Evans v. Eno

• Decision Date: 25 July 1995
• Docket Number: No. WD,WD
• Citation: 903 S.W.2d 258
• Parties: John L. EVANS and Marilyn C. Evans, Respondents, v. Earl E. ENO and Shirley A. Eno, Appellants. 50144.
• Court: Missouri Court of Appeals

Page 258

903 S.W.2d 258

John L. EVANS and Marilyn C. Evans, Respondents, v. Earl E. ENO and Shirley A. Eno, Appellants.

No. WD 50144.

Missouri Court of Appeals,

Western District.

July 25, 1995.

Patrick Cronan, Cronan & Robinson, Columbia, for appellants.

John W. Kuebler, Hendren and Andrae, Jefferson City, for respondents.

Before BRECKENRIDGE, P.J., FENNER, C.J. and ELLIS, J.

BRECKENRIDGE, Judge.

John and Marilyn Evans filed suit against Earl and Shirley Eno to recover the deficiency on a promissory note after a foreclosure sale. The trial court entered summary judgment in favor of the Evanses for the amount which the Evanses claimed to be due on the note. The Enos now appeal, contending that there is a genuine issue of material fact regarding the amount of the deficiency.

The judgment is reversed and remanded.

On September 15, 1986, the Enos executed a promissory note to the Evanses in the amount of $13,500.00. According to the terms of the note, the Enos were obligated to make annual interest payments of $1,080.00 until September 15, 1991, when all of the principal and interest became due. The note was secured by a deed of trust to property which was conveyed by the Evanses to the Enos as part of the same transaction.

The Enos made the annual interest payments for the years 1987, 1988, 1989, and 1990. However, the Enos failed to pay the interest for 1991, and they failed to pay the principal which was due on September 15, 1991. Subsequently, the Evanses foreclosed on the deed of trust and purchased the property at the foreclosure sale. The Evanses then filed a petition which, in Count I, sought to recover the deficiency on the note. Count II sought to recover for damage to the property allegedly caused by mistreatment and neglect on the part of the Enos. Count II also alleged that the Evanses paid $10.00 for the property at the foreclosure sale, which purportedly was not applied to the underlying indebtedness but was used to offset waste. On July 27, 1993, the Evanses filed an amended petition which added an additional plaintiff and which otherwise restated Count I of the original petition. On August 4, 1993, the Evanses filed a motion for summary judgment on Count I, which was sustained by the trial court. The trial court awarded the Evanses $14,580.00, plus attorney's fees and interest from September 15, 1991.

In their sole point on appeal, the Enos claim that there is a genuine issue of material fact regarding the amount of the deficiency. Therefore, they contend, the trial court erred in granting summary judgment in favor of the Evanses.

Summary judgment is granted only when there is no genuine issue of material fact, and the burden is on the movant to show that there is no such issue of fact and that the movant is entitled to judgment as a matter of law. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 380 (Mo. banc 1993). A claimant who seeks a summary judgment must support each element of his claim with admissible facts to demonstrate his right to judgment as a matter of law. Machholz-Parks v. Suddath, 884 S.W.2d 705, 707-08 (Mo.App.1994).

In Missouri, "[a] deficiency suit is based upon the foreclosure sale price." Lindell Trust Co. v. Lieberman, 825 S.W.2d 358, 360 (Mo.App.1992). Provided the sale was fairly conducted, the sum for which the property was purchased at the sale has been held to be conclusive for the purpose of calculating the amount of the deficiency. Id.; Regional Inv. Co. v. Willis, 572 S.W.2d 191, 192 (Mo.App.1978).

At the time that the trial court considered the Evanses' motion for summary judgment, there was no evidence of the foreclosure sale price in the record. The only reference to the sale price was in Count II of the original petition filed by the Evanses, where they stated that they paid $10.00 for the property at the foreclosure sale. However, on July 27, 1993, which was approximately one week before they filed their motion for summary judgment on August 4, 1993, the Evanses filed an amended petition. The amended petition restated only the allegations contained in Count I of the original petition, and made no mention of a foreclosure sale price. Furthermore, the amended petition did not incorporate by reference any of the allegations contained in Count II of the original pleading.

When an amended petition has been filed, the original petition is thereby abandoned and it may not be considered for any purpose. Welch v. Continental Placement, Inc., 627 S.W.2d 319, 321-22 (Mo.App.1982). "An abandoned petition becomes a mere 'scrap of paper' insofar as the case is concerned," Id. at 321, and whether the original petition is a part of the court file is wholly immaterial. Savings Finance Corporation v. Blair, 280 S.W.2d 675, 677 (Mo.App.1955).

An abandoned petition is no longer in the case unless it is placed in evidence, Wise v. O'Kelley, 198 S.W.2d 28, 31 (Mo.App....