AgriBank FCB v. Cross Timbers Ranch, Inc.

• Decision Date: 21 March 1996
• Docket Number: No. 20026,20026
• Citation: 919 S.W.2d 263
• Parties: AGRIBANK FCB, Plaintiff-Respondent, v. CROSS TIMBERS RANCH, INC., Gregory F. Allison, Holly Allison, W.E. Allison and Mallie Ann Allison, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 263

919 S.W.2d 263

AGRIBANK FCB, Plaintiff-Respondent, v. CROSS TIMBERS RANCH, INC., Gregory F. Allison, Holly Allison, W.E. Allison and Mallie Ann Allison Defendants-Appellants.

No. 20026.

Missouri Court of Appeals,

Southern District,

Division One.

March 21, 1996.

Appeal from Circuit Court, Hickory County; Honorable Theodore B. Scott, Judge.

William A.R. Dalton, Daniel, Clampett, Lilley, Dalton, Powell & Cunningham, Springfield, for appellants.

Jerry W. Venters, Venters, Pletz and Reed, P.C., Jefferson City, for respondent.

PER CURIAM.

The trial court granted a summary judgment in favor of AgriBank FCB in regard to the four-count counterclaim of Cross Timbers Ranch, Inc. This appeal followed.

In 1978, Allison Brothers, Inc., which later became Cross Timbers Ranch, Inc., and sole Appellant in this action (hereinafter referred to as "Cross Timbers") and William E. Allison and Mallie A. Allison, in their own personal capacity, executed a $500,000.00 promissory note to The Federal Land Bank of St. Louis, which later became AgriBank, FCB, and Respondent in this action (hereinafter referred to as "AgriBank"). The note was secured by a deed of trust, with a power of sale provision in the event of default, on 3,736 acres of farm property located in Hickory County, Missouri (hereinafter referred to as "the property").

Cross Timbers suffered financial reverses leading to its default under the note. On February 12, 1992, Agribank informed Cross Timbers that it had until March 31, 1992, to submit an application for loan restructuring. ¹ No application was submitted within said time frame. Almost one year later, on February 16, 1993, a restructuring application was submitted by Cross Timbers, but AgriBank rejected it citing ineligibility for restructuring and the ongoing foreclosure proceedings. One day before the foreclosure sale was scheduled, Cross Timbers filed a Chapter 12 Bankruptcy in the United States Bankruptcy Court for the Western District of Missouri. ² During the Chapter 12 Bankruptcy proceedings, AgriBank obtained relief from the automatic stay provisions of the Bankruptcy Code after a hearing on February 11, 1993, and commenced foreclosure of the property. Cross Timbers appealed this order to the United States District Court. One month later, Cross Timbers failed in its efforts to obtain confirmation of a reorganization plan in bankruptcy court and on March 9, 1993, the court dismissed the Chapter 12 proceeding. ³

On the foreclosure date of March 12, 1993, Cross Timbers filed a new Chapter 11 Bankruptcy and notice was duly given to the substitute trustee prior to the sale. After a brief adjournment, the substitute trustee proceeded to cry the sale and the property was sold to AgriBank for $675,000.00. Thereafter, AgriBank sought approval from the bankruptcy court for its foreclosure sale, to which Cross Timbers filed lengthy objections. After an extensive hearing, the bankruptcy judge affirmed the foreclosure sale in its totality and ordered that AgriBank could proceed with its completion. This and other orders of the bankruptcy court were affirmed by the United States District Court for the Western District of Missouri. On June 16, 1993, a trustee's deed was filed and recorded conveying title of the property to AgriBank.

In November 1993, Cross Timbers filed a complaint against AgriBank in the United States District court seeking to keep AgriBank from selling the property to a third party and requesting an order to require AgriBank to sell the property to Cross Timbers for $522,000.00, the value placed on the property by the bankruptcy judge in the course of the Chapter 12 bankruptcy proceedings. The complaint also sought review of the decision of the Farm Credit Administration denying Cross Timber's request to prohibit AgriBank from selling the property to a third party. The request was made on the basis that Cross Timbers had a "right of first refusal" as a former owner of a property which had been foreclosed by a federal lending agency. ⁴ The United States District Court denied Cross Timber's requested relief and the judgment was affirmed by the Eighth Circuit Court of Appeals.

On May 6, 1994, AgriBank filed a Petition for Injunctive Relief against Cross Timbers and the Allisons to keep them from harvesting and selling crops growing on the foreclosed property. Prior to AgriBank dismissing this petition, Cross Timbers filed a Counterclaim in four counts against AgriBank seeking a declaratory judgment: (1) that it had been deprived of its property without due process of law in a nonjudicial foreclosure and praying for cancellation of the trustee's deed; (2) for wrongful foreclosure; (3) for specific performance of the statutory obligation of AgriBank to sell the property to Cross Timbers for the fair market value of $522,000.00; and (4) for compensatory and punitive damages. AgriBank filed its Motion for Summary Judgment on Cross Timbers' Counterclaim, which was sustained by the trial court.

Cross Timbers now brings an appeal from the trial court's summary judgment holding, presenting six points of error.

I

In Point I of its brief, Cross Timbers asserts that the trial court erred in granting summary judgment to AgriBank because the motion failed to comply with Rule 74.04[c] ⁵ in that the motion did not state with particularity in separately numbered paragraphs each material fact as to which the movant claims there is no genuine issue; did not make specific references to the pleadings, discovery or affidavits that demonstrate the lack of a genuine issue as to any material fact; nor did it have a separate legal memorandum attached explaining why summary judgment should be granted.

Rule 74.04[c] required that:

Motions for summary judgment shall state with particularity in separately numbered paragraphs each material fact as to which the movant claims there is no genuine issue, with specific references to the pleadings, discovery or affidavits that demonstrate the lack of a genuine issue as to such facts. Each motion for summary judgment shall have attached thereto a separate legal memorandum explaining why summary judgment should be granted and affidavits not previously filed that are relied on in the motion.

The purpose of this rule is to "apprise the opposing party, the trial court, and in turn the appellate court of the specific basis on which the movant claims [entitlement] to summary judgment." Snelling v. Bleckman, 891 S.W.2d 572, 573 (Mo.App.1995) (Citation omitted.) A trial court is justified in denying a summary judgment because of the failure to comply with the requirements of Rule 74.04(c)(1). McCarthy v. Community Fire Protection Dist. of St. Louis County, 876 S.W.2d 700, 703 (Mo.App.1994).

We have repeatedly reversed judgments sustaining defective motions for summary judgments. Wirt Dev. Corp. v. Lor-Mar Drilling Contractors, Inc., 884 S.W.2d 382 (Mo.App.1994); Partney v. Reed, 839 S.W.2d 694 (Mo.App.1992); Johns v. Continental Western Ins. Co., 802 S.W.2d 196 (Mo.App.1991); Mercantile Bank of Sikeston v. Moore, 792 S.W.2d 653 (Mo.App.1990). However, if the issues are clear to the parties, the trial court, and the appellate court, respondent's failure to comply with the strict letter of the rule does not, per se preclude the granting of the summary judgment and its affirmance by an appellate court. Mathes by Mathes v. Nolan, 904 S.W.2d 353, 355 (Mo.App.1995).

The Motion for Summary Judgment is obviously lengthy and the issues are complex. However, in its 31 pages, the motion addresses itself to each of the four counts comprising Appellant's Counterclaim, citing facts and legal authorities, with specific reference to exhibits. The exhibits are appropriately indexed, referencing 390 pages wherein exhibits, affidavits, transcripts, judgments and pleadings are found.

Although the requirements of Rule 74.04[c] are not subject to waiver, Miller v. Ernst & Young, 892 S.W.2d 387, 389 (Mo.App.1995), it is, nevertheless, significant that the opposing party, Appellant herein, made no objection at the trial level to the violation of the precise requirement of the rule. On the contrary, Appellant filed its own 22 pages of responses, complete with exhibits and arguments comprising 191 pages contravening every material averment of Respondent. Thus the precise issues presented in Respondent's Motion for Summary Judgment were sufficiently clear so as to allow Appellant to make precise and appropriate responses thereto.

We cannot conclude that it is in the interest of judicial efficiency or economy to adopt an absolute rule that failure to comply with the Rule precludes summary judgment when the failure to comply does not adversely affect the litigants' understanding and addressing the issues, the trial court deciding the issue, and the appellate court reviewing the judgment.

Mathes by Mathes v. Nolan, 904 S.W.2d at 355. The issues presented by the Motion for Summary Judgment were clear to the trial court and to this Court. Under the particular circumstances of this case, the fundamental purposes of Rule 74.04[c] have been met. Plank v. Union Elec. Co., 899 S.W.2d 129, 133 (Mo.App.1995). Point I is denied.

II

Cross Timbers argues in Point II of its brief that the trial court erred in granting summary judgment to AgriBank as to Count I of Cross Timbers' Counterclaim because: (1) Cross Timbers was not afforded a hearing before the non-judicial foreclosure sale of its properties, contrary to the Fifth Amendment to the United States Constitution; (2) the validity of the trustee's deed conveying the property was not affirmed by the bankruptcy court in that the trustee's deed was made June 16, 1993, after the bankruptcy hearing of May 20, 1993; and (3) the foreclosure sale was not affirmed by the bankruptcy court in a proceeding which determined the same issues so as to bar its Count I by principles of res judicata and collateral estoppel.

On appeal of a summary judgment we review...