noting that stare decisis could impede the denied intervenor and that “[i]n practical terms (which the rule enjoins be applied), exclusion from that primary action enfeebles the effect of evidence available only to the [intervenors].”
How later courts described this case
- noting that stare decisis could impede the denied intervenor and that “[i]n practical terms (which the rule enjoins be applied), exclusion from that primary action enfeebles the effect of evidence available only to the [intervenors].”
Written by the judges who cited it.
The opinion
In the
Missouri Court of Appeals
Western District
JAMES D MERCHANT, ET AL., )
)
Respondents; )
)
JAMES D MERCHANT PERSONAL )
REPRESENTATIVE FOR )
JAMES T MERCHANT (DECEASED), ) WD85658
) OPINION FILED:
Respondent, ) JANUARY 2, 2024
)
v. )
)
GRAND LODGE OF ANCIENT FREE )
AND ACCEPTED MASONS OF )
THE STATE OF MISSOURI, )
)
Appellant. )
Appeal from the Circuit Court of Saline County, Missouri
The Honorable Dennis A. Rolf, Judge
Before Division One: Edward R. Ardini, Jr., Presiding Judge,
Anthony Rex Gabbert, Judge, Thomas N. Chapman, Judge
The Grand Lodge of Ancient Free and Accepted Masons of the State of Missouri
appeals the judgment of the Saline County Circuit Court denying its motion to intervene.
In four points on appeal, it claims the trial court erred in denying intervention as a matter
of right, the trial court lacked jurisdiction, the trial court erred in finding that it was not a
third party beneficiary, and the trial court erred in holding there was no implied trust in
favor. The judgment is reversed and remanded.
Facts
The Marshall Masonic Temple Association (“Marshall Temple”) is a Missouri not-
for-profit corporation. The Articles of Incorporation (“Original Articles of
Incorporation”) filed with the Missouri Secretary of State in 1965 state that the purposes
for which the corporation is organized are:
To promote the principles of morality, integrity, good citizenship,
and brotherly love in the community, and to encourage and promote the
fraternal precepts of Free Masonry;
To acquire, equip, furnish and maintain a Masonic Temple for the
use of the Masonic Bodies of Ancient Free and Accepted Masons of the
State of Missouri, now or hereafter organized in Marshall, Missouri, to hold
title to and manage said Temple and the personal property placed therein for
the use of said Masonic Bodies and the members thereof, all in the
furtherance of the principles and tenets of Free Masonry without pecuniary
consideration to the Association. The corporation shall have all the powers
conferred upon fraternal corporations by the General Not for Profit
Corporation Act of Missouri consistent with such purpose.
The Original Articles of Incorporation further provided:
In the event this corporation should dissolve or cease to function, then all
assets of the corporation shall revert to Trilumina Lodge No. 205, Ancient
Free and Accepted Masons, if such Lodge is then existent; and in the event
said Lodge is dissolved or nonexistent, then such assts shall revert to the
Grand Lodge of Ancient Free and Accepted Masons of the State of
Missouri.
The Grand Lodge of Ancient Free and Accepted Masons (“Grand Lodge”) is also a
benevolent Missouri corporation. Trilumina Lodge No. 2015 of the Ancient Free and
2
Accepted Masons (“Trilumina Lodge”) is a fraternal subchapter of Grand Lodge.
Trilumina Lodge is not a separate Missouri corporation.
Under the Original Articles of Incorporation, Marshall Temple had no members or
stockholders but did have a perpetuating Board of Directors. The Directors of Marshall
Temple were to be elected from members of Trilumina Lodge at all Trilumina Lodge
annual meetings. Pursuant to the Original Articles of Incorporation, there were six
Directors, each serving a three-year term. Directors’ terms were staggered such that only
two Directors’ terms expired each year. Thus, two Directors were elected at each annual
meeting.
Two Directors were elected at the 2019 annual meeting. Because of the COVID-
19 pandemic, Trilumina Lodge did not hold meetings or have election communications in
2020 and 2021. No Director elections were held in those two years.
On August 4, 2021, Marshall Temple filed duly Amended Articles of Incorporation
(“Amended Articles of Incorporation”) with the Missouri Secretary of State. The
Amended Articles of Incorporation removed all references to Masonry, Grand Lodge, or
Trilumina Lodge. They changed the name from Marshall Masonic Temple Association to
Marshall Temple Association. They changed the purpose of the corporation to “the
transaction of any lawful activity conducted on a non-profit basis exclusively for
benevolent purposes consistent with Revised Statutes of Missouri Chapter 355 and
Internal Revenue Code Section 501(c)(3).”
3
The Amended Articles of Incorporation identified the current Directors of
Marshall Temple. The Directors on August 4, 2021 were the same Directors from after
the 2019 annual meeting: Brian Bench, Russell Cooksey, Paul E. Harper, Herbert
Latchaw, James D. Merchant, and Ronald Tennill (“2019 Board of Directors”). The
Amended Articles of Incorporation provided that elections shall be held annually at the
time specified in the bylaws. The terms of two Directors expired each year, starting in
2022. Marshall Temple still had no members or stockholders. The Amended Articles of
Incorporation provided:
In the event this corporation should dissolve, then all assets of the
corporation shall be distributed to another non-profit tax-exempt entity as
decided by the Board of Directors.
On August 5, 2021, Michael Ray Thomas, Master of Trilumina Lodge, purported
to convene some but not all members of Trilumina Lodge for a special election.
According to a July 28, 2021 email sent by Thomas, the special election was to fill
Director vacancies on the Marshall Temple Board of Directors. At that special election,
Michael Ray Thomas, Jeffrey P. Hoey, David Michael Diehm, Justin A. Dinwiddie,
Ronald M. Nelson, and Shawn D. Oliver were elected as the new Directors of Marshall
Temple (“2021 Board of Directors”).
Since September 1965, Marshall Temple has owned land and a building in Saline
County (“the Property”). In August 2021, Jeffrey P. Hoey, one of the members of the
2021 Board of Directors, executed a warranty deed transferring the Property from
Marshall Temple to Trilumina Lodge. Also in August 2021, the 2021 Board of Directors
4
attempted to gain control of Marshall Temple’s bank account. The account was frozen
and no parties were able to access it. The bank stated it would unfreeze the bank account
when presented with a court order determining ownership of the account.
In September 2021, James D. Merchant, the President of the 2019 Board of
Directors, and Marshall Temple filed a petition naming the six men on the 2021 Board of
Directors as defendants. In its petition, Marshall Temple claimed that there were no
vacancies on the Marshall Temple Board for Thomas to fill and that Thomas was not
authorized to act on behalf of Marshall Temple. Marshall Temple claimed that the special
election was in violation of both the Original and the Amended Articles of Incorporation.
It stated that the 2021 Board of Directors are not authorized to act on behalf of Marshall
Temple.
In Count I of its petition, Marshall Temple sought an injunction preventing the
2021 Board of Directors from holding themselves out or purporting to act as the Board of
Directors of Marshall Temple. The petition also requested that the 2021 Board of
Directors take all necessary steps to reverse and rescind their prior actions. Marshall
Temple claimed in its petition that the warranty deed transferring the Property was
fraudulent and void or voidable. Marshall Temple requested the 2021 Board of Directors
withdraw its claim to the Marshall Temple bank account. In Count II of its petition,
Marshall Temple sought declaratory relief asking the court to declare that the 2021 Board
of Directors did not and have never had authority to act on behalf of Marshall Temple, the
proper Board of Directors is the 2019 Board of Directors, Marshall Temple is the sole
5
owner of the bank account, the warranty deed transferring the Property is void, and
Marshall Temple owns the Property.
The 2021 Board of Directors filed their answer and counter claim in November
2021. They also filed a motion to dismiss for failure to join persons needed for just
adjudication. The motion claimed that Count I is essentially a suit between two groups of
Directors of Marshall Temple. It argued that the entire 2019 Board of Directors need to
be the plaintiffs bringing the suit. The motion to dismiss further argued that Trilumina
Lodge needed to be added as a defendant because it was a party to the transaction
involving ownership of the Property and the warranty deed. Marshall Temple opposed
the motion to dismiss because Trilumina Lodge was not a legal entity on record with the
Missouri Secretary of State and, thus, could not sue or be sued. A hearing was held on
the motion to dismiss. The trial court noted that it was not yet established that Trilumina
Lodge was not a legal entity. It indicated that it was going to order Trilumina Lodge
added as a party but “if it’s later developed that they need to be dismissed out, they can
be dismissed out without affecting any error or anything in the case.” The parties
discussed whether Grand Lodge should be substituted for Trilumina Lodge. The attorney
for the plaintiffs argued that Grand Lodge did not have any rights in the case. The court
stated that it would permit Grand Lodge to come in if the plaintiffs desired it. The trial
court ordered that the rest of the 2019 Board of Directors be added as plaintiffs and that
Trilumina Lodge be added as a defendant. It ordered that the attorney for the 2021 Board
of Directors would accept service on behalf of Trilumina Lodge.
6
Marshall Temple filed an amended petition complying with this order.1 The
defendants filed an answer and counterclaim to the amended petition in November 2021.
Marshall Temple filed a motion to dismiss the counter claims in January 2022 for failure
to state a claim upon which relief can be granted and for lack of verification. The trial
court granted the motion to dismiss the counter claims.
In February 2022, Grand Lodge filed a motion to intervene in the case. In its
petition attached to its motion to intervene, Grand Lodge stated that its by-laws
prohibited individual lodges from incorporating. The by-laws did allow the formation of
Building Associations to be incorporated as non-profit corporations to hold title to,
maintain, and operate the lodge’s property. Pursuant to those by-laws, Marshall Temple
was incorporated by members of Trilumina Lodge with its Articles of Incorporation
stating the corporation was to hold real and personal property for the benefit of Trilumina
Lodge, and by extension Grand Lodge, and for no other purpose.
Grand Lodge’s petition stated that the Original Articles of Incorporation of
Marshall Temple required the members of the Board of Directors to be members of
Trilumina Lodge. The six men comprising the 2019 Board of Directors were suspended
from membership from Trilumina Lodge with immediate effect on July 20, 2021.
Further, the 2019 Board of Directors was not authorized to amend the Articles of
1
The amended petition stated that in August 2021, a quorum of the 2019 Board of
Directors met and passed a resolution acknowledging, in part, that Brian Bench was to be
replaced by James T. Merchant. References to the 2019 Board of Directors include this
substitution where applicable.
7
Incorporation and file the Amended Articles of Incorporation with the Missouri Secretary
of State on August 4, 2021.
Grand Lodge’s petition alleged in Count I a claim for conversion. It stated that the
2019 Board of Directors was elected with the understanding that it would act for the
benefit of Trilumina Lodge and Grand Lodge. The 2019 Board of Directors met in secret
and took action adverse to Trilumina Lodge and Grand Lodge. In attempting to amend
the Articles of Incorporation, the 2019 Board of Directors are attempting to steal the
assets being held for the benefit of Trilumina Lodge and Grand Lodge. The petition
alleged that Grand Lodge is a tax exempt entity pursuant to Section 501(c)(10) of the
Internal Revenue Code. It stated that the Amended Articles of Incorporation endanger the
tax status of Trilumina Lodge and Grand Lodge.
Grand Lodge asserted in Count II a claim of breach of fiduciary duty. It stated
that the 2019 Board of Directors had a duty to conduct the affairs of Marshall Temple for
the purposes expressed in the Original Articles of Incorporation which includes a duty to
Trilumina Lodge and Grand Lodge. Grand Lodge asserted in Count III a claim for
declaratory relief and quiet title. It requested that the Missouri Secretary of State be
ordered to strike the Amended Articles of Incorporation and that the court declare that the
2021 Board of Directors are the board of directors of Marshall Temple, that the 2021
Board of Directors control the assets of Marshall Temple including the bank account, and
that the warranty deed for the Property be adjudged valid.
8
Grand Lodge’s motion to intervene was argued on March 1, 2022. The trial court
denied the motion on March 10, 2022, stating:
After hearing the arguments of counsel and review of the pleadings filed
herein and case law provide[d], the Court finds Grand Lodge of Ancient
and Accepted Free Masons of the State of Missouri have failed to address
and establish each of the three elements necessary for intervention pursuant
to Rule 52.12(a)(2) as interpreted by the Missouri Supreme Court in State
Ex Rel. Nixon v. American Tobacco Co., Inc.,34 S.W.3d 122 (2000), and
therefore its Motion to Intervene is denied.
The case proceeded to bench trial in May 2022.
The trial court entered its judgment in July 2022. The court found that the 2019
Board of Directors was the proper Board of Directors in August 2021. The filing of the
Amended Articles of Incorporation was valid. The warranty deed transferring the
Property is void and Marshall Temple is the sole and lawful owner of the Property.
Marshall Temple is the sole and lawful owner of the bank account at issue. The judgment
stated that the 2021 Board of Directors do not and did not ever have any right to transfer
the Property or access the bank account. The 2021 Board of Directors were permanently
enjoined from holding themselves out as having authority to act for Marshall Temple and
were ordered to take all steps necessary to reverse and rescind all prior attempts to gain
access to Marshall Temple’s assets.
This appeal follows. 2
2
Grand Lodge appeals the denial of its motion to intervene in WD85658. The 2021
Board of Directors and Trilumina Lodge appeal the July 2022 judgment in WD85650. James T.
Merchant died in October 2022. He is represented in the appeal by his personal representative
James D. Merchant who is also a party to these proceedings.
9
Standard of Review
“We will affirm the trial court’s decision denying intervention as a matter of right
unless there is no substantial evidence to support it, it is against the weight of the
evidence, or it erroneously declares or applies the law.” Henson v. Merob Logistics, LLC,
670 S.W.3d 142, 146 (Mo. App. W.D. 2023) (internal quotation marks omitted). “[T]he
decision to grant or deny the motion is one involving application of the law.” Id. at 146-
47 (internal quotation marks omitted). “Motions to intervene as a matter of right ... are
typically decided based upon the motion, pleadings, counsel’s arguments, and
suggestions in support or opposition to the motion.” Loveland v. Austin, 626 S.W.3d 716,
721 (Mo. App. E.D. 2021) (internal quotation marks omitted).
Point I
In its first point on appeal, Grand Lodge claims the trial court erred in denying its
motion to intervene as a matter of right. It argues the trial court misapplied the law
because it had a direct and immediate interest in the pending suit. Grand Lodge states
that the defendants in the suit could not adequately represent its interests.
Rule 52.12 states in relevant part:
(a) Intervention of Right. Upon timely application anyone shall be
permitted to intervene in an action: (1) when a statute of this state confers
an unconditional right to intervene or (2) when the applicant claims an
interest relating to the property or transaction that is the subject of the
action and the applicant is so situated that the disposition of the action may
as a practical matter impair or impede the applicant’s ability to protect that
interest, unless the applicant’s interest is adequately represented by existing
parties.
10
Pursuant to that rule, a potential intervenor must file a timely motion showing that the
following criteria have been satisfied: “(1) an interest relating to the property or
transaction which is the subject of the action; (2) that the applicant’s ability to protect the
interest is impaired or impeded; and (3) that the existing parties are inadequately
representing the applicant’s interest.” Robinson v. Missouri Dept. of Health and Senior
Services, 672 S.W.3d 224, 231–32 (Mo. banc 2023) (internal quotation marks omitted).
“The proposed intervenor carries the burden of establishing the presence of all
three elements required for intervention as a matter of right.” Allred v. Carnahan, 372
S.W.3d 477, 481 (Mo. App. W.D. 2012) (internal quotation marks omitted). “When an
applicant satisfies the elements, the right to intervene is absolute, and the motion to
intervene may not be denied.” Id. (internal quotation marks omitted). “Alternatively, a
motion to intervene as of right under Rule 52.12(a)(2) may properly be denied if even one
of these three elements is not established.” Id. (internal quotation marks omitted).
“A motion to intervene pursuant to Rule 52.12(a) is typically simple motion
practice.” Id. The procedure is set forth in Rule 52.12(c):
(c) Procedure. A person desiring to intervene shall serve a motion upon all
parties affected thereby. The motion shall state the grounds therefor, and
shall be accompanied by a pleading setting forth the claim or defense for
which intervention is sought. The same procedure shall be followed when a
statute of this state gives a right to intervene.
“The applicant files a motion to intervene setting out why it should be permitted to
intervene under the Rule and, typically, would attach a proposed pleading and perhaps
11
exhibits in support of the motion.” Allred, 372 S.W.3d at 482. “The motion is called up
for a hearing, the parties appear and present arguments, and the court makes its decision.”
Id.
It its motion to intervene, Grand Lodge stated the “action involves Plaintiffs’
attempts to convert property from [Grand Lodge] to Plaintiffs” and that it had “a right to
intervene in the present action because it is so situated that disposition of the action may
as a practical matter impair or impede [Grand Lodge’s] ability to protect its interest in the
Property at issue herein.”
In the hearing on Grand Lodge’s motion to intervene, the trial judge asked why
Grand Lodge should be allowed to intervene. There was a discussion between the parties
about what property interest Grand Lodge had in the case. Grand Lodge argued that
Trilumina Lodge was a subchapter of Grand Lodge and that everything in the case
ultimately traces back to Grand Lodge.
Grand Lodge argued that Marshall Temple was formed to serve Trilumina Lodge
and Grand Lodge. It noted the unique legal structure of Masonic organizations and that
the Internal Revenue Service even has a special section under 501(c)(10) to govern
domestic fraternal societies. Grand Lodge argued that Marshall Temple’s actions in
amending the Articles of Incorporation threatened the existence of the Masons, including
Grand Lodge. Grand Lodge also noted that it was a beneficiary of Marshall Temple’s
property under the Original Articles of Incorporation but was not under the Amended
Articles of Incorporation.
12
The 2019 Board of Directors characterized Grand Lodge’s interest under the
Original Articles of Incorporation as a double contingent interest because both Marshall
Temple and Trilumina Lodge had to cease to be in existence before Grand Lodge’s
interest would be realized. Trilumina Lodge stated it would be happy to substitute Grand
Lodge in for Trilumina Lodge. Marshall Temple opposed that substitution.
The trial court asked whether Trilumina Lodge was a separate organization that is
in between the Grand Lodge and the members. The attorney for Grand Lodge stated that
Trilumina Lodge is a subchapter of Grand Lodge, it can’t exist without Grand Lodge, and
it can’t hold property without the authority of Grand Lodge. Grand Lodge argued that, in
addition to the claim of conversion, it was also seeking to assert a claim of breach of
fiduciary duty. That claim involved the allegation that the 2019 Board of Directors had a
fiduciary duty to both Trilumina Lodge and Grand Lodge.
The trial court asked why Grand Lodge’s rights couldn’t be protected by Trilumina
Lodge. Grand Lodge stated because Trilumina Lodge operates for the Grand Lodge but it
is not the Grand Lodge. The trial court asked why Trilumina Lodge couldn’t defend
Grand Lodge if it operated for Grand Lodge. Grand Lodge argued that Masonic
organizations were set up in a specific manner and that the amendment of the Articles of
Incorporation were an attack on that structure across the state of Missouri. Trilumina
Lodge was only one lodge under Grand Lodge.
An intervenor has the burden to show three elements. The first element is “an
interest relating to the property or transaction which is the subject of the action.”
13
Robinson, 672 S.W.3d at 231 (internal quotation marks omitted). “To intervene in an
action as a matter of right, the intervenor’s interest in the action must be a direct and
immediate claim to, and have its origin in, the demand made by one of the parties to the
original action.” Matter of Missouri-Am. Water Co. v. Hall, 470 S.W.3d 761, 765 (Mo.
App. W.D. 2015) (internal quotation marks omitted). “An interest necessary for
intervention as a matter of right does not include a mere, consequential, remote or
conjectural possibility of being affected as a result of the action.” Id. (internal quotation
marks omitted). “It must be such an immediate and direct claim upon the very subject
matter of the action that the would-be intervenor will either gain or lose by the direct
operation of the judgment that may be rendered therein.” Id. (internal quotation marks
omitted). “When a party claims intervention as a matter of right, they are asserting that
they may be legally bound or prejudiced by any judgment entered in the case.” Id.
(internal quotation marks omitted).
In its motion to intervene, Grand Lodge stated that “[t]his action involves
Plaintiffs’ attempts to convert property from [Grand Lodge] to Plaintiffs.” In its petition
attached to the motion to intervene, Grand Lodge argued that Marshall Temple was
formed solely to hold property for Grand Lodge and its subchapter and that Marshall
Temple owed Grand Lodge a fiduciary duty. In its argument to the trial court, Grand
Lodge claimed the Amended Articles of Incorporation served to remove Marshall Temple
from Grand Lodge’s masonic structure. Grand Lodge claimed that the Amended Articles
of Incorporation endangered Grand Lodge’s tax status as a 501(c)(10) corporation.
14
At issue in the underlying lawsuit was who was the proper Board of Directors of
Marshall Temple and whether the Amended Articles of Incorporation were valid. Grand
Lodge is mentioned by name over 135 times in the 139 page transcript of the bench trial.
Grand Lodge is mentioned by name almost 30 times in the 22 page judgment. Grand
Lodge’s constitution and bylaws were admitted into evidence at the bench trial and were
cited by the trial court in its judgment. The judgment spends over four pages explicitly
addressing a claim that the Property was being held in an implied trust for Grand Lodge.
In its judgment, the trial court found that Trilumina Lodge is not a corporate entity but is
a subordinate lodge of Grand Lodge. The first element is satisfied.
The second element is “that the applicant’s ability to protect the interest is
impaired or impeded.” Robinson, 672 S.W.3d at 231-32 (internal quotation marks
omitted). In its motion to intervene, Grand Lodge stated that “disposition of the current
action may as a practical matter impair or impede [Grand Lodge’s] ability to protect its
interest in the Property at issue herein.” Grand Lodge claimed that the Amended Articles
of Incorporation were not valid. Its ability to argue that would be impaired by the trial
court’s finding that the Amended Articles of Incorporation were valid. See, e.g., Toombs
v. Riley, 591 S.W.2d 235, 236-37 (Mo. App. W.D. 1979) (noting that stare decisis could
impede the denied intervenor and that “[i]n practical terms (which the rule enjoins be
applied), exclusion from that primary action enfeebles the effect of evidence available
only to the [intervenors].”). The second element is satisfied.
15
The third element is “that the existing parties are inadequately representing the
applicant’s interest.” Robinson, 672 S.W.3d at 232 (internal quotation marks omitted).
“[T]he fact that two parties are on the same side of the dispute is not enough, in and of
itself, to preclude intervention.” Allred, 372 S.W.3d at 486. “Rather, [t]he determination
of whether a proposed intervenor’s interest is adequately represented by an original party
to an action usually turns on whether there is an identity or divergence of interest between
the proposed intervenor and the party.” Id. (internal quotation marks omitted). “Another
factor to be considered is how effective the representation will be in light of a legal
disability or the trial strategy of the party which would preclude the party from presenting
the claims or defenses of the proposed intervenor.” Id. at 486-87 (internal quotation
marks omitted). “Furthermore, where the first two requisites for [intervention as of right]
are met, the third element requires only the ‘minimal showing’ that the representation
‘may be’ inadequate.” Id. at 487 (internal quotation marks omitted). “Thus, once a
proposed intervenor establishes an interest in the underlying litigation and that such an
interest may be impaired or impeded if intervention is not permitted, the third element is
satisfied upon a ‘minimal showing’ that there is a divergence of interest between the
proposed intervenor and the party.” Id.
The 2019 Board of Directors brought this lawsuit against the six individual
members who comprised the 2021 Board of Directors. It added Trilumina Lodge as a
party after being ordered to do so, though it argued that Trilumina Lodge was not a legal
16
entity. The six individual members of the 2021 Board of Directors did not represent
Trilumina Lodge.
In its judgment, the trial court listed the six individual men who comprised the
2021 Board of Directors as the defendants. It did not identify Trilumina Lodge as a
defendant. The trial court found the following in its judgment:
Trilumina Lodge is not a legal entity registered with the Missouri Secretary
of State. As such, Trilumina Lodge cannot enter into a contract, own
property, or otherwise attempt to conduct business. Despite Defendants’
allegations that Marshall Temple is controlled by Trilumina Lodge ….
Trilumina Lodge cannot “control” Marshall Temple in any sense of the
word, as that would constitute conducting business in the State of Missouri.
Again, Trilumina Lodge is not a legal entity and therefore is incapable of
owning property or entering into a contract. The attempted transfer of the
Property (and the subject Warranty Deed) must be void as a matter of law.
(internal citations and references to the record omitted). The trial court further found that
“Trilumina Lodge is not a legal entity and therefore does not and did not ever have
any right to control, transfer, or own the Property, nor any right to control, own, or
change authorized signers for the [bank account].”
At the hearing on the motion to dismiss for failure to join necessary parties, which
occurred before the motion to intervene, the trial court stated that the evidence might
show that Trilumina Lodge is not a legal entity, and Trilumina Lodge might be dismissed
as a party. On appeal, Grand Lodge argues that Trilumina Lodge could not represent its
interests because it was not really a party to the suit. The Respondents agree, stating in
their brief that “[b]ecause Trilumina cannot sue or be sued, it was a legal nullity for
Trilumina to be added as a party defendant.”
17
Grand Lodge is a legal entity registered with the Missouri Secretary of State.
Further, Grand Lodge argued at the hearing on the motion to intervene that Masonic
organizations were set up in a specific manner and that the amendment of the Articles of
Incorporation was an attack on that structure across the state of Missouri. Trilumina
Lodge could not advance that argument because it was only one lodge under Grand
Lodge.
Significantly, Grand Lodge sought to assert its own claims against the 2019 Board
of Directors and Marshall Temple for conversion, breach of fiduciary duty, and
declaratory relief/quiet title. The defendants’ counterclaims were dismissed prior to the
filing of the motion to intervene. As the case proceeded to trial, the plaintiffs were the
only parties asserting claims and the defendants were solely in a defensive position.
Grand Lodge was seeking to do more than deny the plaintiffs’ claims. It wanted to take
an offensive posture and assert its own claims. Trilumina Lodge and the 2021 Board of
Directors did not. The third element is satisfied.
Grand Lodge met all three elements of intervention under Rule 52.12(a). The trial
court erred in finding otherwise. The point is granted.
Points II-IV
In its second point on appeal, Grand Lodge claims the trial court erred in entering
final judgment because it lacked jurisdiction. It argues that the pending suit adjudicated
the rights of Grand Lodge even though Grand Lodge was not a party to the suit. In its
third point on appeal, Grand Lodge alternatively argues that the trial court erred in
18
holding that Grand Lodge was not a third party beneficiary to the original Articles of
Incorporation. In its fourth point on appeal, Grand Lodge alternatively argues that the
trial court erred in holding there was no implied trust in favor of Grand Lodge with
respect to the Property. Given our disposition of Point I, we need not address these
points. They are denied without prejudice.3
Conclusion
Grand Lodge satisfied the three requisite elements of intervention as of right.
“Consequently, its right to intervene was absolute and could not be denied.” Allred, 372
S.W.3d at 488. The trial court erred in denying the motion to intervene as a matter of
right. The judgment is reversed and remanded with instructions to grant Grand Lodge’s
intervention.4
___________________________________
Anthony Rex Gabbert, Judge
All concur.
3
The Respondents filed a motion to dismiss Appellant’s Points II-IV. That motion was
taken with the case and is now denied given this opinion.
4
The Respondents filed a motion for their attorneys’ fees on appeal. That motion was
taken with the case and is now denied given the disposition in this opinion.
19