Polk County Bank v. Spitz

• Citation: 690 S.W.2d 192
• Decision Date: 26 March 1985
• Docket Number: No. 13576,13576
• Parties: POLK COUNTY BANK, Plaintiff-Respondent, v. Ellis E. SPITZ and Elsie R. Spitz, Defendants, and Bobby N. Graven, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 192

690 S.W.2d 192

POLK COUNTY BANK, Plaintiff-Respondent, v. Ellis E. SPITZ and Elsie R. Spitz, Defendants and Bobby N. Graven, Defendant-Appellant.

No. 13576.

Missouri Court of Appeals,

Southern District,

Division Two.

March 26, 1985.

Motion for Rehearing and Transfer to

Supreme Court Denied April 15, 1985.

Application to Transfer Denied

May 29, 1985.

Gary W. Lynch, Douglas, Douglas, Lynch & Ashlock, P.C., Bolivar, for plaintiff-respondent.

Harold F. Glass, Tom G. Pyle, Schroff, Glass & Newberry, P.C., Springfield, for defendant-appellant.

PREWITT, Chief Judge.

Plaintiff filed a three-count petition. Count I sought recovery against defendants Spitz on a promissory note. Count II was directed against all defendants and asked the court to declare that plaintiff's security interest in certain cattle was superior to a security interest in the cattle claimed by defendant Graven. Plaintiff's lien was acquired as security for the payment of the promissory note sued on in Count I. Count III claimed that plaintiff's security interest in the cattle was superior to the interest claimed by Graven and sought damages for his conversion of the cattle. No claim against defendants Spitz was made in this count.

Defendant Graven's security interest in the cattle was obtained to secure payment of a promissory note executed by defendants Spitz as part of a transaction in which defendant Graven sold the cattle to defendants Spitz. Graven seized the cattle pursuant to a writ of replevin issued after the Spitzes failed to make any payments on their promissory note to Graven.

The trial court entered judgment for plaintiff on Count I. On Count II it declared that plaintiff's security interest in the cattle was prior to defendant Graven's interest. On Count III the trial court found that defendant Graven converted the cattle and entered judgment against Graven for their value on the date of the conversion.

Appellant contends that the trial court erred in overruling his motion to dismiss for improper venue because he was a resident of Wright County. Defendants Spitz were residents of Polk County and respondent claims venue was proper under § 508.010(2), RSMo 1978. It states: "When there are several defendants, and they reside in different counties, the suit may be brought in any such county".

Respondent contends that venue was established by Count II and it could join with that count the conversion claim against appellant. It asserts that the declaratory relief sought in Count II was proper to determine the priority of the liens on the cattle and that all defendants were proper parties to that determination.

Appellant counters that "Count II was not sufficient to establish the venue because it was superfluous and did not state a separate cause of action against defendant Graven in view of the Count III claim against him for conversion." He alleges that priority of their liens had to be decided in Count III and as there was an adequate remedy at law the declaratory judgment action does not lie and venue cannot be predicated on it.

If a plaintiff improperly joins a defendant in an attempt to acquire venue, then venue is improper. State ex rel. Coca Cola v. Gaertner, 681 S.W.2d 445, 447 (Mo. banc 1984). Courts recognize pretensive joinder where the pretensive nature of the joinder appears on the face of the pleadings and where there is no cause of action against the resident defendant. Id.

Where venue is questioned, the plaintiff carries the burden to show an honest belief that there is a justiciable claim against the resident party. Wadlow v. Donald Lindner Homes, Inc., 654 S.W.2d 644, 646 (Mo.App.1983); Rakestraw v. Norris, 478 S.W.2d 409, 414 (Mo.App.1972).

If plaintiff had one cause of action against defendants Spitz and defendant Graven, then the residence of defendants Spitz made venue proper. See Sperry Corp. v. Corcoran, 657 S.W.2d 619, 621 (Mo. banc 1983). If plaintiff had only separate causes of action against the defendants Spitz and defendant Graven, then venue against defendant Graven is improper because the joinder of two or more separate causes of action in a single petition does not create venue as to both causes. Id. See also State ex rel. Turnbough v. Gaertner, 589 S.W.2d 290 (Mo. banc 1979).

The initial issue then, as framed by the parties, is whether under the facts stated in the petition, Count II stated a claim for which declaratory judgment relief could be granted.

Except in "exceptional circumstances plainly appearing", the Declaratory Judgment Act, § 527.010 et seq. RSMo 1978, is not to be used when an adequate remedy already exists. Harris v. State Bank and Trust Co. of Wellston, 484 S.W.2d 177, 178-179 (Mo.1972); Love Mortg. Properties, Inc. v. Horen, 639 S.W.2d 839, 841 (Mo.App.1982).

An adequate remedy includes that the plaintiff could assert the issues sought to be declared as a defense in an action brought by defendant. See Glueck Realty Company v. City of St. Louis, 318 S.W.2d 206, 211 (Mo.1958); State Farm Fire & Casualty Company v. Powell, 529 S.W.2d 666, 669 (Mo.App.1975).

A judgment sought under the Declaratory Judgment Act must be one which will declare a fixed legal right and accomplish a useful purpose. Hardware Center, Inc. v. Parkedge Corp., 618 S.W.2d 689, 692 (Mo.App.1981). "[A]nyone may obtain such relief in any instance in which it will terminate a controversy or remove an uncertainty." Rule 87.02(d).

A request for a declaratory judgment can be appropriate to determine priority of liens. See Rabren v. Andalusia Lumber and Supply Co., 279 Ala. 551, 188 So.2d 279 (1966); James v. Golson, 92 So.2d 180 (Fla.1957); Continental Oil Co. v. Sutton, 126 Ga.App. 78, 189 S.E.2d 925 (1972); 22 Am.Jur.2d, Declaratory Judgment, § 64, p. 925. Quoting from Rule 87.04, "When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration", respondent contends "that the owners of the property would have an interest which would be affected by the declaration of the priorities of the liens".

Citing City of Creve Coeur v. Creve Coeur Fire Protection Dist., 355 S.W.2d 857, 859 (Mo.1962), C.S. v. J.W., 514 S.W.2d 848, 853, n. 1 (Mo.App.1974), and Ward Parkway Shops, Inc. v. C.S.W. Consultants, Inc., 542 S.W.2d 308 (Mo.App.1976), respondent suggests a petition seeking a declaratory relief may also seek additional relief, including damages, if properly stated in separate counts. Those cases so state, but we do not find them controlling.

There are instances where it is desirable that the relationship of the parties be established because there may be a continuing relationship or future acts which depend on the outcome. See 22 Am.Jur.2d, Declaratory Judgments, § 14, p. 855. Whether the damages sought are granted, it is expedient to establish certain legal rights of the parties. In such cases it may be correct to determine those rights because proper relief involves more than just the money damages sought. We believe that is why a declaratory judgment...