Curnutt v. Scott Melvin Transport, Inc., WD

Citation903 S.W.2d 184
Decision Date06 June 1995
Docket NumberNo. WD,WD
PartiesJoanne CURNUTT, Trustee Dean Curnutt Trust, Respondent, v. SCOTT MELVIN TRANSPORT, INC., Appellant. 50117.
CourtCourt of Appeal of Missouri (US)

Zel M. Fischer, Rockport, for appellant.

Scott W. Ross, Maryville, for respondent.

Before FENNER, C.J., P.J., and BRECKENRIDGE and SPINDEN, JJ.

FENNER, Chief Judge.

Appellants, Scott Melvin Transportation, Inc., and Harold Melvin, appeal the trial court's order granting summary judgment to respondent, Joanne Curnutt, as Trustee of the Dean Curnutt Revocable Trust, on her claim seeking judgment for money due on a promissory note.

The record reveals that on August 1, 1990, appellants executed and delivered to respondent a promissory note in the amount of $87,000.00. The note was payable in 60 equal monthly installments of $1,935.27, with an annual interest rate of 12 percent. There is also an acceleration clause in the note providing for payment in full upon default. There is a dispute between the parties as to the exact collateral pledged to secure the note. The note itself specifically lists a house, coins, and a building as collateral. Additionally, appellants claim to have pledged 500 shares of Scott Melvin Transport, Inc., stock as collateral. Respondent claims to own the 500 shares of stock outright. While the note did provide for security to be evidenced by prior or subsequent security documents, and for a security interest in all other personal property of appellants that was in or came into the possession of respondent, the stock was not specifically listed as collateral in the note nor was it evidenced by a separate security document.

Appellants made several payments on the note between August 1990 and December 1992. No payments have been made since December 1992, apparently because of the dispute regarding the status of the 500 shares of stock.

On July 15, 1993, appellants issued a letter to respondent offering to "pay [respondent's] loan in full at such time the 500 shares of Scott Melvin Transport, Inc. stock is surrendered back to [the company], as it was appellants' understanding that it would be." This offer was renewed in a letter to respondent's counsel on September 21, 1993. Respondent rejected both offers, continuing to claim outright ownership of the stock.

Respondent filed a petition for collection of sums allegedly due on the note against appellants on November 2, 1993. As part of the petition, respondent also alleged that the note provided for appellants to pay respondent's costs of collection and attorney's fees incurred in collecting the note. Both appellants answered separately on December 1, 1993, denying that payments on the note were past due, that the entire balance was due, that the note was in default, that they had refused to pay the note, that the amount respondent claimed was due on the note was accurate, and that they agreed to pay respondent's costs of collection and attorney's fees in collecting the note. Both appellants also affirmatively stated that several offers had been made to pay the note in full, but respondent refused to release the pledged collateral upon payment in full. Appellants also raised the affirmative defenses of accord and satisfaction, estoppel, waiver, failure to state claim upon which relief can be granted, and lack of subject matter jurisdiction by listing them in their respective answers, but provided no specific facts to support each alleged defense.

There was no further activity in the case until respondent filed a motion for summary judgment accompanied by an affidavit from Joanne Curnutt on March 17, 1994. The motion alleges that there is no genuine issue of material fact as to respondent's right to recover the balance due on the promissory note and that appellants' affirmative defenses were insufficiently pled or fail as a matter of law as the offers to pay the note in full were not valid tenders. Respondent's suggestions in support of the motion for summary judgment also included a calculation of the amount due on the note as of December 11, 1992, and the time records and hourly rate of counsel which would allow computation of an attorney's fee award.

Appellants filed a joint response to the motion for summary judgment along with affidavits from Scott Melvin and Harold Melvin on April 22, 1994. In addition to the continuing dispute regarding the status of the 500 shares of stock and the effect of the determination of the status on the offers to pay the note in full, appellants contended that they needed to conduct further discovery before proceeding with the case.

Oral argument on the motion for summary judgment was held May 3, 1994. The court took the motion under advisement and granted the appellants 15 additional days, or until May 18, 1994, to file additional suggestions in opposition to respondent's motion. Appellants filed additional suggestions on May 19, 1994, along with an affidavit from appellants' counsel dealing with the issue of discovery. Appellants did finally serve interrogatories and requests for production of documents on respondent on May 18, 1994 (nearly one month after they raised the issue of the need for discovery in their response to the summary judgment motion). Respondent did not answer these discovery requests. No action was taken by appellants to compel discovery.

On August 25, 1994, the trial court granted respondent's motion for summary judgment, awarding respondent the sum of $56,995.00 as the amount of principal due on the note as of December 12, 1992, plus interest at 12% per annum from December 12, 1992 until August 25, 1994, amounting to $11,505.33. The court additionally awarded respondent $1,565.00 toward attorney fees, with costs assessed to appellants. Appellants' appeal was timely filed thereafter.

I. STANDARD OF REVIEW

The Missouri Supreme Court provided an exhaustive analysis of summary judgment practice and review in its opinion in ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993). Appellate review of summary judgment is essentially de novo. Id. at 376. The criteria on appeal for testing the propriety of summary judgment are no different than those which the trial court should have employed initially. Id. As the trial court's initial judgment is founded on the record submitted and the law, there is no need for the appellate court to defer to the trial court's granting of the summary judgment motion. Id.

When considering the appeal, the Court will review the record in the light most favorable to the party against whom judgment is sought. State ex rel. Conway v. Villa, 847 S.W.2d 881, 886 (Mo.App.1993). The movant bears the burden of establishing a right to judgment as a matter of law on the record as submitted, any evidence in the record that presents a genuine issue as to the material facts defeats the movant's prima facie showing. ITT Commercial Fin. Corp., 854 S.W.2d at 382. A "genuine issue" exists where the record contains competent material that evidences two plausible, but contradictory, accounts of the essential facts. Id. A "genuine issue" is a dispute that is real, not merely argumentative, imaginary, or frivolous. Id.

The non-movant is accorded the benefit of all reasonable inferences from the record. Martin v. City of Washington, 848 S.W.2d 487, 489 (Mo. banc 1993). If the movant requires an inference to establish his right to judgment as a matter of law and the evidence reasonably supports an inference other than that alleged by movant, a genuine dispute exists and the movant's prima facie showing fails. ITT Commercial Fin. Corp., 854 S.W.2d at 382.

Facts set forth in support of a party's motion for summary judgment are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. Id. at 376. Even if uncontradicted, however, the facts alleged by movant must still establish an entitlement to judgment as a matter of law for summary judgment to be proper. See E.O. Dorsch Elec. Co. v. Plaza Constr. Co., 413 S.W.2d 167, 173 (Mo.1967). The key to summary judgment is the undisputed right to judgment as a matter of law, not simply the absence of a fact question. ITT Commercial Fin. Corp., 854 S.W.2d at 380.

II. SHOWING REQUIRED BY A "CLAIMANT" TO ESTABLISH ENTITLEMENT TO SUMMARY JUDGMENT

Respondent was the plaintiff, or claimant, in the underlying action. A "claimant" must establish that there is no genuine dispute as to those material facts upon which the claimant would have had the burden of persuasion at trial. ITT Commercial Fin. Corp., 854 S.W.2d at 381. Additionally, where a defendant raises an affirmative defense, a claimant moving for summary judgment must also establish that the affirmative defense fails as a matter of law. Id. The claimant may defeat an affirmative defense by establishing that any one of the facts necessary to support the defense is absent. Id.

In order for the respondent herein to be entitled to summary judgment for amount due under the alleged note, she must show that: (1) appellants were indebted to plaintiff pursuant to a valid promissory note; (2) there remains a balance due on said note; (3) demand for payment has been made and payment refused by appellants on said note, thereby leaving appellant in default.

Only once the claimant has satisfied its burden for establishing a right to judgment is the non-movant required to set forth specific facts showing there is a genuine issue of material fact. Id. (citing Rule 74.04). Once the claimant has made a prima facie showing, the defending parties may not rest upon the mere allegations or denials contained in their pleadings to contradict facts alleged by the claimant-movant. Id. A defending party must set forth specific facts showing there is a genuine issue for trial once the claimant has made a prima facie case. Id.

III. RESPONDENT'S MOTION FOR...

To continue reading

Request your trial
41 cases
  • Cooperative Finance Ass'n, Inc. v. Garst
    • United States
    • U.S. District Court — Northern District of Iowa
    • February 21, 1996
    ...pleading of the factual basis for such affirmative defenses can bar them as a matter of law. See, e.g., Curnutt v. Scott Melvin Transp., Inc., 903 S.W.2d 184, 191 (Mo.Ct.App.1995) (the factual basis for an affirmative defense must be set out in the same manner as is required for pleading of......
  • Chaney v. Cooper
    • United States
    • Missouri Court of Appeals
    • September 16, 1997
    ...to the action; and (4) the identity of the quality of the person for or against whom the claim is made." Curnutt v. Scott Melvin Transport, Inc., 903 S.W.2d 184, 191 (Mo.App.1995)(citing Gardner v. City of Cape Girardeau, 880 S.W.2d 652, 655 In Chaney I, the controversy was over the ownersh......
  • In re Schwarten
    • United States
    • U.S. District Court — District of Kansas
    • February 28, 1996
    ...It was there for punitive damages only." 6 "Collateral estoppel is also referred to as issue preclusion." Curnutt v. Scott Melvin Transport, Inc., 903 S.W.2d 184, 191 (Mo.App.W.D.1995). See Robinson v. Volkswagenwerk AG, 56 F.3d 1268, 1272 (10th Cir.1995), cert. denied, ___ U.S. ___, 116 S.......
  • Ditto, Inc. v. Davids
    • United States
    • Missouri Court of Appeals
    • November 12, 2014
    ...basis for an affirmative defense must be set forth in the same manner prescribed for pleading claims. Curnutt v. Scott Melvin Transp., Inc., 903 S.W.2d 184, 192 (Mo.App.W.D.1995). “ ‘A pleading that makes a conclusory statement and does not plead the specific facts required to support the a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT