Florida Coast Bank of Broward County v. Hines, WD
| Decision Date | 11 January 1983 |
| Docket Number | No. WD,WD |
| Citation | 646 S.W.2d 110 |
| Court | Missouri Court of Appeals |
| Parties | FLORIDA COAST BANK OF BROWARD COUNTY, A Florida Banking Corporation, Plaintiff- Respondent, v. William C. HINES & Constance L. Hines, Husband and Wife, and Richard M. Hines, S & V Land Company, Inc., Defendants-Appellants. 32798. |
Kenneth O. McCutcheon, Jr. of Woolsey & Yarger, Versailles, for defendants-appellants.
Terrence F. Pyle of Crews, Gaw & Pyle, Tipton, for plaintiff-respondent.
Before MANFORD, P.J., and WASSERSTROM and KENNEDY, JJ.
This multicount action sought, both at law and in equity, recovery of monies due upon a promissory note. The cause was tried to the court. Judgment in the sum of $131,567.37, plus the setting aside of certain conveyances, was entered. The judgment is affirmed.
Before addressing the numerous alleged errors, it is necessary to identify the parties herein and provide a brief explanation of the developments at trial of the various issues presented to the trial court. Appellants are William C. Hines, Constance L. Hines, Richard Hines, and the S & V Land Company, Inc. William C. Hines and Constance L. Hines are husband and wife and Richard Hines is their son. The S & V Land Company, Inc. is a Missouri Corporation in which William C. Hines and Constance L. Hines are the sole stockholders and officers. These three individuals and the S & V Land Company, Inc. were original defendants at trial and throughout this opinion, they will be referred to as defendants either individually or collectively, as warranted.
Respondent is a Florida bank. Its corporate name at the origin of the transactions at issue in this case was Pompano Beach Bank and Trust Company. There was a subsequent merger and respondent's name was changed to Florida Coast Bank of Pompano Beach. By motion to amend the fifth amended petition, a further and final redesignation of respondent's name was entered and respondent's name was finally established as Florida Bank of Broward County. Respondent was the original plaintiff at trial and throughout this opinion, respondent will be referred to as plaintiff.
On or about January 16, 1975, the Circuit Court (17th Judicial Circuit) for Broward County, Florida, entered a final judgment in plaintiff's favor against defendants William C. Hines and Constance L. Hines in the sum of $70,137.98, consisting of $50,000.00 in unpaid principal, $16,091.78 of accrued interest, $146.20 in court costs, and $3,900.00 in attorney fees. This judgment remained unsatisfied.
On August 29, 1975, plaintiff filed this action in the Circuit Court of Morgan County. In response to the petition, motions to dismiss and to make more definite and certain were filed. The result of these motions was the filing of plaintiff's fifth amended petition. At this stage of the proceedings, plaintiff's claims were finally brought into focus. Within that amended pleading, four counts were set forth. Count I sought registration of the foreign (Florida) judgment; Count II for recovery of the principal and accrued interest, costs, and attorney fees under the terms of the note; Count III was in equity and sought to set aside a conveyance as fraudulent as to plaintiff in its capacity as a creditor. The final Count IV was also in equity and sought to set aside a conveyance as fraudulent as to plaintiff in its capacity as a creditor in additional tracts of land.
There followed a barrage of motions, answers, interrogatories, objections to interrogatories and requests for admissions. Issues upon the pleadings were finally drawn with the filing of defendant's answers and counterclaim to plaintiff's fifth amended petition on May 11, 1979. Three separate answers were filed. One was by defendants Richard M. Hines (a minor) and William C. Hines as guardian of Richard Hines. The second answer was filed by defendant S & V Land Company, Inc. The third answer was filed by defendants William C. Hines and Constance L. Hines. This pleading also contained a counterclaim. On August 6, 1980, plaintiff filed a Motion for Summary Judgment on Count II (for recovery of principal, interest, costs, and attorney fees under the promissory note) with supporting affidavits. On the same date (August 6, 1980) plaintiff filed its Motion for Summary Judgment as to defendants' counterclaim, with supporting affidavit. Defendants filed their opposition answer (with affidavits) to plaintiff's motion for summary judgment. On December 4, 1980, the trial court entered its order and judgment granting summary judgment in favor of plaintiff and against defendants William C. Hines and Constance L. Hines on the Count II promissory note and in favor of plaintiff and against defendants William C. Hines and Constance L. Hines on defendants' counterclaim. The trial court acknowledged there remained several issues of material fact regarding the remainder of plaintiff's petition and the order and judgment of December 4, 1980 was designated as not final for purposes of appeal.
This case was called for trial on February 23, 1981, on Counts III and IV only. It must be noted that Count I was not taken up at trial. At the time of oral argument, this court asked of counsel if a final judgment for purposes of appeal was before this court due to the lack of trial action upon Count I. Count II, which was the subject of plaintiff's motion for summary judgment noted above, was the same issue raised under the Count I promissory note, the difference being that under Count I, recovery was sought by and through the registration of a foreign (Florida) judgment. Plaintiff's counsel was asked by this court if there had not been a merger of Count II into the foreign judgment, Count I. None of the parties raised this issue nor did they brief it on appeal. The question was asked because of this court's duty to ascertain proper jurisdiction throughout the entirety of any proceedings. This court is satisfied that it has a final judgment for purposes of appeal and has proper jurisdiction to make final disposition herein, because the attack on the foreign (Florida) judgment was by defendant William C. Hines on the premise that the court in Florida did not have jurisdiction over him. Action taken in Florida did not involve all of the same parties as the instant proceeding. The result is that when the plaintiff moved for summary judgment as to Count II, plaintiff abandoned Count I. Therefore, with the trial court's disposition by summary judgment as to Count II and defendants' counterclaim, plus the entry of final judgment after trial on the merits upon Counts III and IV, there is a final judgment for purposes of appeal within the jurisdiction of this court.
Having outlined the foregoing background, this court now takes up defendants' points on this appeal. In disposing of defendants' points, the pertinent factual information is related therein. Defendants charge that the trial court erred (1) in granting summary judgment on Count II and their counterclaims because there existed a genuine issue of fact, (2) in granting summary judgment on Count II and their counterclaim because the supporting affidavits were insufficient, (3) in awarding to plaintiff the sum of $71,567.37 as interest because said amount was not prescribed within the terms of the promissory note, (4) in setting aside a conveyance of land (lot 20), and (5) in setting aside a conveyance of land (lot 21).
Review of this matter is prescribed by Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Neither party requested findings of fact and conclusions of law, and where the trial court has not been asked to do so, fact issues affecting the appeal are presumed to have been found in accordance with the court's judgment. Husky Industries, Inc. v. Craig Industries, 618 S.W.2d 458 (Mo.App.1981).
Under point (1), defendants charge that the trial court erred in entering summary judgment for plaintiff on the promissory note count and the counterclaim because there existed a genuine issue of fact. The issues involved in both the summary judgment on Count II and defendants' counterclaim are the same and it is conceded by defendants that the two summary judgments can be addressed simultaneously.
Count II was an action on a promissory note in the principal sum of $50,000.00 executed by defendants William C. Hines and Constance L. Hines on October 4, 1971. The note bore interest at the rate of eight percent (8%) per annum and became due 103 days after execution. The record shows that defendants defaulted on the note. At trial, defendants William C. Hines and Constance L. Hines admitted the execution and default of the note. The purpose of the note, according to the testimony of defendant William C. Hines, was to establish for him a line of credit. The line of credit, according to William C. Hines, was for $100,000, of which he used $50,000.00. Hines further testified that he held 100,000 shares of stock in the Florida D & M Corporation. The record shows that at the time of the origin of the note, no collateral or security was requested. However, according to defendant William C. Hines, the plaintiff demanded Hines "collateralize it." Thus, a pledge of notes on the D & M Corporation in the sum total of $50,000.00 in favor of defendants was pledged as security.
William Hines also stated that he left the country for a short while and when he returned, two persons involved with the D & M Corporation had misappropriated some $100,000.00 of his monies. The record shows D & M ultimately filed for bankruptcy and William C. Hines was listed as an unsecured creditor for $100,000.00.
As regards their first point (1), defendants claim the existence of a genuine issue of fact, which prevented the court from entering summary judgment. The claimed fact issue is plaintiff's failure to collect on notes due defendants from D & M. As stated previously, these notes were pledged as collateral for the promissory note. It...
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