Helton Const. Co., Inc. v. High Point Shopping Center, Inc., 17668
| Decision Date | 05 August 1992 |
| Docket Number | No. 17668,17668 |
| Citation | 838 S.W.2d 87 |
| Parties | HELTON CONSTRUCTION COMPANY, INC., Plaintiff-Respondent, v. HIGH POINT SHOPPING CENTER, INC., Raul J. Walters and E. Stanley Kroenke, Statutory Trustees, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Hamp Ford, Susan Ford Robertson, Knight, Ford, Wright, Atwill, Parshall & Baker, Columbia, for defendants-appellants.
Dale C. Doerhoff, Cook, Vetter & Doerhoff, Jefferson City, for plaintiff-respondent.
High Point Shopping Center, Inc., and its statutory trustees Raul J. Walters and E. Stanley Kroenke appeal from an order entered by the trial court on June 26, 1991, denying their Rule 74.11(c) application for an order showing satisfaction of a judgment entered February 8, 1989, by consent of the appellants and respondent Helton Construction Co., Inc. 1 We reverse and remand with directions that the trial court enter an order showing satisfaction of the judgment.
The parties raise two basic issues: (1) whether the appellants may appeal from an order denying satisfaction of a judgment entered earlier by their consent and (2) whether all issues concerning the appellants'
alleged default under the terms of the consent judgment were conclusively decided in their favor when the trial court quashed an execution on the consent judgment.
In December 1985, Helton filed suit against the appellants to enforce a mechanic's lien. On February 8, 1989, the parties appeared before the trial court. At that time a stipulation, signed by the parties and calling for a consent judgment, was presented to and approved by the court.
Summarized, the settlement provided that a $214,495.84 judgment in favor of Helton and against the appellants could be satisfied by the appellants' performing as follows: Paying interest monthly, at an annual rate of 9%, on a principal of $171,596.57 on the first day of March, April, May, June, and July 1989 and by paying the principal sum of $171,596.57 on July 1, 1989. If the $171,596.57 was not paid July 1, 1989, appellants could still obtain satisfaction of the judgment by continuing to pay interest, at a revised rate, on the $171,596.57 principal sum on the first of each month until December 1, 1989, when the $171,596.57 sum was to be paid. Default by reason of failure to make the monthly interest payments when due could be avoided by paying the interest "within ten (10) days after the time specified for such payment."
The revised interest rate, effective with the payment due on August 1, 1989, was to equal the prime rate of Boone County National Bank, Columbia, Missouri, plus 3%, as determined "on the first day of the month preceding the required interest payment."
The consent judgment provided that if appellants made the payments
In the judgment, the parties agreed that if the appellants defaulted, an affidavit of default filed by Helton's lawyer with the Camden County Circuit Court would be sufficient to give Helton the right to execute on the full amount of the judgment, $214,495.84, plus 9% interest from February 8, 1989, and to enforce its mechanic's lien. In the event of default, appellants had no right to set-off any payment made by them prior to default against the $214,495.84 judgment amount plus accrued interest. The consent judgment also provided:
[A]ny acceptance of any payment on a date or in a manner otherwise than as provided for in this provision, shall not constitute a waiver of [Helton's] rights pursuant to this provision, and shall not prohibit [Helton] from proceeding hereunder upon subsequent default.
The appellants made timely interest payments through July 1989. For the payment due August 1, 1989, they made a timely payment calculated at the 9% rate. Helton filed an affidavit of default on August 14, 1989, and an application for execution on August 17, 1989, claiming that the appellants had defaulted because they had not paid the entire interest due August 1; they had not calculated the interest at the Boone County National Bank prime rate plus 3%. The circuit clerk issued an order for execution on August 17, 1989, and the sheriff of Camden County "levied upon and seized" the real estate on that same date.
On August 25, 1989, the appellants tendered to Helton the additional interest due, $883.42, a tender which Helton rejected as being untimely and, therefore, unacceptable.
On September 5, 1989, Helton filed a notice of execution sale, the sale to be held September 19, 1989. Also on September 5, the appellants filed a motion to quash the execution. In their motion, the appellants denied the occurrence of a default because Helton had cashed the check for the August payment, and the appellants asserted numerous equitable grounds for relief, if the court concluded a default had occurred.
In its response to the motion to quash, Helton challenged all the grounds for relief asserted by the appellants.
On September 12, 1989, the trial court quashed the execution without making findings of fact or conclusions of law. 2 On September 27, 1989, Helton filed its motion for new trial.
On November 30, 1989, the appellants tendered to Helton and its attorneys a check for $173,283.11, an amount representing $171,596.57 principal plus accrued interest, and they requested Helton file an acknowledgement of satisfaction pursuant to Rule 74.11(a). Helton declined "to acknowledge satisfaction in full ... because payment in full has not been made."
The appellants then filed a motion under Rule 74.11(c) requesting an order showing satisfaction of the judgment. 3 Helton responded, again claiming the appellants' failure to timely pay the full amount of the interest due in August was an unexcused default and, therefore, the amount due December 1, 1989, under the consent judgment, was $214,495.84 plus accrued interest. On June 26, 1991, the trial court denied the appellants' Rule 74.11(c) motion. This appeal followed.
By a separate motion to dismiss this appeal, Helton contends that the appellants not only waived their right to appeal by agreeing to the February 8, 1989, judgment, but that they also expressly surrendered their right to appeal as evidenced by the following provision in the consent judgment:
This Judgment was entered by stipulation and consent of the parties, and shall be a final and unappealable order, as [appellants] hereby waive their right to appeal all or any portion of said judgment, in open court.
Our starting point is § 512.020, RSMo 1986, which provides that, with exceptions not applicable here, "[a]ny party to a suit aggrieved by any judgment of any trial court in any civil cause" may appeal "from any final judgment in the case or from any special order after final judgment in the cause...." Section 512.020 notwithstanding, Helton argues for dismissal of the appeal, relying on Shafer v. Automobile Club Inter-Ins. Exchange, 778 S.W.2d 395 (Mo.App.1989), State ex rel. Fletcher v. New Amsterdam Cas. Co., 430 S.W.2d 642 (Mo.App.1968), Foger v. Johnson, 362 S.W.2d 763 (Mo.App.1962), and National Surety Corp. v. Fisher, 317 S.W.2d 334 (Mo.banc 1958).
Shafer and Fletcher state the general rule that an order entered pursuant to an agreement of the parties is not appealable because it is not a judicial determination of rights. Shafer, 778 S.W.2d at 400; Fletcher, 430 S.W.2d at 645. Foger states the proposition that a party is not aggrieved by a judgment entered with its express or implied consent. 362 S.W.2d at 765. And National Surety Corp. makes it clear that a party may, by express waiver, surrender the right to appeal. 317 S.W.2d at 339.
Helton's cases do not control. Shafer and Foger involved attempts to appeal directly from orders entered upon agreement of the parties. Shafer, 778 S.W.2d at 396 and 400; Foger, 362 S.W.2d at 764-65. In National Surety Corp., the plaintiff and the defendant stipulated, after judgment that the personal judgment against the defendant was final and that the defendant would not appeal from it, but the defendant did not waive his right to appeal from the trial court order sustaining an attachment against a bank account belonging to the defendant. 317 S.W.2d at 338. The supreme court held that the applicable statute, § 521.420, did not permit the defendant to appeal on the attachment issue alone and, therefore, when he expressly waived his right to appeal from the judgment on the merits he also lost his right to appeal on the attachment issue. 317 S.W.2d at 338-39.
In Fletcher, the plaintiff attempted to appeal from a trial court order overruling his "Motion to Set Aside Stipulation for Settlement." 430 S.W.2d at 644-45. In ruling that the appeal was premature, the Fletcher court held that the plaintiff had "not yet been 'aggrieved' by a judicial determination." 430 S.W.2d at 645. The court then observed, "If it develops that subsequent orders of the trial court in dismissing plaintiff's petition, or in entering judgment for plaintiff, are not in conformity with the Stipulation for Settlement, a different situation may exist." Id. We believe the "situation" now under consideration is one embraced by the above-quoted Fletcher obiter dicta; it involves an order which the appellants, in effect, charge is "not in conformity with the Stipulation for Settlement."
Helton asserts there is "no difference" between the consent judgment and the trial court's ruling on the appellants' application for...
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