*1 Spires, T. Richard SPIRES and Frances E. Appellants, Jr., EDGAR, al.,
William R. et Respondents.
No. 57294.
Supreme Missouri, Court En Banc.
Sept. 9, 1974. Tyree & Holderle
Derrick C. Der- rick, Louis, Mcllrath, St. Robert A. Flat River, appellants. Beckham, Steelville,
G. C. respond- Edgar, ent William R. Jr.
PER CURIAM.
This suit
is for
alleged
wrongful foreclosure of a deed of trust.
Plaintiffs were the makers of the note of
$71,000 and the grantors in the deed of
trust. The named defendants are William
Edgar, Jr.,
trustee,
R.
and David
J.
Lawless,
Eleanor L.
the holders
This appeal pertains
Edgar alone;
note.
his
motion to dismiss
third amended
was sustained
September
1971, for failure to state a
cause
him.
In the same
order the court ruled: “The within order
appeal.”
September
This
was taken on
change
prior to the constitutional
1, 1972,
January
and the suit is
a total
$105,000
monetary
damages.
From a
*2
373
of,
undisposed
question
jurisdiction.
them remained
standpoint we
Laws
ap-
then
110,
as
can
1969,
Ex.Sess.,
1.
arises
to whether
p.
3rd
Sec.
Our
peal
they
or if
await the outcome
nothing
de-
must
here
as
record
shows
they
appealing.
case before
Lawless,
the remainder of the
except
were
fendants
supra,
As stated
the trial court
still carried as
named as
and are
parties
dismissing
plaintiffs’
claim
its order
parties
transcript
briefs.
ap-
against
Edgar
as
This
heard in
wаs first
Division
peal pursuant
second sentence
Two and transferred
division to the
82.06,
earlier
rule
rule
(formerly
81.06
en
reason for
principal
Court
banc. The
3.29).
amended
forerunner
rule
the transfer was to determine whether the
adopted
3.29,
in 1945
rule 81.06 was rule
order
from was
effec-
this court. Rule
was amended
3.29
81.06,
judgment under rule
V.A.M.R.
1957, and,
May 15,
except
tive
for renum-
because,
question arose
supra,
as
noted
unchanged
bering,
since then.
has remained
disposition
record does
all
show
parties,
issues
all
to wit:
as
issues
Terte,
Thompson
v.
State ex rel.
parties
dis-
defendants Lawless were not
229,
(Banc 1947),
was
207 S.W.2d
posed
of as of the time the
tak-
original
decided under
3.29.
plaintiffs’
en from the
dismissing
order
court
the dismissal order
there held that
against Edgar
claim
for failure to
joint
per-
in a
to two defendants
action
cause of
against
action
him.
injuries
three
against
sonal
defendants
not an
it was
appealable order
the time
many
It has been ruled
times
said,
489:
entered. The
cit.
court
loe.
since an
judg
must be from final
is on one
action
the suit
cause of
“Where
(with
ment
specified exceptions),
against
defendants there can be
sevеral
must have disposed
of all issues and
of the case
a dismissal
parties. Downey
all
United
v.
Weather
type
only
some defendants
because in such
Inc.,
proofing,
(Mo.
single
judg-
of action
be a
there must
1951);
Special
Thomas v. Orrick
School
parties
ap-
before an
disposing of
Dist.,
;
(Mo.App.1952)
S.W.2d 523
peal may
requirement
This is a
be taken.
Lueth,
Bays v.
(Mo.
of both the
and new Codes. S. S.
old
1959);
Associates,
Wicker
Knox Glass
v.
Shankman,
Kresge
Mo.App., 194
Co.
S.
362 Mo.
566 (1951);
Rouse,
716;
Rawleigh
W.2d
T.W.
Co. v.
Bottling
Beuttenmuller
Vess
Co.
of St.
does
Mo.App., 204
438. This case
Louis,
(Mo. 1965).
had A.M.S.’ entirely independent claim un- proceeding Before with cases related other claims stated Dotson, it followed is to be that the noted case, entered shall then the judgment respect rationale court with be deemed propriety of the dismissal coun- of Starr’s appeal meaning of within the Section recognizes terclaim if dismissal RSMo, V.A.M.S., unless the Court 512.020 erroneous, the trial of remainder interlocutory judg- it orders entered as an the case without the counterclaim until abeyance be held in other ment might prejudice well a determination of claims, third-party claims counterclaims or concept Apparently the other issues. this are determined.” part adopting of the reason for perfectly The court then held: is “It rule because the was a of Dotson clear counterclaim of Starr member of this at amended court the time against the plaintiff ‘arising was one out adopted rule 3.29 was de- and Dotson was transactions, of the same occurrences or years approximately cided two later. subject matter as the other In instant case it seem obvious * * joined in the *.’ All case dismissing Edgar if the is order claims arose out of one automobile colli- plаintiffs’ a trial of erroneous claim with- negli- ensuing sion assertions of presence prej- out the well gence, pro and If in- con. the trial court udice a determination of the issue of tended the order of dismissal to be a final alleged wrongful Further- foreclosure. more, plaintiffs will never be afforded ‘specifically designated’ should have so it. right try against their case the de- court, This discretion rests in the trial against right they fendants whom Pizzo, Banc, in this court. Pizzo v. proceed under the It is law in one trial. 380. Not hav- that the observed Dotson believed so, done this premature.” is strоngly interpretation its
Pausing
moment,
here for a
it is to be
as amended
rule 81.06) that it invited
(now
noted that the
dealing
court in Dotson was
prior
trial court to amend its
order of
with a dismissal of a claim which
out
arose
dismissal so as to
be final
designate it to
of the same transaction (collision) alleged
amended rule
under
plaintiff’s
petition.
case,
In
instant
3.29 in
an appeal
order that
thereaf-
could
the several defend-
ter be taken.
must
fendants,
premature
Greene,
rel.
ex
Schweitzer
State
prohi-
be dismissed.
1969), was
(Mo.banc
prohib-
bition
filed
Schweitzer
action
ap
dismissed
Beezley the court
any fur-
taking
judge
it the circuit
“There
cit. 536-537:
peal but said
loc.
underlying
in the
him
ther
fore,
shall dismiss
‘[w]e
Ma-
Betty
Langley
Robert
vs.
case of
re
appealed from
since the
jorie
Patterson and Dr. Schweitzer.
may
trial court
interlocutory, the
mained
previously
sustained
circuit court
and, if it so
discretion
exercise its
now
Lang-
motion to dismiss
Schweitzer’s
amend
by way of
chooses,
an order
enter
leys’
him
for failure to
heretofore
providing that
its order
Langleys
filed
claim. Thereafter the
* * *
thereby specifically
entered
filed
petition tо
which Schweitzer
pur
judgment for
designated as “a final
overruled.
a motion to dismiss which was
*4
meaning of Sec
poses
within the
of
action,
prohibition
con-
In the
Schweitzer
RSMo,
Rule
See
tion 512.020
V.A.M.S.”
plaintiffs’
tended
dismissal of
the
so,
may then
does
an appeal
If it
[82.06].
appealable
was a final
order when entered
plaintiffs
decide)
so
within
(if
taken
Respond-
judicata.
and was therefore res
time,
dis
appropriate
the
for
order of
the
ent
the first dismissal order was
contended
first
the
missal will have then become for
appealable
not a
the
final
because
judgment
appealable
judgment.’
time an
and final
disposed
co-
case had not been
of as to
Inc.,
Mo., 325
Dotson E.
v. W.
defendant Patterson.
737, 739(4).”
holding
In
that the first order of dismis-
order,
Beezley
same situation existed in
The
appealable
final
the
sal was not a
in
exists in
instant case
judgment
court said
“
defendant,
de-
petition as to
but not all
one
judgment and it must or-
‘must be a final
fendants,
by the circuit
was dismissed
dinarily dispose
parties
all
of
issues
Beezley
court.
It differs
in that
case,
in
has or-
trial court
ap-
very
finality
purposes
order
for
separate
any
or is-
derеd a
trial of
peal,
the court
sue,
the absence of which caused
specifically designated
par-
or has
by
to dismiss
made
Beezley
judgment for
judgment
ticular
as a final
in
Ellis,
the trial court
the instant case.
purposes
appeal.’
Dudeck
Mo.Sup.,
204. The court
Shop Corp. of Ameri-
Woods v. Juvenile
designate
the or-
the case
bar did not
ca,
(Mo.1962), was a suit
trial 11, 1961, court amended its October 81.06 are different from one another. 15, 1961, dismissal order on November part That sep- of rule began, “When designated the dismissal as a final judg- arate such claim had before appeal. ment for . may . . the court
This court’s footnote with entered which reference to shall be . amendment states at cit. . . . . “Ap- loe. 695: . parently following . . . .” suggеstion (Emphasis supplied.) of the procedure correct “(S)uch” in such situation must refer to that which made Dotson, S.W.2d, pears supra, apparently loe. cit. sentence language application since restricted order is identical language which Terte sets of Dotson.” The court forth —several dif- 11, 1961, ferent order of different October *5 interlocutory was appeala- and not a final one suit. separate appeal ble order and that a The second of rule is sentence 81.06 such interlocutory order would have much than broadеr rule and re- 3.29 is not premature, citing Dotson. The court stricted to different claims differ- then to the subsequent went on hold that parties. ent The second sentence of rule designation of the dismissal final provides, separate 81.06 “When a is trial purposes judgment of for converted had before the court of ... claims interlocutory appealable the order into arising transactions, of out the same occur- judgment, again citing final Dotson. On subject rences or matter as the other claims appeal, the merits of the the court reversed joined in thе case the
the reinstatement circuit court and ordered entered judg- shall not be deemed a final of holding the the cross- crossclaim purposes of within the claim stated a relief 512.020, meaning Section of Revised Stat- granted. could be Missouri, utes of so specifically designated by the court in the judgment en- Corp. In Title of St. Louis v. Insurance tered.” States, (Mo.App. United 1968), effect, held: the hear- the court “In It second was this sentence that was the Respondent’s motion for a sum- subject Dotson v. E. W. mary judgment was trial before said, Inc., supra. And as to this court jury the court without a and court “All the arose out of one automobile designated has as a final one neg- collision assertions ensuing and is referred to under this rule.” rule ligence, trial court in- pro and con. If 81.06). (now 82.06 to be a tended dismissal it purposes Heritage Life Ins. v. Great Johnson designated’ it.” 'specifically should have Co., (Mo.App.1973), (Emphasis supplied.) order dis- court that the trial court’s specifically autho- Thereafter the court to state a missing failure count its order rized the trial court to amend order a “final designating claim and to be final for by designating dismissal apрeal” purposes of judgment for under order under rule 82.06. was an payments petition; that various were made 81.06). (now And this authoriza- accepted and though no late were credited there was but tion was made even ordinarily plaintiffs; that nevertheless defendants understood. “trial” as “trial” to foreclose and simply which Lawless ordered the trustee It a motion dismiss sale, property nothing That that he advertised more. sustained except published being notice October what in the instant case we have sold, already desig- 16, 1969; property has court here purchased it for the to be final for defendants Lawless nated the dismissal order appeal. $70,000, although sum of reasonable $100,000; that defendants Law- value was supra, As indicated the cases cited complied with plaintiffs had less knew that interpretation placed upon amended rule 3.- deed the covenants and conditions (now by Dotson, reference 81.06) with interest, principal and regarding of trust designate trial court’s disregard for the with reckless acted dismissal order which order does not dis- rights plaintiffs; at the time ad- pose all and issues as final liens encum- vertisement and sale the been followed $70,000; approximately were brances Feinstein the Missouri courts. See also occupied fiduciary rela- Inc., Sons, Livingston v. Edward & 457 S. tionship plaintiffs and should as- (Mo.1970), W.2d 789 where plaintiffs there was certained from whether merely in its sets out statement of the case why not be any reason foreclosure should dismissing the order the claim knew, reasonable commenced and third-party failure defendant for known, inquiry diligence and would judg- “final complied following: That goes ment” and then on to decide principal requirements as with the peal. Brake also v. Nu Process See Sisco interest; set out Ex- Engineers, Inc., (Mo.1971). “B”; pay- monthly hibit and that other *6 except one of been made Terte, ments had Thompson State ex rel. v. further, 1, 1968; that 229, Mo. (Banc 1947), hav- October S.W.2d 487 any make such Edgar and refused to been decided under an failed earlier rule have investigation, that he could thus no and longer should be followed. of the deed all conditions known that The trial dismissing plain- court’s order with; complied that defend- been trust had tiffs-appellants Spires’ re- payment no knew that ants Lawless spondent Edgar, having been com- publication delinquent when purpose pursuant to further, in the alleged menced. Plaintiffs 81.06, is an order. payment alternative, there was a that if had con- delinquent, Lawless defendants petition alleged: The third amended aforesaid, and by their letter sented thereto ownership of question by estate in real payments, accepting late by their conduct plaintiffs; by execution them of a note plaintiffs into they had “lulled and that $71,000 payable to defendants Lawless security and belief a false sense in monthly installments of $508.68 acceptable”; that defend- conduсt was such month, 1, beginning May of each or should known Edgar knew ant 1968, 6%; with interest at the execution failed conduct, defendants and that all such of a payment deed of trust to secure to their intention plaintiffs notice of give note, designating defendant any de- opportunity to make or an foreclose trustee; plaintiffs all of the made prayed for Plaintiffs payments. linquent 1, payments except the due on October pu- $70,000 as $35,000 and actual 1968, “skipped” which was at the admitted damages. Counsel nitive note, per holders of letter the ad- knew of plaintiffs argument “B” marked Exhibit attached to and sold, presumably by in- investigation, property was firmative before the vertisement plaintiffs, and thus to find out attorney present quiry sale and had an they were plaintiffs claimed that given the whether protest, but had who made some reasons for delinquent the factual warning in advance trustee notice or claim; include not this would seem to their they the sale invalid considered 1968, payments but only status of the the actual wrongful. The letter of November “lulling” of waiver or on, permit strongly relied refused alleged the trustee did security. is not plaintiffs paymеnt” and It skip “another only plaintiffs, but anything make to mislead “thought you would stated that we relationship, he fiduciary failed in a the rest of them on time.” argu- suggested in oral to act. Counsel argu- in oral A bare mention was made trus- been the ment that it even have branch of this the fact that one duty controverted issues tee’s to decide Court of case had in the Missouri allegations parties. The fact between the Neither Appeals, Springfield District. knew or should the trustee any party materi- has claimed that this things by exercise known certain find present appeal. аl effect on the We inquiry cer- diligence and are reasonable files, judicial we take no- our of which ac- tainly allegations of equivalent tice, to transfer that we denied a motion nothing alleged knowledge. tual There is filed Lawless fol- here the defendants actually that the trustee here which shows lowing opinion of that which Court pre- legally anything which should knew of pears in The motion for 65. S.W.2d he was directed vent the foreclosure when Lawless summary judgment of defendants payments He did not receive to act. had been sustained and on the note. re- Appeals. The Court Court of trust acts A trustee in a deed of trial, versed and remanded case capacity he must act fiduciary in a found principally on the fact issue which fairness, im complete integrity, any payment exist as to whether or and the partiality both the debtor toward delinquent principal interest Smith, 322 Edwards v. creditor. The Court when foreclosure was started. Axtell, (Mo.1959); West es- waiver or question did not reach duties (1929). The party toppel. was not Defendant Edgar terms powers of a are fixed trustee consider- proceedings. There was thosе contract, of trust. namely, the deed delinquency supposed able discussion of a Boyd, Adams 332 Mo. insurance, plaintiffs regarding *7 parts ' copy pertinent (1933). A of the petition have avoid- allegations of the their plain to of this trust was attached deed of Springfield notice ed. assume that the We sent petition tiffs’ as an exhibit. We 1972; January was filed after included exhibits, were not which otherwise, to not seem that Court would of trust transcript. The deed original facts are jurisdiction. have had Certain default provides if the debtors that interrogatories there, gathered shown from trustee, legal holder request of the at the affidavits, have and we do not which proper note, proceed sell the may to of the not should consider. provided, giving ty in the manner pro the amend- question The here is whether no It contains days’ published notice. debtors, the trus- ed a claim states to the additional notice vision for may granted. We by tee which relief be the trustee. investigation on any possible liabili- any with are not concerned that the ab concluded have plain- We ty note. The of the holders of the to known circumstances down, sence of unusual theory, tiffs’ as and boiled a re receiving trustee, may, upon he duty, a that: the trustee owed creditor, quest for foreclosure foreclose, an af- to make when directed to up had been creditor to hold foreclosure making upon that advice without proceed violated, bought that the creditor had and without investigation any affirmative that, sale and within 30 property at the any special notice debtor. giving delivery of trustee’s minutes after any liabilities considering here are not We deed, prop- bought himself the trustee of the note holder or duties of erty The and took a deed. circumstances notes. been probably had the deal indicated rely largely Ed- Plaintiffs cite and cir- suspicious a further prearranged, and Smith, (Mo. wards v. mother that a father and was cumstance That was 1959). a suit for by their land owned foreclosing on were alleged wrongful an foreclosure. The Court husband. daughter her properly trustee was held have been no record disclosed merely noted that missed. The action held maintainable was daugh- any rights respecting inquiry the holder of the note because lay down It did or her ter husband. specific a agreement he had made under by a trustee inquiry requiring permitting irregular pay- debtor and late ordinary circumstances. ments, coupled with an not to (Mo. foreclose giving without him Bingham, notice. Hrovat v. no There was evidence that the trustee was App.1960), That is also cited. agreement; knew of that foreclo- following he asked the ejectment attorney creditor to show the note his It involve trustee. sure did not assured was that it default. It the statement only applicable here for that a held find jury could it is suffi- ordinary circumstances under creditor had agreement, violated his re- but the usual notice gives cient if a trustee the trustee trust, personal knew of fact by with no quired deed of debtor, would indicate be that he should not could foreclose. notice to there regard do not We fair- further statement where unusual common circumstances notice, that the trustee if the might require could reasonable ness such a investigation fraud. amount to a learned facts could failure notice sale, insufficiency which should prevented The Court also necessary voidability stating merеly decision or as notice goes necessary part of render it a trustee’s duties. and does not sale the foreclosure Court noted that suit for the trustee had as- material in a may void. This sured that the set was in with a damages, note default and suit as contrasted care, in the exercise of ordinary he should aside the sale. not or would agree- have known first, cases, Looking we note to other
ments made
or of
the creditor
the re-
Hendrichs,
(Mo.
Smith v. did not constitute 314 909 (Mo. S.W.2d cited, setting aside 1958), legal ground also was an action set aside waiver a foreclosure; had acted foreclosure and that the trustee a deed executed immedi- ately subsequent that impartially, thereto. The evidence that there evidence waiver, fraud, and that unfairness, showed if not he knew of claim of part duty further to ascertain the creditor and the trustee. There he was under no appeared it that made the fact default.
380 Blase, Euge In v. 339 (Mo. S.W.2d 807 (Banc 229, 487, [1, Mo. 2]
1960), it is indicated that 1948) trustee simply : this case present not does circumstances, knowledge of unusual it contemplated by Rule, has situation this duty is not his investigate being applicable the default or only to a in suit which are give personal notice debtor before or more two different Connett, against In Homan foreclosure. parties. different The subsequent (1941), it was amendments of what then Rule 3.29 generally that a trustee’s notice have not made change which would publication is sufficient and that no addi- applicable make the successors Rule 3.29 given to the debtor. single tional notice need be against multiple claim defend- ants. where a trustee We seen no case been held liable in for a fail- Of the seven cases cited in majority investigation opinion support
ure to make an of the default in proрosition only case in premature, before foreclosure. The cited is five involve judgment against which the court entered more than one claim. The two which do merely any purpose (and trustee for not are Greene, State ex rel. Schweitzer v. setting in deeds where the trus- (Mo.banc aside two and Bee 1969) Haley, zley tee the then owner) Co., Smith v. National Life & Accident Ins. supra, where trustee was held to have (Mo.App.1971). S.W.2d 535 guilty of misconduct. Greene case single against involved a defendants, two but what the court said We have concluded that third there (l.c. 438 231) S.W.2d at to the effect did state a claim court could have the trustee which relief the order of dismissal as a final granted. Consequently, necessary was not affirmed. to the decision and therefore was dictum. Beezley single case involved a SEILER, MORGAN, HOLMAN, against multiple defendants FINCH, JJ., BARDGETT and concur. of dismissal as to one. The court of peals held that the order of dismissal from was not a fi- HENLEY, J., in dissents nal judgment and dismissed the opinion senting filed. premature. so, doing In court said that remand the trial court DONNELLY, J.,C. dissents and concurs could designate its discretion the judg- dissenting opinion of HEN- ment as final appeal, citing LEY, J. the Greene case and Woods v. Juvenile Corp., Shoe (Mo. 695 [1] HENLEY, 1962) Judge (dissenting). Dotson v. 325 S.W. I respectfully dissent. 2d court could under [4] (Mo.1959). what In saying then designate Rule 82.06 my opinion (and prede- of dis- Rule 81.06 its cessors, missal 3.29) was Rules 82.06 and never was, submit, appeals respectfully court of I designed apply
intended was not support error. cited involving single a case claim or cause of cases are statement than one defendant. more holding. was said in the What Greene presented That is what are we was, indicated, proposition case on this multiрle case—one claim defend- *9 dictum. Both the and the Dotson paraphrase said Woods ants. To what the court Terte, than one claim cases involved more Thompson ex State rel. against different defend- cause of action
ants, (now which Rule 82.06 the situation to separate claims and trials of
81.06) on in- they did not finality applicable;
their multiple defend- claim
volve one
ants, we the situation have here. verbose, I re- expense being
theAt claim, a sin-
peat: involves case claim; two; it involves
gle, indivisible not one of a claim defendants, single same two both; trial of into been divided single which applica- 81.06 is to be made
two. If Rule hope
ble this situation I would done, by interpretation and
would Terte, supra, a overruling
the resultant
decision least 15 others
relied, amendment of the Rule. the issues
Because as to disposed of, prema-
ture I and would it. dismiss
Richard SWINFORD, Appellant, A. BLILEY
Ralph and the Conception a corporation, Respondents. Abbey,
No. 57807.
Supreme Missouri, Court of
Division No. 1.
Sept. 9, 1974.