Sertoma Bldg. Corp. v. Johnson, No. 18430
| Decision Date | 19 July 1993 |
| Docket Number | No. 18430 |
| Citation | 857 S.W.2d 858 |
| Parties | SERTOMA BUILDING CORPORATION, Plaintiff-Respondent, v. Paul O. JOHNSON, Geneva Ann Johnson and Gary Fuller, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Stephen P. Seigel, Springfield, for defendants-appellants.
Theodore C. Salveter, III, Walker, Salveter, Lee & Graff, Springfield, for plaintiff-respondent.
Sertoma Building Corporation (plaintiff) brought an action against Paul O. Johnson, Geneva Ann Johnson and Gary Fuller, trustee, (collectively referred to as defendants) seeking an injunction prohibiting them from foreclosing on certain real estate in Greene County, Missouri. Defendants contended that the real estate was subject to a deed of trust that secured payment of a promissory note held by the Johnsons. Plaintiff also sought an order declaring the promissory note and deed of trust cancelled; a declaration that plaintiff was the owner of the real estate in question; and removal of Gary Fuller as trustee under the terms of the deed of trust. By a second count, plaintiff sought damages from defendants for slander of title to the real estate. The trial court granted summary judgment for plaintiff on Count I. The trial court found, in accordance with Rule 74.01(b), that there was no just reason for delay. This court affirms.
The ascertainment of facts upon which this appeal is determined is akin to review of a real estate abstract. A series of deeds and other real estate documents were attached to and made part of plaintiff's petition. Defendants admitted the validity of those documents.
The record on appeal includes copies of eighteen instruments that span a period of more than ten years. Plaintiff and defendants assert that these instruments affected the condition of the title to the real estate that is the subject of this appeal in varying ways. The particular instruments that are critical to this appeal will be identified in the parts of this opinion to which they apply.
Defendants present one point on appeal. It states:
The trial court erred in granting [plaintiff's] motion for summary judgement and in entering summary judgement against [defendants] for the reasons that there were genuine issues of law and fact to be adjudicated as to the validity and legal effect of the real estate conveyances referred to in [plaintiff's] petition and motion for summary judgement filed herein. Therefore, pursuant to RULE 74.02 MISSOURI RULES OF CIVIL PROCEDURE1, the granting of summary judgement herein was not proper.
Plaintiff, in its respondent's brief, complains that defendants' point on appeal does not comply with Rule 84.04(d). Plaintiff argues that it fails to state why the trial court's granting of summary judgment was erroneous or what "genuine issues of law and fact" existed. Plaintiff is correct.
Rule 84.04(d) requires "points relied on" to state what action or ruling of the trial court is claimed to be erroneous, why it is erroneous, and what was before the trial court that would have supported taking the action that the party appealing contends should have been taken. See Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978); and Bentlage v. Springgate, 793 S.W.2d 228, 229 (Mo.App.1990).
The ruling about which defendants complain is the trial court's granting of the motion for summary judgment. Defendants argue that this ruling was erroneous because pleadings and discovery documents on file disclosed genuine issues regarding material facts and application of law. However, the point on appeal does not identify what issues existed regarding material facts or how the law was misapplied. It does not state "wherein" the actions about which defendants complain are erroneous. Defendants' point on appeal does not comply with Rule 84.04(d). This court's review will be limited to "look[ing] to the argument portion of the brief ... for the purpose of determining whether there has been plain error affecting substantial rights which, though not properly preserved, may have resulted in a manifest injustice or a miscarriage of justice." Hoffman v. Koehler, 757 S.W.2d 289, 292 (Mo.App.1988); Rule 84.13(c).
Plaintiff received a warranty deed to the real estate 2 dated June 25, 1990, from Sertoma Club of Springfield, Missouri, and Heart of the Ozarks Sertoma Club, Inc. Defendants undertook to foreclose on the real estate by reason of a deed of trust ("deed of trust # 2") dated July 13, 1982, by which New Concept Housing, Inc., conveyed the real estate to Wallace N. Springer, Jr., trustee for Southwest Village Water Co. to secure payment of a promissory note. Plaintiff obtained a restraining order stopping the foreclosure sale and, ultimately, secured the summary judgment from which defendants appeal.
Defendants' claim is dependent on the validity of the lien represented by deed of trust # 2. The following chronology produced that deed of trust:
December 10, 1980 Mid-America Business College, Inc., conveyed the real estate to A-1 Bail Bonding, Inc.
October 31, 1980 (Recorded 12/11/80) A-1 Bail Bonding, Inc., conveyed the real estate, by deed of trust ("deed of trust # 1"), to John K. Hulston, trustee for Wellman Educational Resources, Inc., to secure payment of a promissory note.
March 16, 1981 A-1 Bail Bonding, Inc., conveyed the real estate to Don E. Littlejohn and Joyce D. Littlejohn, husband and wife. 3
May 4, 1982 A-1 Bail Bonding, Inc., conveyed the real estate to New Concept Housing, Inc. July 13, 1982 New Concept Housing, Inc., conveyed the real estate, by deed of trust # 2, to Wallace N. Springer, Jr., trustee for Southwest Village Water Co. to secure payment of a promissory note.
The genesis of A-1 Bail Bonding, Inc.'s involvement in defendants' claim is its May 4, 1982, warranty deed to New Concept Housing, Inc. After receiving the May 4 deed from A-1 Bail Bonding, Inc., New Concept Housing, Inc., executed deed of trust # 2. It is that deed of trust and the promissory note purportedly secured by it that defendants Paul O. Johnson and Geneva Ann Johnson claim they now own. That promissory note and deed of trust were the bases for the attempted foreclosure that the trial court enjoined. The Johnsons rely on the following events and transactions for the claim they raise by this appeal:
September 28, 1984 Southwest Village Water Co. "assigned" the promissory note that was purportedly secured by deed of trust # 2 and the deed of trust to Paul O. Johnson and Geneva Ann Johnson.
May 5, 1986 Paul O. Johnson and Geneva Ann Johnson "assigned" the promissory note purportedly secured by deed of trust # 2 and the deed of trust to Home Loan Mortgage Corporation.
October 22, ...
To continue reading
Request your trial
-
Parciak v. Parciak
...for appellate review, may have resulted in a manifest injustice or a miscarriage of justice. Rule 84.13(c); Sertoma Bldg. Corp. v. Johnson, 857 S.W.2d 858, 859 (Mo. App. S.D. 1993). We exercise our discretion to do so concerning this particular issue. A trial court has broad discretion in d......
-
Hocker Oil Co., Inc. v. Barker-Phillips-Jackson, Inc.
...to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder." Sertoma Bldg. Corp. v. Johnson, 857 S.W.2d 858, 859 (Mo.App.1993), explains, "Rule 84.04(d) requires 'points relied on' to state what action or ruling of the trial court is claime......
-
Hocker Oil Co. v. Jackson, SD22552
...to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder." Sertoma Bldg. Corp. v. Johnson, 857 S.W.2d 858, 859 (Mo.App. 1993), explains, "Rule 84.04(d) requires 'points relied on' to state what action or ruling of the trial court is claim......
-
State ex rel. Missouri Highway and Transp. Com'n v. Quiko
...which, though not properly preserved, may have resulted in a manifest injustice or a miscarriage of justice. Sertoma Bldg. Corp. v. Johnson, 857 S.W.2d 858, 859 (Mo.App. S.D.1993). We are mindful, however, that the plain error doctrine is rarely resorted to in civil cases. Brown v. Mercanti......