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Meyers v. Kendrick

Court of Appeals of Missouri, Southern District, First Division

September 27, 2017

GEORGE MEYERS and JUDITH MEYERS, Plaintiffs-Appellants,
v.
CHARLES KENDRICK and KACIE KENDRICK, and PEOPLE'S COMMUNITY BANK, Defendants-Respondents.

         APPEAL FROM THE CIRCUIT COURT OF CARTER COUNTY Honorable Harvey S. Allen

          OPINION

          GARY W. LYNCH, J.

         George and Judith Meyers ("the Meyerses"), husband and wife, sued Charles and Kacie Kendrick ("the Kendricks"), husband and wife, and People's Community Bank ("Bank") in a three-count petition. Count One sought relief against the Kendricks for statutory and equitable redemption of the Meyerses' foreclosed residence, Count Two sought relief against Bank for statutory and equitable redemption of that residence, and Count Three sought relief against Bank for a violation of the Missouri Merchandising Practices Act (MMPA).[1] The trial court dismissed the redemption counts against both the Kendricks and Bank for failure to state a claim upon which relief could be granted and entered summary judgment in favor of Bank on the MMPA count. On appeal, the Meyerses argue in two points that the trial court erred in granting Bank's motion to dismiss their redemption claims and Bank's motion for summary judgment on the MMPA claim. Finding that the Meyerses' first point is moot and their second is without merit, we affirm the trial court's judgment.

         Factual and Procedural Background

         The Meyerses' petition contained three counts. In allegations common to all counts, the Meyerses alleged that they granted a deed of trust on their residence to a trustee in favor of Bank to secure the payment of a promissory note owed to Bank, that the trustee under the deed of trust held a foreclosure sale and Bank bought the residence at that sale, and that on the same day Bank sold the residence to the Kendricks. Count One of the petition pertained solely to the Kendricks and claimed that the Meyerses had both statutory and equitable rights of redemption superior to the Kendricks' rights as purchasers of the residence from Bank following the foreclosure. Count Two pertained solely to Bank and claimed that the Meyerses had statutory and equitable rights of redemption in the residence. Count Three pertained solely to Bank and alleged a violation of the MMPA. Bank's answer pleaded as an affirmative defense that it was exempt from MMPA requirements.

         The Kendricks and Bank filed separate motions to dismiss. The trial court granted both motions as to Counts One and Two, but denied Bank's motion as to Count Three.

         Bank then moved for summary judgment on Count Three "because the [MMPA] does not apply to [Bank] in that [Bank] is an entity subject to chartering and regulation by the director of the Missouri Division of Finance under chapters 361 to 369." The Meyerses admitted as an uncontroverted material fact that Bank "has at all times, from its incorporation on March 24, 1976 and through the present, been a bank organized, existing, and operating under and pursuant to chapter 362 of the Missouri Revised Statutes."

         The trial court granted Bank summary judgment on Count Three concluding that the MMPA does not apply to certain financial institutions and Bank is such an institution. The Meyerses timely appeal.[2]

         Kendricks's Motion to Dismiss Appeal is Granted

         The Kendricks filed a motion to dismiss the Meyerses' appeal stating that "[the Meyerses] fail to allege any error on the part of the circuit court by granting [the Kendricks'] Motion to Dismiss [the Meyerses'] claim for statutory and/or equitable redemption." We agree. Although the Meyerses listed the Kendricks as respondents in their notice of appeal, the Meyerses do not challenge in any point relied on in their brief any trial court ruling in favor of the Kendricks. For this reason, the Kendricks' motion to dismiss is granted and the appeal, as to them, is dismissed.

         Point One is Moot

         The Meyerses' first point relied on states:

The circuit court erred by granting [] Bank's Motion to Dismiss the [Meyerses'] claims for statutory and/or equitable redemption of [the Meyerses'] home for failure to state a claim because [the Meyerses] adequately stated a cause of action for statutory or equitable redemption under sections 443.410 and 443.420, RSMo., in that [the Meyerses'] pled [sic] that they provided notice to the Bank, that the Bank was the purchaser at the sale and was holder of the debt, that [the Meyerses] deposited sufficient sums with the circuit court to cover the sales price and all debts and other costs, and that the Bank engaged in unfairness and/or irregularity with the sale.

         Before we can consider the merits of this point, however, we must first address whether it presents a justiciable controversy.

A threshold question in any appellate review of a controversy is the mootness of the controversy. Because mootness implicates the justiciability of a case, an appellate court may dismiss a case for mootness sua sponte. . . .
In terms of justiciability, a cause of action is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy. The existence of an actual and vital controversy susceptible of some relief is essential to appellate jurisdiction. When an event occurs that makes a court's decision unnecessary or makes granting effectual relief by the court impossible, the case is moot and generally should be dismissed.

State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001) (internal citations and quotations omitted).

         The Meyerses argue trial court error in the grant of Bank's motion to dismiss their redemption claims. The Kendricks, however, also filed a motion to dismiss the redemption claims as to them that the trial court granted. As noted above, the Meyerses have not challenged in this appeal the trial court's grant of the Kendricks' motion to dismiss. Therefore, that dismissal is final and the Kendricks own the residence free and clear of any claim by the Meyerses for redemption.

         Redemption is remedial; the remedy is restoration of title. State ex rel. LeFevre v. Stubbs, 642 S.W.2d 103, 106 (Mo. banc 1982); Greene v. Spitzer, 123 S.W.2d 57, 62 (Mo. 1938). Where the remedy cannot be accomplished, the controversy is moot in that we cannot grant effective relief. Euc ...


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