Redemption Bond, Lot 231 Bridlespur, 2nd Plat v. Adelman, WD

• Decision Date: 25 June 1985
• Docket Number: No. WD,WD
• Citation: 693 S.W.2d 325
• Parties: REDEMPTION BOND, LOT 231 BRIDLESPUR, 2ND PLAT, Respondent, v. Robert I. ADELMAN, Appellant. 36217.
• Court: Missouri Court of Appeals

Page 325

693 S.W.2d 325

REDEMPTION BOND, LOT 231 BRIDLESPUR, 2ND PLAT, Respondent, v. Robert I. ADELMAN, Appellant.

No. WD 36217.

Missouri Court of Appeals Western District.

June 25, 1985.

Robert I. Adelman, Kansas City, pro se.

Timothy K. McNamara, Kansas City, for respondent.

Before LOWENSTEIN, P.J., and SHANGLER and SOMERVILLE, JJ.

LOWENSTEIN, Judge.

This appeal involves the foreclosure sale by Centerre Bank of a deed of trust held on Lot 231 Bridlespur Addition, owned by Betty and Robert Adelman in Jackson County, Missouri. This deed of trust was attacked by Betty Adelman in a companion case, Adelman v. Centerre Bank of Kansas City, No. 35921 slip opinion (Mo.App.W.D. June 25, 1985), where this court held the deed to be valid as to both the husband's and wife's interest. As set out in the opinion in case No. 35921, the Adelman's executed a security agreement and deed of trust on this real estate concurrent with the obtaining of a loan to a corporation of which they were the principal officers, director's and shareholders.

At the foreclosure sale, Centerre purchased the property and the Adelmans gave Centerre their written notice of intent to redeem in accordance with § 443.410 RSMo 1978. A redemption bond was approved for $8,500 and when a year passed without the Adelmans redeeming the property, Centerre moved to assess damages on the bond. The trial court entered a judgment for damages of $6,764.59 against the bond which included $1,802.50 for attorney fees and $175.00 for appraiser fees. The Adelmans contend neither attorney or appraiser fees should have been included in the judgment. The standard of review is as a court-tried case.

In this state, attorney's fees are not recoverable by a successful litigant unless: (1) provided for by statute or contract; (2) in very unusual circumstances where equity demands a balance of benefits; or (3) when incurred because of involvement in collateral litigation. Cimasi v. City of Fenton, 659 S.W.2d 532, 537 (Mo.App.1983); Porter v. Hawks Nest, Inc., 659 S.W.2d 786, 789 (Mo.App.1983); Forsythe v. Starnes, 554 S.W.2d 100, 111 (Mo.App.1977). Also, attorney's fees generally are not considered as costs. Schoemehl v. Whaley, 598 S.W.2d 607, 609 (Mo.App.1980). Centerre makes no argument for and the facts here do not support the award of fee's as damages because of unusual circumstances or collateral litigation. There is no contention that the redemption bond or deed of trust provided for attorney's fees, so the alternative source would be the applicable statute. The second sentence of § 443.420 RSMo 1978 reads in pertinent part:

Said security shall be by bond executed by the person or persons so entitled to redeem with at least one good surety in a sum amply sufficient to cover the aggregate of all said sums exclusive of the principal debt or obligation, but including damages and interest, to be so absolutely paid in event redemption is not made and the aggregate of all such shall be the measure of damages to be paid in satisfaction of said bond if such redemption is not made. (Emphasis added.)

Since the statute only uses the term "damages" and contains no specific authorization for attorney fees, this court finds such fees are not recoverable.

Centerre would have this court by anology apply the result reached in situations dealing with injunction bonds. But as was pointed out in Kelder v. Dale, 313 S.W.2d 59, 62 (Mo.App.1958), attorney's fees are allowable only in those instances where the injunction was improvidently granted, the underlying principle being that "defendant has been compelled to employ such aid in getting rid of an unjust restriction...