Court of Appeals of Missouri, Southern District, Second Division
LINNIE J. KYLE ESTATE, and JOAN KYLE-HENNINGSEN  and WALTER C. HENNINGSEN, Plaintiffs-Appellants,
21ST MORTGAGE CORPORATION, SMF REGISTERED SERVICES, INC., and MICHELE M. O'MALLEY, Defendants-Respondents.
FROM THE CIRCUIT COURT OF OZARK COUNTY Honorable Lynette
Veenstra, Associate Circuit Judge
WILLIAM W. FRANCIS, JR., J. - OPINION AUTHOR
Kyle-Henningsen ("Joan") and Walter C. Henningsen
"the Henningsens"), as "Personal
Representatives (Beneficiaries)" of the Estate of Linnie J. Kyle, appeal
the trial court's judgment sustaining the motion to
dismiss filed by 21st Mortgage Corporation, SMF
egistered Services, Inc., and Michele M. O'Malley
(collectively the "Respondents"), dismissing the
Henningsens' pending lawsuit because it was identical to
claims presented in a prior lawsuit in which judgment was
rendered thereby barring the lawsuit per res
judicata. Because of Rule 84.04violations in the Henningsens' brief,
we dismiss their appeal.
and Procedural History
27, 1998, Linnie J. Kyle ("Kyle") executed a Home
Equity Line of Credit Agreement, a promissory note (the
"note"), and a deed of trust on 2.35 acres
("the property") she owned in Ozark County in favor
of Lancorp Mortgage Services. The Henningsens were present at the
signing and Walter had assisted Kyle with some of the
paperwork necessary to secure the loan. The Henningsens had
extensive real estate experience with Joan having 15 years as
a real estate broker, and Walter having 14 years'
November 15, 1999, Kyle executed a warranty deed to the
property in favor of Heritage Land and Development, "in
c/o Peggy Joan Kyle Henningsen." On May 7, 2006,
Heritage Land and Development executed a quitclaim deed on
the property to Heritage L&D, LLC, with "Peggy Joan
Kyle Henningsen" signing the quitclaim deed on behalf of
Heritage Land and Development. The note and deed of trust had
been re-assigned a number of times with 21st
Mortgage determined to be the last lienholder.
December 2001, Kyle passed away. The Henningsens made
payments under the note until approximately 2013, after which
time the note went into default. In 2014, 21st Mortgage began
foreclosure proceedings on the property using the trustee
services of SMF Registered Services, Inc., and the legal
services of attorney Michele M. O'Malley.
6, 2014, the Henningsens filed a pro se "Complaint for
Injunctive and Other Equitable Relief Petition and
Application for Temporary Restraining Order" against
Respondents in the Circuit Court of Ozark County in Case No.
14OZ-CC00075 (the "First Action") challenging the
foreclosure. The Henningsens asserted the deed of trust had
an errant legal description for the property, and 21st
Mortgage was not the valid holder of the note and deed of
trust. The parties filed cross motions for summary judgment.
11, 2015, the trial court granted 21st
Mortgage's motion for summary judgment and denied the
Henningsens' motion for summary judgment, stating there
was only one issue before the court and that was whether 21st
Mortgage was the valid holder in due course of the promissory
note and deed of trust. The court found that 21st
Mortgage was the valid holder and was "entitled to
foreclose on the collateral which is agreed between the
parties . . . to be a 2.35 acre tract of land[.]"
Henningsens filed an appeal of the June 11, 2015 judgment,
but on November 23, 2015, this Court dismissed the appeal for
failure "to take further steps to secure appellate
review" and that "good cause has not been shown why
this appeal should not be dismissed."
October 20, 2015, the Henningsens filed a second action in
the United States District Court for the Western District of
Missouri, in Case No. CV-3455-SRB (the "Federal
Action"). In the Federal Action, the Henningsens
asserted that "[t]his case arises out of an attempt by
21st Mortgage Corporation, (21st) to foreclose on a home
equity line of credit." The Henningsens challenged the
foreclosure claiming there had been no accounting presented
and that the legal description of the property was incorrect
in the deed of trust. They requested the federal court to
overturn the June 11, 2015 judgment in the First Action.
Respondents filed a "Motion to Dismiss Plaintiffs'
Complaint for Lack of Subject Matter Jurisdiction, Lack of
Standing, and as Precluded, " which was granted. The
federal court then dismissed the Federal Action with
December 16, 2015, 21st Mortgage foreclosed and sold the
property. The Henningsens attended the sale and filed a
lis pendens in Case No. 14OZ-CC00075, the case in
which the July 11, 2015 judgment had already been entered.
2, 2016, the Henningsens filed a third action against
Respondents in the Circuit Court of Ozark County in Case. No.
16OZ-CC00063, entitled "Complaint and Petition Unlawful
Foreclosure, Unlawful Trustee Sale, Fraud, Lack of
Jurisdiction Motion to Stay Possession, Motion to Set Aside
Sale, Motion to Overturn Null and Void Judgment and Demand
for Damages" (the "Current Action").
Henningsens asserted four counts against Respondents: Count
One - "Wrong Legal Description - Defective and Void
Note, " Count Two - "No Chain of Title - Standing
Not Established, " Count III - "Failure to Present
the Note, " and Count IV - "Failure to Present the
Records of Accounting." The Henningsens sought an
"order overturning summary judgment, with prejudice, in
case No. 14OZ-CC00075 [the First Action] and for order to set
aside the unlawful sale resulting from that summary
filed a "Motion to Dismiss Plaintiffs' Petition
Pursuant to Rule 55.27." Respondents argued that the
Henningsens' claims in the Current Action were barred
under collateral estoppel and res judicata and that
the Henningsens lacked standing because they were not the
title owners of the property.
7, 2016, the trial court, in the Current Action, granted
Respondents' motion to dismiss finding that the claims
presented in the First Action were identical to the claims
presented in the Current Action, a valid final judgment on
these issues was entered on June 11, 2015, and "the
claims now presented in the present litigation must be
dismissed as res judicata." The trial court
dismissed the Current Action with ...