Wise v. Sands, 15173

• Decision Date: 27 October 1987
• Docket Number: No. 15173,15173
• Citation: 739 S.W.2d 731
• Parties: David G. WISE, Plaintiff-Appellant, v. Mary Lee SANDS, d/b/a Town and Country Real Estate, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 731

739 S.W.2d 731

David G. WISE, Plaintiff-Appellant, v. Mary Lee SANDS, d/b/a Town and Country Real Estate Defendant-Respondent.

No. 15173.

Missouri Court of Appeals,

Southern District,

Division One.

Oct. 27, 1987.

Motion for Rehearing Denied Nov. 19, 1987.

Sidney T. Pearson, Pearson & Carter, St. James, for plaintiff-appellant.

John Z. Williams, Williams, Smallwood & Crump, Rolla, for defendant-respondent.

GREENE, Presiding Judge.

David G. Wise sued Mary Lee Sands, d/b/a Town and Country Real Estate, alleging that he had been damaged in the sum of $9,053.51 because of the negligence of Sands, when acting as a real estate agent for Wise. Wise claimed that Sands negligently failed to obtain, as she had agreed to do, a deed of trust to secure a $10,000 promissory note given by Donald and Carol Whitworth to Wise as a partial payment on the $50,000 purchase price of Phelps County real estate owned by Wise and sold to the Whitworths. The petition alleged that after the Whitworths had paid approximately $2,000 on the $10,000 note, they made no further payments; that when Wise attempted to foreclose on the property, he found he had no deed of trust, and that when he attempted to recover the balance due on the note through a lawsuit against the Whitworths, he found they had taken bankruptcy.

In her answer to the petition, Sands denied that she had agreed, as a part of her agreement with Wise to attempt to obtain a buyer for the property, to obtain a deed of trust from the Whitworths securing their $10,000 note. (The petition also named Donald C. Sands, husband of Mary, as a codefendant, but Wise later dismissed the complaint against Donald.) Her answer further stated that "Plaintiff's petition fails to state a claim for which relief can be granted in that Plaintiff's petition does not specify or state how Plaintiff suffered damages, if any, by reason of the note referred to in Plaintiff's petition not being secured by a second Deed of Trust on the real property described in Plaintiff's petition."

Sands followed her answer with a motion for summary judgment, the relevant allegations of which are as follows: Wise sold the real estate to the Whitworths for $50,000, $40,000 of which was to be paid in cash and $10,000 of which was to be represented by a promissory note executed by the Whitworths, and payable to Wise. The $40,000 cash payment by the Whitworths was obtained by them through a loan from Central Federal Savings and Loan Association (the association), which was evidenced by a promissory note in that amount and a first deed of trust on the property sold by Wise to the Whitworths. The Whitworths defaulted on their note made payable to the association. The association then asserted their rights given them in the first deed of trust and sold the property at a foreclosure sale. At the sale, the association was the sole bidder and bought the property for the amount due on its note plus the costs of the sale.

Sands' motion also alleged that since there was no surplus as a result of the sale, even if Wise had had a second deed of trust on the property, which he did not, he would have received nothing from the sale of the property and, therefore, could not have been damaged by Sands' alleged failure to obtain the second deed of trust. The motion further asserted that since Wise had suffered no damages, there was no genuine issue as to any material fact on the damage question, so that, even if the averments of Wise's petition were true, Sands was entitled to a judgment as a matter of law. The motion was accompanied by an affidavit from John D. Wiggins, trustee named in the deed of trust between the Whitworths and the association, attesting to all evidentiary allegations of the motion for summary judgment pertaining to the foreclosure sale, and confirming there were no surplus proceeds after paying off the note held by the association and the costs of the sale.

Wise did not contest any of the allegations of the motion for summary judgment. In its order sustaining the motion for summary judgment, the trial court stated as follows:

The facts necessary to the determination of this motion appear to be the following:

1. Plaintiff's petition claims he was damaged by reason of the failure of Defendant Mary Lee Sands acting as Plaintiff's real estate agent to obtain a second deed of trust securing payment of a promissory note made by purchasers of real estate sold by Plaintiff in part payment of the purchase price for such real estate sold by Plaintiff.

2. Plaintiff sold the real estate referred to in his petition to Donald L. and Carol Whitworth, husband and wife, for the total purchase price of $50,000.00, of which purchase price $40,000.00 was paid in cash and $10,000.00 was represented by a promissory note made by the purchasers payable to Plaintiff. The $40,000.00 cash payment made by the purchasers was procured by means of a loan from Central Savings & Loan Association which loan was evidenced by a promissory note and which note was secured by a first deed of trust on the real property sold by Plaintiff to the purchasers. Plaintiff claims that the $10,000.00 promissory note he received in part payment of the purchase price was to have been secured by a second deed of trust on the real property sold.

3. The promissory note made by the purchasers of the property and payable to Central Federal Savings & Loan Association which was secured by a first deed of trust on the real property sold by Plaintiff to the Whitworths...