Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of the City of St. Louis Honorable
David L. Dowd
M. Hess, Presiding Judge.
Dann ("Dann") appeals from summary judgment entered
December 5, 2018 in favor of Kroner Investments, LLC
("Kroner Investments") on its petition for
declaratory judgment and quiet title and on Dann's
counterclaim petition for judicial foreclosure. The action
revolves around the parties' competing interests in real
property previously owned by husband and wife, Christopher
and Sharon Smith (collectively, "the Smiths"). The
Trial Court found Dann's deed of trust from Christopher
Smith void ab initio because the Smiths held the
property as tenants in entireties.
Point I, Dann argues the trial court erred in granting
summary judgment when it permitted Kroner Investments to
assert Sharon Smith's right under § 474.150.2 RSMo,
assert a claim for marital fraud to invalidate Dann's
Deed of Trust from Christopher Smith. In Point II, Dann
argues the trial court erred in granting summary judgment
where she raised an affirmative defense of
"laches." In Point III, Dann argues the trial court
erred in granting Kroner Investments' motion for summary
judgment on her claim for judicial foreclosure because she
had a valid, unsatisfied deed of trust.
no error on the record before us, we affirm the judgment of
the trial court.
matter concerns two parcels of real estate in the City of St.
Louis, Missouri, formerly owned by husband and wife, the
Smiths. On March 6, 2016, Kroner Investments contracted in
writing with the Smiths to purchase the real estate. The
contract required payment of $2, 500 within (3) days of an
acceptance deadline. By April 15, 2016, Kroner Investments
had paid in full the $425, 000 purchase price for the land.
April 6, 2016, Dann recorded a Deed of Trust executed by and
identifying Christopher Smith as grantor alone, purporting to
secure his promise to pay an unpaid child support judgment to
Dann in the amount of $59, 229.07 as due upon sale.
Investments sued to quiet title on March 7, 2018. Dann filed
a counter-claim for judicial foreclosure on April 17, 2018.
Kroner moved for summary judgment on its Petition on May 8,
2018. Kroner Investments moved for summary judgment and to
dismiss on Dann's counter-claim on May 16, 2018.
trial court granted Kroner Investments' Motion for
Summary Judgment, finding the summary judgment record
reflected the Smiths, as husband and wife, held the
properties together as tenants in the entireties which made
the deed of trust transfer to Dann by the husband invalid as
a matter of law. Dann's counter-petition for judicial
foreclosure of the property was similarly dismissed because,
as a matter of law, an invalid deed of trust could not attach
to the property, regardless of Christopher Smith's intent
to offer it as security for his child support obligation.
standard of review on appeal regarding summary judgment is
essentially de novo. Foster v. St. Louis
County, 239 S.W.3d 599, 601 (Mo. banc 2007). Summary
judgment will be upheld on appeal if there is no genuine
dispute of material fact and the movant is entitled to
judgment as a matter of law. Id. We review the
record in the light most favorable to the party against whom
judgment was sought. State ex rel. Mo. Highway &
Transp. Comm'n v. Dierker, 961 S.W.2d 58, 60 (Mo.
banc 1998). Facts set forth by affidavit or otherwise to
support the motion are taken as true unless contradicted by
the non-movant's response to the summary judgment motion.
Id. The non-movant receives the benefit of all
reasonable inferences from the record. Id. However,
all facts must come into the summary judgment record as
required by Rule 74.04(c)(1)and (2), in separately numbered
paragraphs or in response addressed to those numbered
paragraphs. Holzhausen v. Bi-State Dev. Agency, 414
S.W.3d 488, 493 (Mo. App. E.D. 2013). A party confronted by a
proper motion for summary judgment may not rest upon mere
allegations or denials in his or her pleadings, but in order
to overcome the motion, the party must set forth specific
facts supported by affidavits, discovery, or admissions on
file showing a genuine issue for trial. Id. A
non-movant who relies only upon mere doubt and speculation in
its response to the motion for summary judgment raises no
issue of material fact. Id.
I - Summary Judgment Applying ...