Caudle v. Kelley, 10496
| Decision Date | 28 December 1976 |
| Docket Number | No. 10496,10496 |
| Citation | 545 S.W.2d 427 |
| Parties | Eugene L. CAUDLE and Hilda E. Caudle, his wife, Plaintiffs-Appellants, v. Nancy KELLEY, Individually, and Trustee and last surviving officer of Land Market Realtors, Inc., a defunct corporation, Stockton, Missouri, et al., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Robert Stemmons, Mount Vernon, for plaintiffs-appellants.
Roy W. Brown, Kansas City, for defendant-respondent Kelley.
Samuel J. Short, Jr., Fowler & Short, Stockton, for defendants-respondents Carender.
This action arose out of the sale of a parcel or realty in Stockton, in Cedar County. The petition is laid in four counts. Count I alleges that Land Market Realtors, Inc., is a defunct Missouri corporation and that defendant Kelley is the trustee and last surviving officer of the board of directors, and an officer of the defunct corporation residing in Cedar County; that on June 18, 1975, defendant Kelley made and delivered to plaintiffs a check drawn on the defunct corporation in the amount of $28,402.93; that the check was presented for payment but was dishonored and that plaintiffs thereafter gave notice of dishonor to defendant Kelley and the corporation. Prayer is for judgment against defendant Kelley in the sum of $28,402.93 plus interest. Count II alleges payment of $27,000 to defendant Kelley and conversion of that sum by her; prayer is for judgment against her in the sum of $27,000 plus interest.
Count III alleges that on June 11, 1975, plaintiffs and defendants Carender entered into a contract for the sale of a parcel of land; that by the terms of the contract defendants Carender were obliged to pay $3,000 upon execution of the contract and that that sum was deposited with the defunct corporation; the balance of the purchase price--$27,000--was to be paid to plaintiffs upon execution and delivery of a warranty deed to defendants at the office of the defunct corporation. Plaintiffs allege delivery of a warranty deed and performance of all conditions precedent to payment and failure of defendants Carender to pay any part of the purchase price. Prayer is for judgment against defendants Carender in the amount of $30,000. Count IV alleges procurement of the warranty deed by means of fraudulent representation on the part of defendants Carender, specifically that defendants Carender represented they would pay the purchase price without any intention of doing so. Plaintiffs further allege their execution and delivery of the deed, recordation of the deed, inadequacy of their remedy at law and pray cancellation of the deed.
Defendants Carender filed a motion to dismiss all four counts of the petition 'for failure of the same to state a cause of action'. Defendant Kelley answered each count of the petition separately; the answer incorporates a motion to dismiss for failure to state a claim upon which relief can be granted, as authorized by Rule 55.27(a). 1 The record indicates that notice of a hearing on the motion to dismiss was served on the attorneys for both defendants Kelley and Carender, but nothing before us indicates that upon the date set the respective motions were converted to motions for summary judgment pursuant to Rule 55.27(a) or Rule 55.28 by presentation of matters outside pleadings or by reception of evidence. In any event, some time after the date set for hearing on the motion, the trial court entered the following order:
'The Court does hereby sustain Defendant's, M. T. Carender and Pearl...
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