Brentwood v. Barron Holdings Intern.

• Decision Date: 11 December 2001
• Docket Number: No. ED 79190.,ED 79190.
• Citation: 66 S.W.3d 139
• Parties: The CITY OF BRENTWOOD, a Municipal Corporation, Plaintiff/Respondent, v. BARRON HOLDINGS INTERNATIONAL, LTD., L.L.C., et al., Defendants/Appellants.
• Court: Missouri Court of Appeals

66 S.W.3d 139

The CITY OF BRENTWOOD, a Municipal Corporation, Plaintiff/Respondent, v. BARRON HOLDINGS INTERNATIONAL, LTD., L.L.C., et al., Defendants/Appellants.

No. ED 79190.

Missouri Court of Appeals, Eastern District, Division Two.

December 11, 2001.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 24, 2002.

Application for Transfer Denied February 26, 2002.

Edward P. Radetic, Girardeau, MO, for appellant.

Katherine J. Clendenin, Robert E. Fox, Jr., Assistant County Counselor, Clayton, MO, Marvin Klamen, St. Louis, MO, for respondent.

MARY K. HOFF, Judge.

Appellant, Barron Holdings International, LTD., L.L.C (Barron) appeals from the trial court order involving the distribution of monies paid into the registry of the court as damages for the taking of real property by Respondent, The City of Brentwood, a Municipal Corporation (City).¹ Barron contends the trial court erred in that it was not given proper notice, the trial court's order was not based on competent evidence and the trial court erred in finding that Defendant Concord Bank (Bank) had foreclosed on the interests of Barron, in that Bank held no deed of trust due to the City's taking of the property. We dismiss.²

Barron was the record title-holder of property in Brentwood and Bank was the mortgagee of property's prime mortgage, when City filed an eminent domain action in the Circuit Court of St. Louis County on August 29, 2000. The trial court issued Findings of Facts and a Decree of Condemnation on September 21, 2000 and appointed three commissioners to value the property. The commissioners valued the property at $1,240,000 and on November 22, 2000, City paid into the registry of the court the entire sum.

On December 21, 2000, 12:00 p.m., Bank held a foreclosure sale. The property was sold to the highest bidder who subsequently assigned her right and entitlement to damages and distribution, as owner, upon her acquisition of the Trustee's Deed at foreclosure, to Bank. Barron was not present at the foreclosure sale, nor, based on the record before us, has Barron appealed the foreclosure.

On December 21, 2000, 12:37 p.m., Barron filed a Motion for Pay Out Order, requesting the court to pay the funds, on deposit in the registry, to Bank, "the first mortgage deed of trust holder." Further in the motion, Barron requested the "money is to be applied to principal due on mortgage loan(s) of Barron Holdings International, Ltd., L.L.C. ( ...) on the condemned real property by said Concord Bank." Barron requested the circuit clerk to make the entire amount of the pay-out check "payable to Concord Bank for the benefit of Barron...." This motion was done ex parte, apparently with only Barron's attorney present. The motion was granted that same day.

On January 5, 2001, Bank filed three documents with the trial court. The first document was entitled "Motion of Defendant Concord Bank to Set Aside Order Entered As of December 21, 2000 Order And To Cause a Hearing To Be Held to Determine Parties Entitled to Distribution and to Order Distribution (Motion to Set Aside Order)." The second document was entitled, "Motion of Defendant Concord Bank to Shorten Time for Hearing" to permit Bank to shorten time of notice for hearing its Motion to Set Aside Order. The trial court scheduled the hearing sought by Bank for January 9, 2001 and granted Bank's motion to shorten time of notice by specifically holding that notice mailed on January 5, 2001 was proper notice. The third document was entitled, "Notice of Hearing," providing notice that Bank's Motion to Set Aside Order would be heard on January 9, 2001. According to the certificate of service, Barron was sent copies of all the prior documents on January 5, 2001.

On January 9, 2001, the trial court heard Bank's Motion to Set Aside Order. Bank noted to the court that it did not have prior notice of the December 21 motion filed by Barron. Further the Bank illustrated that the terms of the subsequent order were inconsistent with the terms of the promissory note evidencing Barron's obligation to Bank, and that Bank had held a foreclosure sale on December 21, 2000 at 12:00 p.m. and Barron was not present when the sale was called. The trial court set aside and held for naught the ex parte order of distribution entered on December 21, 2000. Bank was ordered to deliver to the registry all funds received pursuant to the ex parte order. The trial court continued the hearing on Bank's motion for determination and distribution of the condemnation proceeds pending further notice to be given to all parties regarding the hearing date.

On January 12, 2001, Bank filed its "Notice of Hearing" for a hearing to be held on February 9, 2001. Bank sent notice to Barron's attorneys of record.³ On February 6, 2001, City filed its "Motion for Distribution" and the "Notice of Hearing," scheduling its motion for February 9, 2001. These filings were sent to all parties.

On February 9, 2001, the motions for distribution filed by Bank and City were heard. Evidence was presented, including testimony from witnesses. The trial court took note of the City's "Notice of Hearing" and that all parties had been notified. Barron was not present at the hearing.

On February 13, 2001, the trial court entered its "Order and Decree." The trial court noted that the notice of the February 9th hearing date had been provided to all parties. The trial court, after noting the numerous encumbrances on the property totaling over $3 million, found that as Bank had foreclosed on the rights of Barron and as the subsequent owner had assigned her rights to Bank, Bank was deemed ". . . .to be superior both in title and in right to claim damages and distribution.... to Barron." The trial court ordered that...