Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF CARTER COUNTY Honorable Harvey S.
W. LYNCH, J.
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). 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.
and Procedural Background
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
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.
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."
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
Motion to Dismiss Appeal is Granted
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
One is Moot
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.
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).
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
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.