Skyles v. Burge, 60294

• Decision Date: 21 April 1992
• Docket Number: No. 60294,60294
• Citation: 830 S.W.2d 497
• Parties: Steven R. SKYLES and Teresa M. Skyles, Plaintiffs/Appellants, v. Chester BURGE and Leeta Burge, Defendants/Respondents.
• Court: Missouri Court of Appeals

Page 497

830 S.W.2d 497

Steven R. SKYLES and Teresa M. Skyles, Plaintiffs/Appellants, v. Chester BURGE and Leeta Burge, Defendants/Respondents.

No. 60294.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 21, 1992.

Thomas Carter, II, Robert C. Cook, Moser and Marsalek, St. Louis, for plaintiffs/appellants.

M. Zane Yates, St. Louis, for defendants/respondents.

SMITH, Presiding Judge.

Plaintiffs, Steven and Teresa Skyles, appeal from a judgment after summary judgment on the issue of liability and a full evidentiary trial on the issue of damages in their favor on Count IV of their petition which alleged a cause of action for declaratory judgment and from an order setting aside a judgment on Count VII which alleged a cause of action for negligence. The judgment appealed was entered after remand of a prior appeal. Skyles v. Burge, 789 S.W.2d 116 (Mo.App.1990). In this appeal plaintiffs allege the court erred in: (1) denying attorney's fees on Count IV; (2) denying any general compensatory damages on Count IV; and (3) withdrawing a judgment on Count VII because that count was not properly before the court during the trial. We affirm. ¹

The facts underlying this dispute are detailed in our previous opinion, Skyles I. This suit resulted when defendants declined plaintiffs' offer to prepay the balance on a purchase money note for a single family residence in St. Louis County. Plaintiffs purchased the residence from defendants and signed a promissory note and deed of trust, both of which were silent as to prepayment.

Plaintiffs moved for summary judgment on Count II (Breach of Contract) and Count IV (Declaratory Judgment). They claimed in Count IV a statutory right to prepay their mortgage indebtedness pursuant to § 408.036 RSMo 1986, and dismissed without prejudice the remaining nine counts of their petition. Defendants also moved for summary judgment. The trial court sustained defendants' motion for summary judgment on Counts II and IV and denied defendants' claim for attorney's fees. Both parties appealed. We remanded in Skyles I after deciding prepayment was not prohibited as a matter of law in a residential real estate transaction, where the note does not by specific language either prohibit or permit prepayment. Skyles, 789 S.W.2d at 120. We also held the court properly denied defendants' claim for attorney's fees because the trial court lacked jurisdiction to enter such a judgment. Id. at 121. We commented that our ruling was without prejudice on defendants' right to seek attorney's fees. Id.

On remand plaintiffs filed a new motion for summary judgment on Count IV (Declaratory Judgment) and Count VII (Negligence). They also filed an amendment by interlineation to their second amended petition which pled for special, compensatory and punitive damages. The court sustained plaintiffs' motion as to liability on Counts IV and VII and set the issue of damages for trial. At the hearing on damages, plaintiffs testified and offered the testimony of J. Bernard Kolker, an accountant and licensed real estate broker. Chester Burge testified for defendants.

The court entered the following order:

1. As to Count VII of Plaintiffs' Second Amended Petition, there was nothing before the Court on which to base an award of summary judgment, said Count VII having been previously dismissed by Plaintiffs and there being no reinstatement of that claim. Therefore, the judgment of September 11, 1990, as it pertains to Count VII (negligence per se) of Plaintiffs' Second Amended Petition, is vacated, set aside and for naught held.

* * * * * *

[as to Count IV]

8. From May 27, 1987, to February 27, 1991, 45 months, the differential between 9% and 12% was and is $3,234.15 ($17.87 X 45).

9. From February 27, 1991, for the balance of the loan, to wit, 25 years (300 months) less the 59 months from the inception of the loan payments at 12%, namely 241 months, the differential at 1% (10% vs. 9%) is $5,379.12 ($22.32 X 241).

10. Plaintiffs' out-of-pocket expenses for refinancing are $260 for the loan application fee and credit report at Community Federal Savings and Loan in 1987.

11. Defendants' are entitled to a 2% prepayment penalty on the principal balance existing on May 27, 1987, namely 2% of $32,122.17 or $642.44.

12. Under the law, Plaintiffs are not entitled to an award of attorney fees. Duncan v. Townsend, 325 S.W.2d 67 (Mo.App.1959); Ohlendorf v. Feinstein, 697 S.W.2d 553 (Mo.App.1985). For the same reason, Plaintiffs additional claims for damages, both compensatory and punitive, are not allowable.

In their first point plaintiffs allege: THE TRIAL COURT ERRED BY DENYING ATTORNEYS' FEES TO THE PREVAILING PLAINTIFFS WHEN THEIR CAUSE OF ACTION SOUNDED IN EQUITY AND JUSTICE DEMANDED SUCH FEES UNDER THE FACTS OF THIS CASE.

The law in Missouri regarding attorneys' fees is clear. They are recoverable "when authorized by statute or contract, when they are incurred due to involvement in collateral litigation, or when a court of equity finds it necessary to award them in order to balance benefits." Ohlendorf v. Feinstein, 697 S.W.2d 553, 557 (Mo.App.1985). See also § 527.100 RSMo 1986; Washington Univ. v. Royal Crown Bottling Co., 801 S.W.2d 458, 468-9 (Mo.App.1990) ("costs" in a declaratory judgment action do not include attorney's fees unless plaintiffs show "special circumstances" under the "Bernheimer [ v. First National Bank of Kansas City, 359 Mo. 1119, 225 S.W.2d 745] [ (1945) ] exception" or a court of equity finds it necessary to balance benefits which occurs only if very unusual circumstances can be shown). We find none of the conditions allowing for attorney's fees exist here.

Nor are plaintiffs entitled to attorney's fees in light of Skyles I. Therein, we merely observed defendants were not precluded from petitioning the trial court for attorney's fees. Obviously, we did not know how the case would be postured on remand or whether either party would be entitled to attorney's fees as a matter of law. Point denied.

Next, plaintiffs allege the court erred in denying them "general compensatory damages properly sought in a general prayer for relief incident to the equity case before the court." Plaintiffs prayed for "General compensatory damages in the amount of $50,000." Plaintiffs argue the court wrongly barred uncompensated personal injuries and mental anguish on the negligence count (Count VII) and "special and general damages as a result of personal injury caused as a natural and logical consequence of defendants' wrongful conduct" as well as compensatory financial damages of $71,829.40 testified to by accountant J. Bernard Kolker on behalf of plaintiffs on Count IV.

Plaintiffs' claims for compensatory damages on Count IV are not barred as a matter of law. The court had the authority to grant legal relief even though the case was brought as an equitable action. See Siesta Manor, Inc. v. Community Federal, 716 S.W.2d 835, 838 (Mo.App.1986). "[A] court of equity may award damages where they are necessary in order to do equity." Id. at 839. Thus, if the court's order implies plaintiffs are not entitled to general compensatory damages on Count IV as a matter of law it is erroneous. We find, however, no competent evidence to justify the award of damages other than those awarded by the court. See Fesperman v. Silver Dollar City, Inc., 796 S.W.2d 384, 387-8 (Mo.App.1990). (We affirm correct result even where trial court gave wrong reason therefor).

In their second amended petition by interlineation, plaintiffs pled they experienced emotional and psychological injury and anxiety disorder as a result of defendants' actions and prayed for general compensatory damages in the amount of $50,000. Defendants did not file a motion for a more definite statement. Plaintiffs testified regarding health complaints. However, the evidence was insufficient to submit a claim for resulting medical complaints. There was no proof of necessity, reasonableness, or amount of medical services incurred as a result of plaintiffs' alleged personal injuries. See Spica v. McDonald, 334 S.W.2d 365, 371 (Mo.1960). Additionally, plaintiffs failed to prove by expert medical testimony that their emotional distress or mental injury which did not result in physical injury was medically diagnosed and of sufficient severity as to be medically significant. See Bass v. Nooney Co., 646 S.W.2d 765, 772-3 (Mo. banc 1983).

Plaintiffs did not plead compensatory or resulting economic loss. They did, however, produce a witness who professed to be both an accountant and a real estate expert. He testified to alleged compensatory damages of $71,829.40. In so doing he utilized certain documents which were admitted into evidence but which plaintiffs have not chosen to...