Southern Mo. Dist. Council of The Assemblies of God Inc. v. Kirk

• Decision Date: 28 January 2011
• Docket Number: No. SD 28999.,SD 28999.
• Parties: SOUTHERN MISSOURI DISTRICT COUNCIL OF THE ASSEMBLIES OF GOD, INC., Plaintiff–Respondent,v.Paul C. KIRK, and Timbercreek Assembly of God, Inc., Defendants–Appellants.
• Court: Missouri Court of Appeals

334 S.W.3d 599

SOUTHERN MISSOURI DISTRICT COUNCIL OF THE ASSEMBLIES OF GOD, INC., Plaintiff–Respondent,
v.
Paul C. KIRK, and Timbercreek Assembly of God, Inc., Defendants–Appellants.

No. SD 28999.

Missouri Court of Appeals, Southern District, Division One.

Jan. 28, 2011.Motion for Rehearing or Reconsideration and

Transfer to Supreme Court Denied Feb. 17, 2011. Application for Transfer Denied April 26, 2011.

[334 S.W.3d 600]

Jerry L. Reynolds, Springfield, MO, for Appellants.John C. Holstein, Springfield, MO, for Respondent.JEFFREY W. BATES, Judge.

Defendants Paul C. Kirk (Kirk) and Timbercreek Assembly of God, Inc. (hereinafter collectively referred to as Timbercreek) appeal from a summary judgment granted in favor of Plaintiff Southern Missouri District Council of the Assemblies of God, Inc. (the District). Timbercreek contends the trial court erred in granting summary judgment in favor of the District. We do not reach the merits of Timbercreek's arguments. For the reasons set out below, we instead grant the District's motion to dismiss this appeal.¹

This lawsuit was filed by the District in February 2007. The petition alleged that, according to the District's bylaws, it became the owner of certain real and personal property in Timbercreek's possession because Timbercreek had severed its relationship with the District. Both parties filed motions for summary judgment. The trial court granted the District's motion and denied Timbercreek's motion. The amended judgment entered on January 31, 2008 determined that the District was the owner of certain real and personal property described therein (hereinafter, “the property”).

Immediately after the amended judgment was entered, the parties' attorneys began discussing a transfer of possession of the property to the District. A letter

[334 S.W.3d 601]

dated February 7, 2008 from the District's attorney to Timbercreek's attorney stated:

This will confirm our phone conference on Friday, February 1st, where you called me early in the afternoon in response to my letter of January 31st to inform me that your client would be tendering possession of the premises and all of the personal property located thereon and surrendering all of the keys to all of the buildings on the property in accordance with the Judgment no later than Friday, February 8th.

This will confirm that should your client fail to tender possession of the real property and tender all of the keys no later than Friday, February 8th, as you represented in our phone conference on February 1st, and as you confirmed in our phone conference this morning, we will proceed with enforcement of the Judgment by any means we deem necessary.

As the above letter indicates, no proceedings to enforce the judgment were then pending. A second letter dated the same day from Timbercreek's attorney to the District's attorneys stated:

Pursuant to the Judgment entered by [the trial court] my clients have decided to suffer the Judgment and tender the keys to the church property so that they will not be in contempt of the Judgment.

My clients strongly disagree with the Judgment of the Court and intend to appeal the Judgment seeking a complete reversal of the Judgment. Upon the reversal of the Judgment, please deliver these keys directly back to me.

Nothing in the materials before this Court indicate that Timbercreek sought to obtain a stay of execution by presenting a supersedeas bond for the trial court's approval, as provided under Rule 81.09.² In addition, the possibility of obtaining a stay of execution pursuant to Rule 76.25 was eliminated by Timbercreek's decision to surrender possession of the property prior to any execution being levied. The District obtained possession of the property at 11:40 a.m. on February 8th when a representative of the District's law firm took possession of the keys to the building and the personal property located therein. Timbercreek filed its notice of appeal on February 27, 2008.

A threshold question in the appellate review of a controversy is whether the matter has become moot due to subsequent events. See State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001). “In deciding whether a case is moot, an appellate court is allowed to consider matters outside the record.” Id.; Medlin v. RLC., Inc., 194 S.W.3d 926, 930 (Mo.App.2006). While this appeal was pending, the District filed a motion to dismiss on the ground that Timbercreek's...