White v. Mid-Continent Investments, Inc., MID-CONTINENT

Citation789 S.W.2d 34
Decision Date23 January 1990
Docket NumberNo. WD,MID-CONTINENT,WD
PartiesJoyce A. WHITE, Appellant, v.INVESTMENTS, INC., et al., Respondents. 41720.
CourtCourt of Appeal of Missouri (US)

Joyce A. White, Kansas City, pro se.

Jeffrey S. Bay, Kansas City, for respondents.

Before NUGENT, C.J., FENNER, J., and WASSERSTROM, Senior Judge.

NUGENT, Chief Judge.

Plaintiff Joyce A. White appeals from the judgment of the trial court denying her petition for a permanent or temporary restraining order to prevent the defendant, Mid-Continent Investments, Inc. (MCI) from foreclosing on the mortgage on her house and granting MCI's motion for a judgment on the merits without the presentation of defendant's evidence.

Ms. White contends that the court erred in accelerating the trial on the merits of Count V of her petition in conjunction with the hearing on her motion for a preliminary injunction; that it incorrectly applied the law in granting MCI's motion for a directed verdict; and that it erred in dissolving the existing temporary restraining order enjoining MCI from foreclosing.

We affirm the judgment of the trial court.

The facts of this case weigh heavily against Ms. White. Since 1976, she has borrowed on the strength of four mortgages on her house a total of nearly $130,000. She has defaulted on all four loans, and the accumulated balances due, penalties and late fees, back taxes, delinquent insurance payments, and attorney's fees that she owes total over $160,000. She and her husband, Delbert Jackson, have judgments of over $30,000 against them individually and jointly that appear as liens against the subject property. In addition, a Kansas jury has found her guilty of forgery.

In 1976, while still unmarried, Ms. White executed a $50,000 note and deed of trust in favor of Capitol Federal Savings for the purchase of a house. She avers that sometime after the execution of those instruments she married Mr. Jackson, although she has produced no evidence of the fact or date of the marriage. She further alleges that she notified Capitol Federal of her assent to Mr. Jackson's claim of title to a one-half share in the residence and of his assumption of one-half liability in the mortgage held by Capitol Federal, but produced no evidence to support those allegations.

In 1984, Ms. White defaulted on her payments to Capitol Federal. She maintains that the lender then gave her and her husband the option of paying at once the $5,729.08 in delinquent payments or refinancing the balance of the note at an increased rate of interest. At Capitol Federal's office, on November 5, 1983, Ms. White signed a "note endorsement" increasing the interest rate from eight and three quarters to thirteen percent, but she alleges that an officer there told her that the instrument would remain ineffective until her husband also signed. She also signed a cancellation notice and a Federal Truth-In-Lending Disclosure Statement stating that her monthly principal and interest payment as of December 10, 1983, would total $529.67, an increase of approximately $130 from her previous monthly payment of $394.50.

Ms. White testified that her husband, who did not testify, refused to sign the "note endorsement," preferring instead that they tender the delinquent payments and maintain the original interest rate, therefore, she gave Capitol Federal a cashier's check for $5,729.08 dated November 5, 1984. MCI denied that Capitol Federal gave Ms. White and her husband the optional ways of curing the default. Instead, the defendant asserts, Capitol Federal required that Ms. White cure the default by paying the delinquent balance and refinancing the note.

Capitol Federal's "Annual Home Loan Statement" to Ms. White, dated December 31, 1983, included in the heading the amount of her 1983 monthly principal and interest payment, $394.50. Ms. White also introduced into the record those year-end statements for 1984, 1985 and 1987, none of which contains in the heading any reference to the new monthly payments. Rather, each contains a hand-written notation that the "P + I", "Principal + Interest" or "Prin + Intrt" equalled $529.67, the amount, MCI maintains, equal to the monthly principal and interest payments under the terms of the 1984 "note endorsement." Moreover, none of the statements show clearly what she owed and what in fact she paid in interest and principal each month. The interest charges in 1985 totalled over $2,200 more, and those in 1987 over $1,100 more than did those in 1983.

In the spring of 1988, Ms. White again defaulted, and in a letter dated June 22, 1988, Capitol Federal advised her that unless she paid the delinquent amount due, $2,150.48, by July 5, it would begin foreclosure proceedings on her house. On Saturday, July 9, Ms. White went to Capitol Federal and delivered to staff members a cashier's check for the amount due. An officer returned the check promptly the following Monday with a letter informing her that, because it had already begun foreclosure proceedings, Capitol Federal could not accept the check.

On July 12, Ms. White again sent the check and a long letter to Capitol Federal, which again returned her check. On July 19, the Kansas City Daily Record published notice of the commencement of Capitol Federal's foreclosure proceeding. On August 15, she filed suit (since then dismissed by the trial court) seeking to enjoin the foreclosure.

Within the next three days, Capitol Federal assigned to MCI Ms. White's 1976 note and deed of trust and the 1984 "note endorsement." That same month, Ms. White learned from Capitol Federal of the assignment to MCI. She also examined the record of the assignment in the office of the Jackson County recorder of deeds.

In addition, in a letter dated November 4, 1988, MCI informed Ms. White of Capitol Federal's assignment and invited her to cure the default by paying the total amount of the delinquency, $4,406.88, by November 14. In a letter dated November 17, 1988, she informed MCI that, because of her lawsuit against Capitol Federal, which she said the trial court had "erroneously dismissed," she would not pay the amount requested by MCI. She further stated that she deemed the assignment invalid. Having received no payment by November 14, MCI announced in the Daily Record on December 29, 1988, that it would sell the house at a foreclosure sale on January 5, 1989.

On January 5, Ms. White filed the instant suit, naming three defendants: MCI, Jeffrey Bay, MCI's counsel, who also serves as the trustee, and Capitol Federal. 1 On that date, after a short hearing, the trial court issued a temporary restraining order enjoining MCI's foreclosure.

On January 20, although it did not address other counts in her petition, the court took up and accelerated trial on the merits of Count V, which sought a permanent injunction against the foreclosure and a declaratory judgment that MCI had invalidly accelerated repayment on her note. The defendants moved that the court enter judgment without the necessity of their putting on evidence, and the court granted the motion. Ms. White then moved for either a reconsideration of the ruling or a new trial, and at a hearing on February 5 the court denied her motions. Ms. White appeals the judgment on Count V of the court.

At the hearing on January 20, the trial judge specifically announced and entered an order stating that he had denied Ms. White's request for a permanent injunction. Thus, he entered a final and appealable order. Reproductive Health Services, Inc. v. Lee, 660 S.W.2d 330, 339 (Mo.App.1983); Bayer v. Associated Underwriters, Inc., 402 S.W.2d 11 (Mo.App.1966). The court in Reproductive Health Services, Inc., at 339, noted a "jurisdictional line of demarcation" between decisions on permanent as opposed to temporary injunctions. Decisions on permanent injunctions occur after an adjudication of the merits of the case and, therefore, can be appealed; decisions on temporary injunctions do not involve a trial on the merits, and thus no appeal will lie. Id.

We review this case within the limitations imposed on appellate review by Murphy v. Carron, 536 S.W.2d 30 (Mo.1976) (en banc), which holds that the appellate court must affirm the trial court's judgment unless it erroneously declares or applies the law or no substantial evidence supports it or the weight of the evidence compels another result. Id. at 32.

In Ms. White's first point she argues that the trial court erred in accelerating trial on the merits of her prayer for a permanent injunction against MCI's foreclosure on her house because the defendants had not yet filed an answer with the court. She further argues that the court erred in this acceleration at the hearing on January 20, 1989, because there she raised a timely objection to acceleration.

If at a hearing for injunctive relief the parties agree to accelerate a trial on the merits of the prayer for a permanent injunction, they may do so without the defendants' first filing an answer. Pomirko v. Sayad, 693 S.W.2d 323, 324-25 (Mo.App.1985); Big Valley, Inc. v. First National Bank, 578 S.W.2d 616, 618 (Mo.App.1979). Cf. Nelson v. Brentwood Condominium Ass'n., 742 S.W.2d 233, 236 (Mo.App.1987). Evidence must exist, however, of at least implicit agreement between the parties and of an order of the trial court. Nelson, 742 S.W.2d at 236; Pomirko, 693 S.W.2d at 324-25.

Here, the record unambiguously shows that the parties agreed to and that the trial court ordered an acceleration at the hearing on January 20, 1989. Pertinent parts of the transcript read as follows:

MS. WHITE: Well I initially would like to clarify for the record that this is a hearing on my motion for preliminary injunction. I have not made a request to accelerate the trial on the merits with this hearing, and it's my assumption that the...

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