy Wilcox were no longer members of Wilcox Properties. Accordingly, the parties agreed that the two new members of Wilcox Properties, Amy Wilcox-Burns and Ryan Burns, would replace Norman G. Wilcox and Kathy Wilcox as guarantors.

7.   The New Guarantors additionally signed an “approval of and consent to promissory note by guarantors” page accompanying the Amended Note.

8.   The standby creditor's agreement contained a provision stating: “This Agreement applies to any successor to the Standby Creditor or assignee of this Agreement or of Standby Creditor's Loan, including any bankruptcy trustee or receiver or guarantors or sureties of Standby Creditor Loan.”

9.   The trial court found that Appellants’ argument that Respondents failed to state a claim upon which relief may be granted was waived because Appellants provided no facts in support of this defense in their answer pursuant to Rule 55.08 and did not provide such facts until their response to Respondents’ motion for summary judgment.

10.   The trial court stated that as of January 31, 2025, the amount of interest that had accrued on the outstanding principal was $174,466.76, bringing the total amount at issue to $832,831.96.

11.   “For Holder to recover on a contract of guaranty, he must show that: (1) Guarantor executed the Guaranty; (2) Guarantor unconditionally delivered the Guaranty to Holder; (3) Holder, in reliance on the Guaranty, thereafter extended credit to the debtor; and (4) there is currently due and owing some sum of money from the debtor to Holder that the Guaranty purports to cover.” Am. First Fed., Inc. v. Battlefield Ctr., L.P., 282 S.W.3d 1, 4 (Mo. App. E.D. 2009).

12.   In fact, Appellants cherry-pick their quotation of paragraph seven and state that the standby creditor's agreement “applies to ․ guarantors or sureties of the Standby Creditor Loan,” crucially omitting the language that the agreement applies “to any successor to the Standby Creditor or assignee of this Agreement or of Standby Creditor's Loan, including ․ guarantors.” (Emphasis added).

13.   We also reject Appellants’ assertion that they are third-party beneficiaries of the standby creditor's agreement and subordination agreement. “The rights of a third-party beneficiary depend on the terms of the contract itself.” Hilliker Corp. v. Watson Prop., LLC, 667 S.W.3d 117, 121 (Mo. App. E.D. 2022). “The beneficiary does not need to be named in the contract, but the terms of the agreement must clearly and directly express an intent to benefit an identifiable person or class.” Id.There is nothing in the standby creditor's agreement or the subordination agreement to support the contention that the parties to the agreements intended to benefit Appellants. Rather, the express purpose of the standby creditor's agreement was to “induce American National Bank (Lender) to make an SBA guaranteed loan to Standby Borrower [Wilcox Properties] or guaranteed by Standby Borrower[.]” See Shawn Ibrahim, Inc. v. Houston-Galveston Area Loc. Dev. Corp., 582 S.W.3d 753, 770 (Tex. App. 2019) (concluding that a standby creditor's agreement “was intended to benefit [the senior creditor.]”).

14.   Appellants cite a federal district court case to support the proposition that the reference to “guarantors” in the standby creditor's agreement included guarantors of the standby loan. Tuna Fam. Mgmt Inc. v. All Tr. Mgmt. Inc., No. 20-14017-CIV-SMM, 2022 WL 2257008, at *15 (S.D. Fla. June 22, 2022) (explaining “[t]he Standby Creditor's Agreement, which is only two pages long, states clearly in paragraph 7 that ‘[t]his Agreement applies to ․ guarantors or sureties of Standby Creditor Loan’ ” and, as such, the agreement prohibited the plaintiffs from taking action against the borrower and guarantors prior to the satisfaction of the senior loan). In Tuna Family Management, however, all parties to the standby agreement were parties in the lawsuit, and the plaintiff sued both the borrower on the promissory note and the guarantors on the guaranty in the same action in contravention of the standby creditor's agreement. Id. at *6, 15. Further, the court questioned whether its own interpretation of the agreement was correct, noting that, “The provision regarding ‘guarantors or sureties,’ follows language referring to any ‘successor’ or ‘assignee’ of the Standby Creditor or Standby Creditor's loan including guarantors or sureties. Therefore, the provision may arguably refer to guarantors or sureties that become successors or assignees.” Id. at *15 n.9. Nonetheless, the court stated that the “the transaction viewed as a whole indicate[d] that the parties intended that the Standby Creditor's Agreement would limit Plaintiffs’ ability to pursue collection” of the standby loan without the lender's consent before the lender's loan was satisfied. Id.Moreover, although Appellants assert that we “must consider and apply” Tuna Family Management, “[t]his Court is not bound by the decisions of federal district courts.” Fogelsong v. Joe Machens Auto. Grp. Inc., 600 S.W.3d 288, 295 n.3 (Mo. App. W.D. 2020).The other cases on which Appellants rely are also inapposite. Highland Park CDO I Grantor Tr., Series A v. Wells Fargo Bank, N.A., No. 08 Civ. 5723(NRB), 2009 WL 1834596 (S.D.N.Y. June 16, 2009); In re Green Goblin, Inc., 470 B.R. 739 (Bankr. E.D. Penn. 2012). Highland Park involved a dispute between a subordinated creditor and senior creditor who executed a subordination agreement containing different language than the standby creditor's agreement and subordination agreement here and has no bearing on the instant case. Id. at *2. In Green Goblin, the plaintiff borrower sought to enforce restrictions contained in standby creditor's agreements that had been incorporated into promissory notes executed by the borrower. 470 B.R. at 747-48. Unlike Green Goblin, here, Appellants are not parties to the standby creditor's agreement or subordination agreement and the Guaranty contains no language incorporating the standby creditor's agreement or subordination agreement.

15.   Because we find Appellants’ claims of error regarding the terms of the standby creditor's agreement and subordination agreement fail based on the contract language, we need not address whether the agreements were properly in evidence. As such, Point I is denied.For this reason, we also need not consider Respondents’ contentions that Appellants waived this argument and that Appellants lack standing to enforce the standby creditor's agreement and subordination agreement.

16.   Appellants’ argument is further misplaced as the cases on which Appellants rely were based on a prior version of Rule 55.27(g), providing, “a defense of failure to join a party indispensable under Rule 52.04” could be raised “on appeal.” See Wineteer v. Vietnam Helicopter Pilots Ass'n, 121 S.W.3d 277, 285 (Mo. App. W.D. 2003); Wheeler v. McDonnell Douglas Corp., 999 S.W.2d 279, 283-84 (Mo. App. E.D. 1999); and Obaidullah v. Kabir, 882 S.W.2d 229, 230-31 (Mo. App. E.D. 1994)).However, Rule 55.27(g) was amended in 2011, and the provision allowing such a defense to be raised on appeal was removed. Rule 55.27(g)(2); Empire Dist. Elec. Co. v. Coverdell, 484 S.W.3d 1, 27 n. 28 (Mo. App. S.D. 2015).

17.   “An indispensable party is a necessary party who cannot feasibly be joined at the time but whose absence is so critical that equity and good conscience will not permit the matter to proceed without that party.” Moore v. Crocker, 674 S.W.3d 146, 152 (Mo. App. E.D. 2023). “If a non-party is deemed to be a necessary party, the court then determines whether the party is an ‘indispensable party.’ ” Id.

18.   Appellants rely on a federal district court case in which the court found that a senior lender was required to be joined in a lawsuit on the subordinate promissory note. GTG Holdings, Inc v. Amvensys Capital Grp., LLC, No. 3:13-cv-3107-M, 2015 WL 4634557 (N.D. Tex. Aug. 3, 2015). GTG holdings is inapplicable to the instant case. In GTG Holdings, the senior lender, subordinate creditor, and borrower were all parties to a subordination agreement. Id. at *1. Here, Appellants are not parties to the subordination agreement and American National Bank has no interest in the contract sued on—the Guaranty.

EDWARD R. ARDINI, JR., JUDGE

All concur.