Boatmen's Bank of Southern Missouri v. Foster, 19030

• Decision Date: 22 June 1994
• Docket Number: No. 19030,19030
• Citation: 878 S.W.2d 506
• Parties: BOATMEN'S BANK OF SOUTHERN MISSOURI, f/k/a Boatmen's National Bank of Cassville, Plaintiff-Appellant, v. Oliver FOSTER, Defendant, and Lucinda Earlene Harber, Movant-Respondent.
• Court: Missouri Court of Appeals

Page 506

878 S.W.2d 506

BOATMEN'S BANK OF SOUTHERN MISSOURI, f/k/a Boatmen's National Bank of Cassville, Plaintiff-Appellant, v. Oliver FOSTER, Defendant and Lucinda Earlene Harber, Movant-Respondent.

No. 19030.

Missouri Court of Appeals,

Southern District,

Division One.

June 22, 1994.

Lincoln J. Knauer, Mark D. Pfeiffer of Farrington & Curtis, Springfield, for plaintiff-appellant.

Craig A. Smith, of Daniel, Clampett, Lilley, Dalton, Powell & Cunningham, Springfield, for movant-respondent.

MONTGOMERY, Judge.

Boatmen's Bank of Southern Missouri (Bank) ¹ appeals a trial court judgment enjoining the execution sale of certain Stone County real estate. In that judgment, the court (1) quashed the execution and (2) permanently enjoined the Bank from levying upon the real estate.

On January 16, 1992, the Bank filed a petition with the Stone County Circuit Court, seeking a judgment against Oliver Foster on an unpaid promissory note. Foster did not oppose the Bank's action, and on March 5, 1992, the court entered a money judgment in the Bank's favor for the amount of the note and related costs and interest. The next month, the Bank sought to enforce the judgment by levying execution upon a 46-acre tract. Foster had previously listed the tract as an asset on a financial statement he submitted to the Bank, ² and the Bank believed Foster owned an undivided one-half interest in the property.

Subsequently, Lucinda Earlene Harber (Foster's ex-wife) filed a motion to quash the execution sale of this property and to enjoin the Bank from levying upon it. In her motion, Harber explained that when she and Foster were divorced in 1975, each of them was awarded an undivided one-half interest in the 46 acres. More importantly, she claimed that in 1989 (prior to the Bank's money judgment and commencement of execution) Foster had conveyed his one-half interest to her in a handwritten deed. Harber stated that Foster made this conveyance in lieu of certain child support and medical payments, which Foster owed her. The deed was not recorded, however, until May 15, 1992--two and a half weeks after the Bank levied execution on the property.

In response to Harber's motion, the court initially ordered a temporary injunction against execution sale of the property. Then, on July 27, 1993, it quashed the execution sale and permanently enjoined the Bank from attempting to enforce its judgment against Foster by selling or levying upon the 46 acres. This appeal followed.

The Bank's first point relied on reads as follows:

The trial court improperly applied the law to the facts it found to exist: having found that the handwritten deed, divesting judgment debtor (Respondent Foster) of any interest in the property, was fraudulently contrived after Boatmen's obtained its judgment against Foster, the trial court should have declared the handwritten deed "... clearly and utterly void" under section 428.020, RSMo., or its successor, set it aside, and permitted the bank to foreclose on its judgment lien. The trial court failed to do so, thereby committing error.

For at least two reasons, this point must fail.

The first reason rests on the principle that an appellate court will not find trial court error on an issue that was never presented to the trial court for decision. Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 36 (Mo. banc 1982). By claiming that the trial court should have set the deed aside after declaring Foster's handwritten deed "clearly and utterly void," the Bank raises an issue on appeal that it never presented to the trial court for decision. In fact, during the July 24, 1992, hearing held to consider evidence regarding Harber's motion, the Bank led the court to believe that setting aside the handwritten deed was not an issue.

In the course of that hearing, the Bank offered into evidence the previously mentioned financial statement on which Foster had listed the 46 acres as an asset. Counsel for Harber objected to the introduction of this document. As part of that objection, Harber's attorney said, "I would also remind the Court that there is no--there is no pleading here moving to set aside the [handwritten] deed. We're not here to set aside the deed." Counsel for the Bank immediately responded: "That's correct, Your Honor. I'm offering this [document] for the purpose of impeachment of Mr. Foster's testimony that he did not represent to Boatmen's National Bank that he owned interest in a certain piece of property which is at issue in this litigation." ³

To paraphrase our Supreme Court in Lincoln Credit Co., the Bank's contention on appeal (that the trial court should have set aside the deed after declaring it void) "[was] not presented to the trial court and it has long been stated that this Court will not, on review, convict a lower court of error on an issue which was not put before it to decide." 636 S.W.2d at 36.

The second major flaw in this first point has to do with the Bank's assertion that the trial court "found that the handwritten deed, divesting judgment debtor (Respondent Foster) of any interest in the property, was fraudulently contrived after Boatmen's obtained its judgment against Foster." The trial court made no such finding.

As part of its judgment quashing execution and enjoining levy upon the 46 acres, ...