Court of Appeals of Missouri, Southern District, Second Division
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APPEAL FROM THE CIRCUIT COURT OF SHANNON COUNTY. Honorable David P. Evans, Circuit Judge.
For Appellant: Randy J. Reichard of Springfield, MO, and Raymond M. Gross of Gainsville, MO.
For Respondents: Daniel T. Moore of Poplar Bluff, MO.
NANCY STEFFEN RAHMEYER, J. - CONCURS. GARY W. LYNCH, J. -- CONCURS.
DON E. BURRELL, J.
This consolidated appeal requires us to interpret the terms of a loan agreement between Plaintiff John Walter Phillips (" Lender" ) and Defendant Missouri TLC, LLC (" Borrower" ). Defendants Doyle and Dennis Frost are members of Borrower. At the time of the loan, Dennis was married to Defendant Sandy Frost, and Doyle was married to Defendant Brenda Frost. The parties' dispute was tried to the court without a jury, and both sides now appeal the resulting judgment.
Lender alleges the trial court erred in finding that: (1) Brenda and Sandy did not personally guarantee the loan; (2) a 5% premium on the sale of collateral was to be applied toward the balance of the loan; and (3) Lender was only entitled to one $5,000 late fee. Borrower, Doyle, and Dennis appeal the portion of the judgment that holds Doyle and Dennis personally liable on the loan.
Finding merit in two of Lender's points, we affirm in part, reverse in part, and remand the matter with instructions.
Standard of Review
We will affirm the judgment in a court-tried case unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Williams Constr., Inc. v. Wehr Constr., L.L.C., 403 S.W.3d 660, 662 (Mo. App. S.D. 2012) (quotation omitted). We leave all credibility determinations to the trial court, " which is free to believe none, part or all of the testimony of any witness." Id. In contrast to that deference, the " [i]nterpretation of a contract is a question of law and is subject to de novo review. When interpreting a contract, the overriding concern of the appellate court is to give effect to the intentions of the parties." Crestwood Shops, L.L.C. v. Hilkene, 197 S.W.3d 641, 648 (Mo. App. W.D. 2006) (internal citation omitted).
Using one attorney to draft the documents, Borrower and Lender entered into a " LOAN AGREEMENT" in December 2010 in which Lender loaned Borrower $5,943,000 in exchange for a promissory ...