Germania Bank v. Thomas

• Decision Date: 28 May 1991
• Docket Number: No. 58968,58968
• Citation: 810 S.W.2d 102
• Parties: GERMANIA BANK, Plaintiff-Respondent, v. Jon C. THOMAS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 102

810 S.W.2d 102

GERMANIA BANK, Plaintiff-Respondent, v.Jon C. THOMAS, Defendant-Appellant.

No. 58968.

Missouri Court of Appeals,

Eastern District,

Division One.

May 28, 1991.

Steven M. Hamburg, Theresa Counts Burke, St. Louis, for defendant-appellant.

Marvin L. Klamen, St. Louis, for plaintiff-respondent.

PUDLOWSKI, Presiding Judge.

This is an appeal from the granting of a summary judgment in favor of respondent, Germania Bank (hereinafter Germania), against appellant, Jon C. Thomas(hereinafter Thomas), in the sum of $300,000 plus interest at 10% in the amount of $25,972 and attorney's fees in the sum of $5,000.

On February 1, 1990, Germania filed a petition against Thomas and R. Hal Dean(hereinafter Dean) seeking money owed pursuant to a demand reimbursement promissory note executed on November 30, 1988.Germania also sought recovery of interest at the rate of 7% plus prime, and attorney's fees and costs.

The demand reimbursement promissory note provided that the signatories promised to pay to Germania the sum of $300,000 or such lesser amount as was drawn under an irrevocable letter of credit (numbered 107).¹The irrevocable letter of credit (# 107), executed on the same day as the promissory note, authorized Germania to draw upon itself an amount up to $300,000 for the account of the signatories of the promissory note.It also allowed Germania to pay such draws to itself as agent for itself and for the other lenders participating in the underlying real estate loan.²The language included in the letter of credit stated that it was to be "effective immediately and expiring on May 1, 1989, (or such earlier date as specified herein)."

On May 3, 1990, Dean filed his answer to Germania's petition.Thomas's answer was file stamped May 29, 1990.On May 25, 1990, Germania filed a motion for summary judgment and an affidavit of Rita Davis(hereinafter Davis), commercial loan servicing manager of Germania, in support of its motion for summary judgment.Davis' affidavit attested to the fact that the funding for the promissory note occurred on September 6, 1989 in the full principal amount of $300,000.The affidavit also included amounts allegedly owed for interest and attorney's fees under the provisions stated in the note.

On July 18, 1990, Thomas filed the affidavit of Bernard W. Gerdelman(hereinafter Gerdelman), in opposition to Germania's motion for summary judgment.His affidavit stated that Gerdelman, an attorney, had provided legal services to Pinellas Place, Inc., d/b/a Pinellas Place Shopping Center, Inc., a Missouri corporation, (hereinafter Pinellas Incorporated), in connection with the second modification and extension of the terms of the underlying loan made by Germania to Pinellas Incorporated to finance Pinellas Incorporated's purchase of certain real estate property located in Pinellas County, Florida.Gerdelman also attested to the fact that in connection with the aforesaid transaction: (1) that he received a copy of an "Application for Letter of Credit;"(2) that a true and correct copy had been annexed to his affidavit; and (3) that this document had been submitted to Germania in connection with the aforesaid modification and extension of the loan to Pinellas Incorporated.His affidavit further attested to the fact that while he did not receive all of the copies of the fully executed documents signed by the various persons in connection with the modification and extension of the loan, that to the best of his knowledge, information and belief, the copies of the "Application for Standby Letter of Credit" and the "Letter of Credit (numbered 107)" attached therein were substantially on the same form as those referred to in the aforementioned demand reimbursement promissory note.The letter of credit on its face revealed that it had expired on May 1, 1989, four months prior to the draw by Germania on the letter of credit and funding of the note.

On July 18, 1990, Germania's motion for summary judgment was called and heard.That day Thomas filed an amended answer setting forth various affirmative defenses.Thomas further filed a motion for continuance of the hearing and a request for production of documents directed to Germania.That same day, Germania filed the affidavit of Stephen J. Schwartz(hereinafter Schwartz) in support of its motion for summary judgment.This affidavit sought to introduce into evidence a settlement stipulation filed in connection with the case of Germania v. Pinellas Incorporated, Pinellas Place, Ltd. a Missouri limited partnership(hereinafter Pinellas Limited), and Thomas in a cause of action pending before the Circuit Court for the 6th Judicial Circuit in Pinellas County, Florida, Case No. 89-7039-8.Pursuant to Paragraph 17 of the settlement stipulation, the letter of credit (107) was amended to extend the expiration date to October 15, 1989.

After the hearing on the motion for summary judgment, the trial court granted judgment in favor of Germania and against Thomas in the amount of $300,000, interest at 10% per annum totaling $25,972.04 and attorney's fees in the sum of $5,000.On August 31, 1990, Germania's cause of action against Dean and Dean's counterclaim were severed by the trial court from the claim against Thomas.On September 7, 1990, Thomas filed his notice of appeal.

On appeal Thomas contends that the trial court erred in granting summary judgment in favor of Germania and against Thomas because disputed issues of material fact were presented to the trial court at the time of the oral argument on the motion for summary judgment.Thomas argues that evidence properly before the trial court raised an issue as to whether the draw pursuant to the letter of credit was made subsequent to the letter of credit expiring, thereby precluding Thomas's liability under the demand reimbursement promissory note.Thomas further contends that the affidavit of Schwartz was not properly before the trial court and should not have been considered by the court in its ruling.

In reviewing a summary judgment, the appellate court must scrutinize the record in the light most favorable to the party against whom the judgment was entered and accord that party the benefit of every doubt.Brandt v. Missouri Pac. R.R. Co., 787 S.W.2d 781, 783(Mo.App.1986).Edwards v. Heidelbaugh, 574 S.W.2d 25, 26-27(Mo.App.1978).Under Rule 74.04(c), summary judgment may be granted only when there is no genuine issue as to any material fact, and the burden of proof is on the moving party.Dunbar v. Allstate Ins. Co., 584 S.W.2d 123, 124(1979).Summary judgment is only appropriate when the documents before the trial court, including pleadings, depositions, admissions, and exhibits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.Signature Pool Inc., v. City of Manchester, 743 S.W.2d 538, 540(Mo.App.1987).If there is the slightest doubt about the facts, a material issue of fact exists.Triggs v. Risinger, 772 S.W.2d 381(Mo.App.1989).A fact is material if it is "of such legal probative force as would control or determine the litigation."Ware v. St. Louis Car Company, 384 S.W.2d 287, 290(Mo.App.1964).

In this case, the trial court had before it Germania's affidavit of Davis, filed on May 25, 1990.The trial court also had before it the affidavits of Gerdelman filed on behalf of Thomas and that of Schwartz filed on behalf of Germania.As previously mentioned, Gerdelman's affidavit is dated July 16, 1990; the hearing was held July 18, 1990.This court acknowledges that the brief submitted by Thomas (page 2) states that Gerdelman's affidavit was filed "on or about July 5, 1990."However, that is impossible as the fact that the affidavit was not signed by Gerdelman until July 16, 1990.In regard to when the Schwartz affidavit was filed, reference is made to its filing on the court order signed July 18, 1990, that it was filed on that same day.No reference is made on the court order as to the filing of the Gerdelman affidavit.Nonetheless, it appears from the trial court docket sheet, included in the record on appeal, that both the Gerdelman and the Schwartz affidavits were filed on July 18, 1990, the same day as the hearing.The only support in the record for this condition is the judge's docket entry (apparently made by a clerk) which refers to "(2) affidavits" filed on July 18, 1990.

Rule 74.04(c) states that a party opposing a motion for summary judgment may file opposing affidavits "[p]rior to the day of the hearing."Thus, the record indicates that the Gerdelman affidavit was improperly filed.However, Germania has not raised this issue on appeal.Only the errors assigned and preserved by appellants are for appellate review.Stewart v. Stewart, 277 S.W.2d 322(Mo.App.1955);SeeRule 84.13(a).Thus, the court is limited to the contention on appeal as to whether the Schwartz affidavit was properly before the trial court.

Under Rule 74.04(c), a motion for summary judgment must be served at least 10 days before the time fixed for hearing.The adverse party must be allowed time to file affidavits opposed to the motion.Rule 74.04(c).These rules are designed to grant the adverse party the time and opportunity to marshal and then present evidence at the hearing.Advance Concrete & Asphalt Co. v. Ingels, 556 S.W.2d 955, 957(Mo.App.1977).Lawson v. St. Louis-San Francisco Ry. Co., 629 S.W.2d 648, 649(Mo.App.1982).Moreover, compliance with these rules is essential to insure proper process, for even when a motion for summary judgment is properly processed, it is considered to be an "extreme and drastic remedy" which "borders on the denial of due process."Miller v. United Security Ins. Co., 496 S.W.2d 871, 875(Mo.App.1973);see, e.g., Kroger Company v. Roy Crosby Company, 393 S.W.2d 843, 844(Mo.App.1965).Unless the record demonstrates the documents purportedly relied upon were properly and timely...