Reben v. Wilson, s. 62103

• Decision Date: 24 August 1993
• Docket Number: Nos. 62103,62508,s. 62103
• Citation: 861 S.W.2d 171
• Parties: Mitchell and Catherine REBEN, Respondents, v. Charles S. WILSON, et al., Appellants. Charles S. WILSON, et al., Appellants, v. Mitchel and Catherine REBEN, Respondents.
• Court: Missouri Court of Appeals

Page 171

861 S.W.2d 171

Mitchell and Catherine REBEN, Respondents, v. Charles S. WILSON, et al., Appellants.

Charles S. WILSON, et al., Appellants, v. Mitchel and Catherine REBEN, Respondents.

Nos. 62103, 62508.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 24, 1993.

Rehearing Denied Sept. 29, 1993.

James E. Wynne and Walter H. Sheata, St. Louis, for respondents.

Elbert Dorsey, St. Louis and Jack B. Spooner, Clayton, for appellants.

SIMON, Judge.

This is an appeal from various orders entered in the Circuit Court of the City of St. Louis in an ejectment action by respondents, Mitchel and Catherine Reben, wherein they were awarded possession of the premises and real property known as 4746 West Florissant, St. Louis, Missouri (hereinafter referred to as the property at issue) and $500 per month rent for all months occupied after the ejectment action was filed. A counterclaim to respondents' previously dismissed quiet title action was consolidated with the ejectment action and was dismissed.

National Funeral Home Services, Inc. (NFHS), National Prearranged Services (NPS), and B.B. Anderson, Inc. d/b/a A.L. Beal Mortuary (B.B. Anderson), (collectively Appellants), appeal the judgment awarding respondents possession and the dismissal of their second amended counterclaim and the denial of their motion to dismiss, or in the alternative, motion for summary judgment. Charles S. Wilson, Jr. (Wilson), who was not a party to the counterclaim, also appeals.

On appeal, Appellants contend the trial court erred in: 1) holding that respondents shall have and recover possession of the premises and real property at issue; 2) finding the Appellants did not have standing to bring the second amended counterclaim, thereby sustaining respondents' motion to dismiss the second amended counterclaim; and 3) denying Appellants' motion to dismiss, or in the alternative, motion for summary judgment.

In his points on appeal, Wilson contends as follows:

"1. Whether the trial court erred in dismissing the second amended counter claim?"

"2. Whether the trial court erred in making a finding that B.B. Anderson Corp. was administratively dissolved by the Missouri Secretary of State on June 24, 1991 and, therefore, had no standing to file the second amended counter claim."

Initially, we admonish counsel for the inadequacy of their briefs. However, Wilson's brief deserves special scrutiny. Our Supreme Court has held that it is not the function of this court to serve as advocate for any party to an appeal and that when counsel files non-conforming or otherwise inadequate briefs, this court need not supply additional research and briefing to supplement the deficiency. Thummel v. King, 570 S.W.2d 679, 686-687 (Mo. banc, 1978). Based on his brief, this is precisely what Wilson asks this court to do.

Wilson's points on appeal do not conform with Rule 84.04(d) which states that "the points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous...."

Wilson's points do not state that the trial court erred. Nor do they state wherein or why the trial court's actions were erroneous. The arguments are directed to the counterclaim and B.B. Anderson's standing to maintain the counterclaim. Wilson was not a party to the counterclaim. Thus, Wilson's points are directed to a judgment entered against another party. He has preserved nothing for appeal. Rule 84.13(a). Accordingly, we affirm the judgment against him.

The facts in this case are complex as the property at issue was conveyed numerous times within a short period of time. The briefs offered little assistance. In addition, each of the appellants' legal files were incomplete. However, we were able to glean from the record the following facts in a light most favorable to the trial court's ruling.

On March 20, 1985, respondents, Mitchel and Catherine Reben (Rebens), loaned Charles S. Wilson, Jr., Vora T. Wilson, and Carol Jean Wilson (Wilsons) $35,000. At that time, the Wilsons executed a promissory note payable to respondents signed by the Wilsons individually. A.L. Beal Undertaking Company (A.L. Beal) executed a Deed of Trust for the property at issue as security for the aforesaid note. Charles S. Wilson, Jr. signed the Deed of Trust as "President of A.L. Beal Undertaking Company" by authority of its Board of Directors and Vora T. Wilson signed as vice-president. Wilson admitted the property at issue was pledged as collateral for the promissory note. Subsequently, A.L. Beal conveyed its interest in the property at issue to NPS via quitclaim deed dated August 3, 1989. Once again, Wilson signed the deed as president of A.L. Beal.

Apparently the Wilsons defaulted on the note and respondents filed their petition to quiet title against NPS on May 18, 1990. Five months later, NPS filed a motion to dismiss the quiet title action for failure to state a claim upon which relief could be granted. In this motion, NPS alleged that the Rebens possessed no interest in the property at issue because A.L. Beal was not a party to the original promissory note and thus respondents' Deed of Trust fails for lack of consideration. The record does not contain any order regarding this motion.

On March 20, 1991, responding to the quiet title petition, NPS denied all substantive allegations and again claimed that respondents failed to state a claim upon which relief could be granted. At the same time, NPS filed a counterclaim to the quiet title action challenging the Rebens' interest in the property at issue. Five days later, NPS conveyed the property at issue to NFHS via quitclaim deed. The record reflects that Wilson was not a signatory party to this conveyance. The President of NFHS admitted that he was also involved with NPS. Additional testimony indicates that NFHS managed the property at issue and the funeral business from August, 1989 until March, 1991. One day after receiving the property at issue from NPS, NFHS conveyed the property to B.B. Anderson via quitclaim deed with an attached notarized acknowledgement that Wilson signed as president of B.B. Anderson. At trial, Wilson, a mortician, admitted that he operated the mortuary business from the property at issue on a day to day basis.

On May 30, 1991, NPS filed a motion to add B.B. Anderson as a party defendant. One day later, NPS and B.B. Anderson filed their first amended counterclaim to the quiet title action which again alleged that respondents' interest in the property was defective because the Deed of Trust lacked consideration. In addition, an addendum to a contract of February 8, 1991 was attached as an exhibit to the counterclaim stating that NPS agreed to bear all responsibility for any claims and/or disputes arising from the property at issue thereby exonerating B.B. Anderson. The record does not include the February 8, 1991 contract to which the above addendum refers. The addendum stated "[Wilson] desire[d] to take title to the business and property in the name of [B.B. Anderson]." Testimony reveals that one possible reason for this was because Wilson had a judgment against him at the time of the transfer and thus any property in his individual name would be subject to a judgment lien. The addendum was signed by "Charles S. Wilson, Jr.--Buyer."

On June 5, 1991, respondents dismissed their quiet title action. One day later, the court granted NPS' motion to add B.B. Anderson as a party defendant. On June 13, 1991, respondents foreclosed on the property at issue and were the successful bidders at the foreclosure sale. B.B. Anderson was administratively dissolved on June 24, 1991.

On July 3, 1991, respondents filed a petition for ejectment against Wilson and NFHS based on the Trustee's Deed obtained at the foreclosure sale. At that time NFHS was registered as doing business as A.L. Beal Mortuaries and respondents claimed that Wilson and NFHS were in possession of the property at issue. Also on July 3, 1991, NPS, NFHS, B.B. Anderson, and A.L. Beal filed a second amended counterclaim to the dismissed quiet title action in which they plead the following counts: 1) quiet title; 2) wrongful foreclosure; 3) cancellation of the Trustee's Deed and setting aside the foreclosure sale; 4) slander of title; and 5) injunctive relief. The record reflects that Wilson did not join in the counterclaim.

In this counterclaim, Appellants again alleged that respondents' interest was defective and unenforceable as the Deed of Trust lacked consideration because A.L. Beal was a stranger to the promissory note. Without such interest, Appellants alleged that respondents wrongfully foreclosed on the promissory note and therefore the Trustee's Deed should have been cancelled. Appellants further alleged that without the Trustee's Deed, respondents had no interest in the property at issue and thus the ejectment action was meritless.

On August 28, 1991, the trial court granted Appellants' motion to consolidate the ejectment action and the second amended counterclaim. On October 18, 1991, NFHS replied to respondents' ejectment petition denying all averments and claiming that respondents failed to state a claim upon which relief could be granted because NFHS and Wilson were not in possession of the property at issue and therefore were not proper parties. The record does not reflect that Wilson filed any type of responsive pleading, although the trial court's findings of fact imply that such a pleading was filed. On January 30, 1992, respondents answered Appellants' second amended counterclaim denying all substantive allegations and claiming that none of the Appellants were a real party in interest and therefore, the counterclaim should be dismissed.

The consolidated actions were heard on March 31, 1992, and the trial court sustained respondents' motion to dismiss Appellants' second amended counterclaim with prejudice at the start of the trial. In...