Court of Appeals of Missouri, Western District, First Division
Appeal from the Circuit Court of Cass County, Missouri. The Honorable Meryl L. Lange, Judge.
Greer S. Lang and Justin Nichols, Kansas City, MO, Attorneys for Respondent.
John M. Duggan and Deron A. Anliker, Overland Park, KS, Attorneys for Appellant.
Mark D. Pfeiffer, Judge. Cynthia L. Martin, Presiding Judge, and Thomas H. Newton, Judge, concur.
Mark D. Pfeiffer, Judge.
Community Bank of Raymore (" Bank" ) brought an action against Patterson Oil Co., Inc. (" Patterson Oil" ) for unlawful detainer. The Circuit Court of Cass County, Missouri, Associate Circuit Division (" trial court" ), granted summary judgment to Bank on the issue of right to possession, and a jury returned a verdict for damages. The trial court entered judgment on the jury verdict in favor of Bank. Patterson Oil appeals. We affirm.
Facts and Procedural History
Patterson Raymore, LLC executed a Deed of Trust dated June 15, 2009, on certain real property located at 715 Foxwood Drive, Raymore, Missouri (" Property" ),
to Bank, which deed was recorded with the Cass County Recorder of Deeds at Book 3262, Page 407 (" P-R Deed of Trust" ).
SM Disposition, Inc. was appointed to serve as the successor trustee (" Successor Trustee" ) under the P-R Deed of Trust. On November 30, 2012, the Successor Trustee sent notice of foreclosure of the P-R Deed of Trust and of the trustee's sale scheduled to take place on January 2, 2013, to Patterson Oil, Patterson Raymore, LLC, PHC Development, LLC, Gary A. Hawkins, Valerie J. Hawkins, Chris L. Patterson, and Janice A. Patterson. Although all of these individuals and entities each received a copy of the foreclosure notice on or before December 6, 2012, none of them sought to enjoin the foreclosure sale in advance of the sale.
On January 2, 2013, the Successor Trustee foreclosed on the P-R Deed of Trust and held a non-judicial foreclosure sale of the Property. Bank was the highest bidder at the foreclosure sale. Following the foreclosure sale, the Successor Trustee issued a Trustee's Deed in favor of Bank conveying title to the Property to Bank on January 2, 2013, which deed was recorded with the Cass County Recorder of Deeds on January 3, 2013, at Book 3645, Page 0086 (" Trustee's Deed" ). When Bank purchased the Property at the foreclosure sale, Patterson Oil was occupying the Property. On January 4, 2013, Bank sent Patterson Oil notice of the foreclosure sale and its ownership of the Property and demanded that Patterson Oil vacate the Property no later than January 18, 2013. A copy of the notice to vacate was also personally served upon Patterson Oil's President, Chris L. Patterson, on January 9, 2013. Despite this demand, Patterson Oil refused to relinquish possession of the Property.
Bank filed its Verified Petition for Unlawful Detainer on January 22, 2013. Bank moved for partial summary judgment on the issue of its right to possession of the Property and Patterson Oil opposed Bank's motion. On July 24, 2013, the trial court entered its Findings of Fact and Conclusions of Law, granting Bank's partial summary judgment motion.
Thereafter, the issue of Bank's damages was tried to a jury on October 18, 2013. The jury returned a verdict in Bank's favor for the loss of rents and profits from January 18, 2013, to the date of its verdict in the amount of $27,000, finding that the monthly value of the rents and profits from the date of its verdict was $3000 per month. The trial court entered its final judgment in favor of Bank on October 22, 2013. The judgment awarded Bank " restitution of the Property" and damages in the " sum of $54,000, double the sum assessed by the jury, and also at the rate of $6000, double the sum found per month, for rents and profits,"  from October 18, 2013, until restitution of the Property to Bank, together with post-judgment interest and Bank's costs.
Patterson Oil filed a motion for judgment notwithstanding the verdict (" JNOV" ) and/or for a new trial, which the trial court denied on January 27, 2014.
Patterson Oil timely appeals, raising five points of error. Points I and V assert error in the trial court's grant of summary judgment; Point II challenges the trial court's denial of Patterson Oil's motion for JNOV/new trial; and Points III and IV assert instructional error.
Points I and V -- Summary Judgment
Standard of Review
When we consider an appeal from the grant of summary judgment, we view the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). " The burden on a summary judgment movant is to show a right to judgment flowing from facts about which there is no genuine dispute. Summary judgment tests simply for the existence, not the extent, of these genuine disputes." Id. at 378. Because the propriety of summary judgment is purely an issue of law, our review is de novo. Id. at 376.
In Point I, Patterson Oil argues that the trial court erred in granting summary judgment (for possession) in Bank's favor because Bank did not prove the authenticity of the P-R Deed of Trust under which the foreclosure proceedings occurred.
Patterson Oil essentially asserts that Successor Trustee wrongfully foreclosed on the Property because the P-R Deed of Trust, under which the foreclosure occurred, was forged. However, a defendant cannot assert wrongful foreclosure as a defense to an unlawful detainer action. Cent. Bank of Kansas City v. Mika, 36 S.W.3d 772, 775 (Mo. App. W.D. 2001); see also Mortg. Assocs., Inc. v. Wiley, 650 S.W.2d 13, 15 (Mo. App. E.D. 1983) (holding that defendant in an unlawful detainer action cannot attack the validity of the ...