Spires v. Lawless

• Citation: 69 A.L.R.3d 762,493 S.W.2d 65
• Decision Date: 12 February 1973
• Docket Number: No. 9262,9262
• Parties: Richard E. SPIRES and Frances T. Spires, Plaintiffs-Appellants, v. David J. LAWLESS and Eleanor L. Lawless, Defendants-Respondents, and William R. Edgar, Jr., Trustee, Defendant.
• Court: Missouri Court of Appeals

Page 65

493 S.W.2d 65

69 A.L.R.3d 762

Richard E. SPIRES and Frances T. Spires, Plaintiffs-Appellants, v. David J. LAWLESS and Eleanor L. Lawless, Defendants-Respondents, and William R. Edgar, Jr., Trustee, Defendant.

No. 9262.

Missouri Court of Appeals, Springfield District.

Feb. 12, 1973.

Rehearing Denied Feb. 28, 1973.

Transfer Denied April 9, 1973.

Tyree C. Derrick and Ronald A. McClary, St. Louis, Robert A. McIlrath, Flat River, for plaintiffs-appellants.

J. B. Schnapp, Schnapp, Graham & Reid, Fredericktown, for defendants-respondents.

HOGAN, Judge.

This is an action for wrongful foreclosure of a deed of trust. After the action was commenced, the cause was dismissed as to the trustee on his motion, and the order of dismissal was made final and appealable pursuant to the provisions of Rule 81.06. ¹ Our record reflects no appeal from that order. The cause proceeded against defendants David and Eleanor Lawless, the cestuis que trust, to whom we shall refer as the mortgagees. This appeal is taken from the trial court's entry of a summary judgment for the defendants.

In briefest stetch, the background facts are that in May 1968 the plaintiffs purchased a 360 acre tract of land from the defendants. In payment or in part payment therefor, they made and delivered to defendants their promissory note in the amount of $71,000, payable in installments at the rate of $508.68 on the first day of May 1968, and a like amount on the first day of each month thereafter until the note was fully paid. Plaintiffs, to whom we shall refer as the mortgagors, also executed a deed of trust conveying the land to defendant Edgar as trustee to secure the payment of the note.

The plaintiffs made periodic but usually untimely payments on the note from May 1, 1968, through September 1969, with the exception of the October 1968 installment, the payment of which was deferred by agreement of the parties upon terms which are in dispute. On October 9, 1969, defendant David Lawless directed the trustee to advertise the property for sale. On November 10, 1969, the property was sold to defendants (according to plaintiffs' petition) for the sum of $70,000. This action followed.

Plaintiffs' original petition was filed on January 2, 1970. It was amended several times, but the petition upon which the motion was taken sets out the substance of the transaction we have just recited, and further avers that the October 1968 installment was 'skipped' with the express consent of the mortgages; that despite defendants' agreement to allow plaintiffs to defer the October 1968 installment, and despite the fact that no other payments were due and plaintiffs were not otherwise in default, defendants unlawfully exercised the power of sale contained in the deed of trust. Alternatively--and we are merely stating the bare substance of the petition--plaintiffs allege that defendants, by accepting payments late, and by giving plaintiffs permission to defer payment of the October 1968 installment, lulled the plaintiffs into a sense of security and caused them to believe that the conditions of the deed of trust would not be strictly enforced, but nevertheless foreclosed the deed of trust without giving plaintiffs notice of defendants' intention to foreclose and without giving plaintiffs a reasonable opportunity to make any delinquent payments or remedy any other default which might have constituted a ground for exercise of the power of sale.

While the cause was pending in the trial court, before and after the defendants filed their motion for summary judgment, then withdrew it, and then renewed it, defendants filed 1) two sets of interrogatories, consisting of 65 individual questions directed to each plaintiff; 2) two sets of requests for admissions; and 3) ten affidavits in support of the motion for summary judgment. The plaintiffs answered the interrogatories and the requests for admissions and plaintiff Frances Spires filed an affidavit in opposition to the motion for summary judgment. The deed of trust, which incorporates the note, is included in the record, as well as a letter written to Mrs. Spires by defendant David Lawless. In the view we take of this appeal, it is unnecessary to burden the opinion by setting forth the substance of all these documents merely for the purpose of this background statement, and their contents will be noted only to the extent that they are germane to the matters discussed.

Several preliminary observations should be made to define and limit the scope of this opinion. In the first place it should be noted that although we do review the case upon the whole record, and a correct result will not be reversed because the trial court based its judgment upon an incorrect or insufficient reason, as noted in Swink v. Swink, Mo., 367 S.W.2d 575, 577--578(1--3), and Landers v. Smith, Mo.App., 379 S.W.2d 884, 886(1), neither of those two cases purports to state fully the rules governing the review of summary judgments, as the defendants seem to assume. This court fully stated the basic principles governing the review of summary judgments in Pagan v. City of Kennett, Mo.App., 427 S.W.2d 251, 252--253(1--4), from which we quote:

'. . . In ruling a motion for summary judgment, it is the duty of the trial court in the first instance, and it becomes our duty on appeal, to scrutinize the record in the light most favorable to the party against whom the motion was filed and the judgment was rendered, and to accord to such party the benefit of every doubt. Wood v. James B. Nutter & Co., Mo., 416 S.W.2d 635, 636(1); Campbell v. Stout, Mo.App., 408 S.W.2d 585, 588(3); Gasen's Drug Stores, Inc. v. Jones Enterprises, Inc., Mo.App., 388 S.W.2d 495, 500(4). A summary judgment may be rendered where, but only where, the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue of a material fact and that the movant is entitled to judgment as a matter of law (E. O. Dorsch Elec. Co. v. Knickerbocker Const. Co., Mo., 417 S.W.2d 936, 939; Stoffel v. Mayfair-Lennox Hotels, Inc., Mo.App., 387 S.W.2d 188, 190(2)); "(a) genuine issue of fact exists for the purpose of avoiding a summary judgment whenever there is the slightest doubt as to the facts" (Maddock v. Lewis, Mo., 386 S.W.2d 406, 409, certiorari denied 381 U.S. 929, 85 S.Ct. 1569, 14 L.Ed.2d 688; Elliott v. Harris, Mo. (banc), 423 S.W.2d 831, 835); and the burden rests upon the movant, in this instance upon defendant, to show by 'unassailable proof' (Rule 74.04(h)) that there is no genuine issue of fact (Nelson v. Browning, Mo., 391 S.W.2d 873, 877(1); Clampett, Summary Judgments in Missouri, 22 J.Mo.Bar 14, 17 (1966)) and that movant is entitled to judgment as a matter of law. Norman v. Willis, Mo.App., 402 S.W.2d 46, 47(1). See Cure v. City of Jefferson, Mo., 380 S.W.2d 305, 310(2). . . .'

Two further limitations on the scope of the opinion should be noted. This case, as is possibly true of all cases involving mortgages, presents a number of complex questions, and on this appeal the parties have indirectly raised a number of involved but peripheral issues. We do not undertake to resolve this case on its merits, but only to decide if a summary judgment was warranted, and we shall therefore address ourselves only to those questions essential and necessary to a proper disposition of that particular issue. Finally, it should emphasized that the case is necessarily considered on its peculiar facts, since the power to sell under a deed of trust is a matter of contract between the parties on the conditions expressed in the instrument, and does not exist independently of it. Adams v. Boyd, 332 Mo. 484, 490, 58 S.W.2d 704, 707(6).

Stating the positions of the parties very generally, it may be said that the plaintiffs have contented themselves in their original brief with a statement that the defendants failed to show by unassailable proof that no genuine issue of material fact existed and that they were entitled to judgment as a matter of law. In support of this single contention, plaintiffs have cited eleven cases, some dealing with the showing necessary to sustain a summary judgment, others bearing on matters incidentally developed in the 'argument' part of plaintiffs' brief. Technically, the brief is deficient, for Rule 84.04(d) contemplates that the 'points relied on' shall constitute a short, concise outline of that part of the brief called an 'argument', Conser v. Atchison, T. & S.F. Ry. Co., Mo., 266 S.W.2d 587, 589(2), and para. (e) of Rule 84.04 provides in terms that the 'argument' shall substantially follow the order of the 'points relied on'. The consequence of plaintiffs' failure to follow paras. (d) and (e) of Rule 84.04, in this case, is that their theory of error is imperfectly articulated and difficult to follow, even though they have attempted to clarify their position on oral argument. Nonetheless, the defendants seem to have experienced no difficulty in answering the plaintiffs' brief and have made no objection to it in this court. Aside from procedural points, defendants argue that on the date foreclosure proceedings were commenced the plaintiffs were in default for failure to pay the 1968 taxes when due, and were also in default because the October 1969 payment was not timely made. They further argue that even assuming plaintiffs were entitled to personal notice of defendants' intention to foreclose, the record shows that plaintiffs had such notice, and that in any event, plaintiffs are not entitled to maintain this action because they did not tender the November 1, 1969, installment which became due prior to the sale, and failed to indemnify defendant David Lawless by reimbursing him for the premiums he was obliged to advance in September 1969 to keep the property insured. Therefore, despite the diffuseness of plaintiffs' brief, and the incomplete articulation of their theory of error on appeal, the essential,...