Dalton Investments, Inc. v. Nooney Co.

10 S.W.3d 590, 2000 Mo. App. LEXIS 125, 2000 WL 51908
CourtMissouri Court of Appeals
DecidedJanuary 25, 2000
DocketNo. ED 76360
StatusPublished
Cited by5 cases

This text of 10 S.W.3d 590 (Dalton Investments, Inc. v. Nooney Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dalton Investments, Inc. v. Nooney Co., 10 S.W.3d 590, 2000 Mo. App. LEXIS 125, 2000 WL 51908 (Mo. Ct. App. 2000).

Opinion

ROBERT E. CRIST, Senior Judge.

NationsBank, N.A. (Bank) appeals from partial summary judgment entered in favor of Dalton Investments, Inc. and Deborah Nooney Speier (Brokers) in their civil action brought under the Commercial Real Estate Brokers’ Lien Act (CREBLA), sections 429.600 to 429.680, RSMo 1994. We reverse and remand.

The majority of the facts in this matter are not in dispute. In 1989, Nooney Properties, Inc. bought a retail strip mall in Florissant, Missouri. At that time, Noo-ney granted Bank a first Deed of Trust on the property. The Deed of Trust secured a guarantee of payment of a promissory note in the amount of $4.6 million. The Deed of Trust was recorded with the St. Louis County Recorder of Deeds. The Deed of Trust was later modified to also secure a guarantee of a second promissory note in the amount of $350,000.

On May 17, 1992, Nooney Company and its subsidiaries, including Nooney Properties, Inc., executed an agreement with Deborah Nooney Speier, naming her the exclusive listing agent for any of its properties. A subsequent agreement named Dalton, a company formed by Speier, as the exclusive listing agent for its properties and provided that Brokers would be paid a listing fee of six percent of the sale price for property.

On November 5, 1997, Nooney Properties sold the Florissant property to American Spectrum Realty Co. At the time, Noo-ney still owed $8,845,734 on the original note and $124,794.60 on the second note. After closing costs, $1,205,879.88 remained of the sale proceeds. From this amount, Southwest Bank was paid $317,940.98 in satisfaction of a judgment it had against the Nooney defendants. The remainder, $887,928.90, was to be paid to Bank for application to the amounts secured by the Deed of Trust. In exchange for this amount, Bank executed a Deed of Release, which was recorded with the Recorder of Deeds on November 6th.

On November 5th, Brokers filed a Notice of Brokers’ Lien for $72,600 with the St. Louis County Recorder of Deeds pursuant to section 429.607. As a result of this lien and the fact the property was undersecured, $90,750 was taken from the $887,928.90 to be paid Bank and was placed in an escrow account pursuant to terms of an Escrow Agreement dated November 6, 1997 between Nooney, American Spectrum and First American Title Company. But for Broker’s lien claim, Bank would have received the entire $887,938.90 at closing because of its first deed of trust. However, because of Brokers’ lien, $90,750 was placed in an escrow account.

On February 24, 1998, Brokers filed a civil action against Nooney Company, Noo-ney Properties, Inc., American Spectrum Realty, Inc. and Nooney Krombach Company. In Count I, Brokers brought a claim to enforce a real estate brokers’ lien [592]*592pursuant to section 429.618, seeking recovery of $72,000. In Count II, Brokers alleged a breach of contract. Bank filed a motion to intervene, which was granted. Bank also filed a counterclaim, alleging it was entitled to the funds held in the escrow account.

On February 8, 1999, Brokers filed a motion for summary judgment on Bank’s counterclaim. Essentially, Brokers contended that Bank did not have any claim to the escrowed funds because it released its secured interest in the property on the date of closing. Therefore, Brokers argued that Bank did not have a valid, prior recorded lien or mortgage as required by section 429.618. Bank countered with its own motion for partial summary judgment against Brokers, contending it had a prior and superior claim to the escrowed funds. Nooney Properties joined in the motion.

On March 15, 1999, the trial court entered judgment in favor of Brokers on their motion for summary judgment and against Bank on their motion. The court concluded that although Bank had a prior recorded mortgage, it had released that mortgage at the closing of the sale of the property and thus, did not come within the provisions of section 429.618. As such, Bank had no right or interest in the es-crowed funds. Bank filed a Motion to Amend the Judgment on April 7, 1999. Based on that motion, the court entered an amended judgment to “specifically show of record that there is no just reason for delay” and concluded the judgment was final for purposes of appeal pursuant to Rule 74.01(b). Bank appealed.

In Point I, Bank contends the trial court erred in granting partial summary judgment in favor of Brokers and against Bank because the language of section 429.618 provides that the holder of a prior recorded mortgage takes priority over a broker’s lien and the court misinterpreted CREB-LA to conclude Bank had no right to the escrowed funds.

When considering appeals from summary judgments, an appellate court reviews the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Review is essentially de novo and our criteria on appeal for testing the propriety of summary judgment are no different than those used by the trial court to determine if summary judgment was appropriate. Id. The propriety of summary judgment is purely an issue of law. As the trial court’s judgment is based on the record submitted and the law, the appellate court need not defer to the trial court’s decision. Id.

CREBLA is a fairly new addition to our statutes and only one case has interpreted any of its provisions. See, Incentive Realty, Inc. v. Hawatmeh, 983 S.W.2d 156 (Mo.App. E.D.1998). CREB-LA generally provides a lien on commercial real estate in favor of real estate brokers “in the amount of compensation as agreed upon by the real estate broker and the real estate broker’s client or customer.” Section 429.605.1. Such a lien arises upon the recording of a notice under section 429.609. To enforce that lien, a broker must file a civil suit within six months. Section 429.616-.618. In this case, we assume for purposes of argument that Brokers have a valid lien pursuant to section 429.605. The question remains, however, whether Bank’s lien retains any priority over Brokers’ lien. , We believe it does.

Section 429.618.2 provides that: “Valid prior recorded liens or mortgages shall have priority over a real estate broker’s lien.” Brokers agree with this statement and also agree that at one time, Bank did have a valid prior recorded lien which would have been entitled to priority. However, they aver that now Bank does not have a “valid” prior recorded lien or mortgage because at the closing they filed a general Deed of Release, releasing their security interest in the property. Howev[593]*593er, Bank contends that it was required under law to release the deed of trust and that nothing in CREBLA indicates it should lose its lien priority if it releases a lien after and in reliance upon the establishment of an escrow account under section 429.627.

We agree with Bank’s interpretation of CREBLA. In reviewing CREBLA, we must ascertain the intent of the legislature by considering the plain and ordinary meaning of the words used in the statute. Incentive Realty, Inc., 983 S.W.2d at 159. In addition, we may examine other sections of CREBLA to determine the legislature’s intent. See, Marre v. Reed, 775 S.W.2d 951, 958 (Mo. banc 1989).

Section 429.627 provides:

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Bluebook (online)
10 S.W.3d 590, 2000 Mo. App. LEXIS 125, 2000 WL 51908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dalton-investments-inc-v-nooney-co-moctapp-2000.