Kirkland v. Todd
| Decision Date | 13 July 1993 |
| Docket Number | No. 18364,18364 |
| Citation | 856 S.W.2d 936 |
| Parties | Jake R. KIRKLAND, Plaintiff-Appellant, v. Ronald TODD, Richard Munday, Roger Vestal, Hobart Stewart, and William (Bill) Oliver, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Stuart H. King, Woolsey, Fisher, Whiteaker & McDonald, Springfield, for plaintiff-appellant.
David E. Schroeder, Fitzsimmons, Schroeder, Nelson & Reynolds, P.C., Springfield, for defendants-respondents Todd, Munday, Vestal & Oliver.
Thomas W. Millington, Schroff, Glass & Newberry, P.C., Springfield, for defendant-respondent Stewart.
Plaintiff brought this action for a deficiency on a promissory note made by Bear Park, Inc., and guaranteed by Defendants. The deficiency arose after foreclosure of the deed of trust which secured the note. After a trial to the court, judgment was entered in favor of Defendant guarantors. Plaintiff appeals from that judgment. We affirm.
The trial court entered findings of fact and conclusions of law and concluded, inter alia, "defendants' obligation on the guarantee of [Bear Park's promissory note] was exonerated by virtue of the material alteration and change in terms of the outstanding indebtedness, including, but not limited to, substitution of the primary obligor and material changes in the repayment terms reflected by the Brunsons' indulgence in late payments and acceptance of multiple payments over an extended period of time." Plaintiff's second point relied on attacks this finding. Because this point is dispositive of the case we need not discuss the remaining two points. The judgment in a court-tried case is to be affirmed if it could properly have been reached on any reasonable theory, including any single ground stated in the conclusions of law. Trust Estate Under Last Will v. Welch, 842 S.W.2d 567, 571 (Mo.App.1992).
At trial the essential facts were not seriously disputed. However, an understanding of the numerous parties and transactions involved can best be achieved by presenting the facts in chronological order.
October 1, 1985 Wallace and Helen Brunson contract with Bear Park to sell the corporation certain real estate in Taney County, Missouri, for $366,200.
October 7, 1985 At the closing, Bear Park delivered the Brunsons a promissory note in the face amount of $285,000 in partial payment of the purchase price. The note was dated October 7, 1985, and was secured by a deed of trust on the Taney County property.
At the same time, Defendants personally executed a guaranty agreement on the reverse side of the note. Their agreement recited, "WE, the undersigned, hereby guarantee payment of the within note according to its terms and provisions." At that time Defendants were shareholders of Bear Park and served on its board of directors.
According to the note terms, Bear Park was obligated to pay Brunsons 10 percent interest with quarterly payments of principal and interest. The first payment of $68,800 was due on January 7, 1986, and the remaining payments were $7,226.80 each commencing on April 7, 1986. The note contained an acceleration clause and matured on January 7, 2001 when the unpaid balance became due and payable.
January 7, 1986 Bear Park failed to make the first quarterly payment of $68,800.
January 23, 1986 Marvin Motley, attorney for the Brunsons, made written demand upon Bear Park for the amount in default. After no response, Motley initiated foreclosure proceedings.
February 21, 1986 By letter of this date Motley confirmed his clients' agreement with Bear Park that he would stop the foreclosure upon payment of $7,000 in lieu of the $68,800 payment then in default. In addition, the letter confirmed that the remaining quarterly payments of $7,226.80 "will have to be increased as this payment was based upon the assumption that the sum of $68,800.00 would be paid on January 7, 1986." The record reveals no evidence that Defendants consented to this agreement. Bear Park paid $7,000 and the foreclosure was canceled.
April 7, 1986 The quarterly payment due this date was not paid. Brunsons did not recalculate the amount of the quarterly payments, but Mrs. Brunson testified Mr. Motley may have done so and notified Bear Park of the amount. The record does not reveal the amount of the recalculated payment if Motley did so.
April 22, 1986 By letter of this date, Motley advised Defendants the note was in default and made demand upon the guarantors for payment of the amount due. The demand failed to state the amount due.
May 28, 1986 Defendants transferred their shares of stock in Bear Park to Bob Francis. The same day Bear Park filed a petition under Chapter 11 of the Bankruptcy Code.
September 27, 1986 Bear Park entered into a contract for the sale of the property in question to Clevenger Investment Management Corp. (CIMC). The purchase price was the amount due on the Brunsons' note which CIMC agreed to assume and pay. The contract was contingent upon approval of the bankruptcy court.
After the $7,000 payment of February 24, 1986, Bear Park made no payments to Brunsons up to September 27, 1986. Other than the demand of April 22, 1986, no further demands were made upon Defendants to pay the note.
January 2, 1987 Bear Park filed an application in bankruptcy court for approval of the sale to CIMC. Bear Park alleged Brunsons were agreeable to the assumption of the debt and had no objection to the sale.
January 8, 1987 Bob Francis paid $9,000 to Brunsons.
March 11, 1987 A hearing was held in bankruptcy court on Bear Park's application for sale. Brunsons appeared at the hearing and offered no objections to the sale. The bankruptcy court approved the sale of the property to CIMC.
March 30, 1987, June 7, 1987, and June 30, 1987 Brunsons received payments from Bob Francis on these dates for $9,000, $3,000 and $3,000, respectively.
March 18, 1988 Brunsons assigned their interest in the note and deed of trust in question to Plaintiff in exchange for his payment of $285,000.
Plaintiff received no payments following his purchase of the note and testified he made no demands on Defendants for payment.
July 11, 1988 A foreclosure was held and Plaintiff purchased the property in question for $280,000.
Plaintiff claimed at trial the foreclosure resulted in a deficiency of $36,454.84 plus interest, expenses and attorney fees.
Plaintiff's second point claims the trial court erroneously determined that Defendants' liability on the guaranty was exonerated by material changes of Defendants' obligations under their guaranty and the promissory...
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