Property Law

Paul F. Sherman, Esquire

Where deed of trust requires trustee appointment to be recorded, then same is satisfied where recording occurs prior to foreclosure sale. The Bank of Missouri v. South Creek Properties, LLC, et al., Nos. 32374 and 32543 (Mo. App. S.D., April 10, 2014), Sheffield, J. 

After foreclosure of commercial property, the Bank of Missouri (“Bank”) sued the Defendants for a deficiency judgment. Defendant South Creek cross-petitioned for quiet title and wrongful foreclosure adding Treadwell (subsequent purchaser) as an additional defendant. The Bank’s loan for $1,050,000 was to South Creek and Hammer to build the building secured by a deed of trust on same and the unconditional guaranty from Michael and Charlotte Dawley.

The Bank observed “suspicious activity” on the account November 10, 2009 and investigated, finding Michael about to leave for Louisiana. Default was declared November 11, 2009. Foreclosure occurred December 16, 2009 with deficiency resulting of $389,277.13. Hammer ceased operations February 2010.  Treadwell bought the property from the Bank. Suit for deficiency filed February 11, 2010 was tried and judgment by the court in favor of Bank entered.

On appeal the foreclosure sale was not void for failure to record appointment of the trustee. The appointment had been recorded as required by the deed of trust prior to sale so any irregularity was not substantial. The sale was valid.

Lack of notice of right to cure prior to foreclosure was not fatal where language of deed of trust so required. Notice was only required if other than default in payment, which this was not. No notice was required.

Interpreting the contract, the Note did not require a ten-day grace period for payments before foreclosure commenced. No ambiguity exists, payments were due on the 16th.

South Creek was not wrongfully foreclosed. South Creek failed to prove it was not in default. The November 16, 2009 payment was not made and foreclosure began November 20, 2009.

Held:  Affirmed.
Because the foreclosure sale was found and affirmed as valid, whether Treadwell was a bona fide purchaser for value or not was rendered moot.

“Massachusetts Rule” protects an invitor generally from falls on snow or ice on outside areas where accumulation occurs naturally due to general weather experienced by a community. Medlock v. St. John’s Health System, Inc., et al., No. 32776 (Mo. App. S.D., April 4, 2014), Lynch, J. 

Amanda Medlock slipped and fell on an icy sidewalk outside Smith-Glynn-Callaway Clinic (“SGCC”) in Springfield on January 26, 2009. St. John’s owns and operates SGCC. When Amanda arrived at SGCC to have her daughter seen that afternoon, the parking lot and sidewalk were wet when she entered. Freezing rain was falling one hour fifteen minutes later when she left, but no salt or anything else had been applied according to Amanda’s companion who was also then present and told Amanda to be careful just before Amanda slipped and fell. Amanda claims breach for failure to remove, warn or barricade. St. John’s defended alleging Amanda fell on a natural accumulation of ice due to weather. The trial court granted St. John’s motion for summary judgment based on the “Massachusetts Rule.”

The “Massachusetts Rule” has long been the law in Missouri that an invitor has no duty to remove snow or ice on outside areas where accumulation occurs naturally as a result of general weather conditions, unless one agrees otherwise to be bound or by course of conduct.

Held: Affirmed.
In the facts presented there was no evidence but that the ice was formed by freezing rain that was continuing to fall. Therefore, St. John’s was under no duty to prevent Amanda’s fall. Hazards to guard against are generally required to be shown greater than those in common with the community in general, such as weather.

Failure to follow Rules 74.04 and 84.04 fatal to appeal. The Executive Board of the Missouri Baptist Convention v. Windermere Baptist Conference Center, et al., Nos. 32699 and 32735 (Mo. App. S.D., March 25, 2014), Francis, Jr., C.J.

This lawsuit spans seven years with numerous amendments and parties throughout, and the current case represents its fourth trip to an appellate court. Previous appeals are cited throughout by shorthand reference as Windermere I, Windermere II and Windermere III.  On appeal currently are eighteen points with 4,000 pages of legal file. On appeal this time after the trial court granted summary judgment in favor of Respondents, the case centers on title ownership of a 1,300 acre conference and recreational center (“Windermere Baptist Conference Center”) situated in Camden County. Plaintiff was the titled owner of the Windermere Baptist Conference Center. Plaintiff then authorized the incorporation of “WBCC” to take over and operate the Windermere Baptist Conference Center. The WBCC articles did not require actions taken be approved by the Missouri Baptist Convention (“MBC”).  MBC voted in favor of the Recommendation ratifying WBCC’s articles and transferring the assets and liabilities of Plaintiff to WBCC effective January 1, 2001. WBCC became its own self-perpetuating entity. Plaintiff has since sought to invalidate WBCC and re-acquire the property and assets. Now pending are Plaintiff’s claims for fraud, breach of fiduciary duties and quiet title. In response to multiple motions for summary judgment Plaintiff relied on a Collins affidavit which was stricken. Plaintiff’s briefing failed to comply with Rules 74.04 and 84.04 in many respects and did not challenge the striking of the Collins affidavit, still attempting to rely on it. The appeal should have been dismissed, but was not. Finding no valid points remain, summary judgments are affirmed.

Held: Affirmed.