First Bank Centre v. Thompson

906 S.W.2d 849, 1995 Mo. App. LEXIS 1406, 1995 WL 464787
CourtMissouri Court of Appeals
DecidedAugust 3, 1995
DocketNo. 19727
StatusPublished
Cited by15 cases

This text of 906 S.W.2d 849 (First Bank Centre v. Thompson) 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
First Bank Centre v. Thompson, 906 S.W.2d 849, 1995 Mo. App. LEXIS 1406, 1995 WL 464787 (Mo. Ct. App. 1995).

Opinion

CROW, Judge.

This action arose from two loans by Plaintiff, First Bank Centre, to Sylvan Bay Golf & Country Club, Inc. (“SBG & CC”). Plaintiff alleged the first loan was guaranteed by eight individuals: Ronald Thompson and Janice Thompson, Carter Wrinkle and Joan Wrinkle, Michael French and Bobette French, John Vogel and Yvonne Vogel. Plaintiff alleged the second loan was guaranteed by the same eight individuals plus two others: Bernard Beggan and Patricia Beg-gan.

In the trial court, Plaintiff sought to recover (a) the principal amount of the first loan, plus interest from January 1, 1990, from the Thompsons, the Wrinkles, the Frenchs and the Vogels, and (b) the principal amount of the second loan, plus interest from December 16, 1989, from those eight individuals plus the Beggans.1

The case went to trial before a jury. At the close of Plaintiffs evidence, the trial court directed a verdict against Plaintiff and in favor of all ten defendants.

Plaintiff appeals. The first of its six points relied on reads:

“The trial court erred in granting a directed verdict for Appellees [sic], because Bank proved a prima facia [sic] case on a guaranty and the matter should have been submitted to the jury.”
Rule 84.04(d)2 reads, in pertinent part:
“The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous....”

The purpose of the rule and the necessity of obeying it are fully discussed in the vener[852]*852able case of Thummel v. King, 570 S.W.2d 679, 684-88 (Mo. banc 1978).

Plaintiff’s first point supplies no hint as to wherein and why Plaintiffs evidence made a prima facie case on the guaranties. Consequently, the point presents nothing for appellate review. Mannon v. Frick, 365 Mo. 1203, 295 S.W.2d 158, 166[15, 16] (1956); Aley v. Hacienda Farms, Inc., 584 S.W.2d 126, 127-28[1] (Mo.App.S.D.1979).

However, because of the amount in dispute, we shall examine the argument following the first point to determine whether the directed verdict was plain error within the meaning of Rule 84.13(c). In re Marriage of McCoy, 818 S.W.2d 322, 325[3] (Mo.App.S.D.1991). That rule authorizes an appellate court, in its discretion, to consider plain errors affecting substantial rights, though not raised or preserved, when the court finds manifest injustice or miscarriage of justice has resulted therefrom. Brown v. Mercantile Bank of Poplar Bluff, 820 S.W.2d 327, 335[7] (Mo.App.S.D.1991). We are mindful that the plain error doctrine is rarely resorted to in civil cases. Id.

The saga began June 29, 1988, when SBG & CC, acting through its officers, signed a document identified at trial as Plaintiff’s Exhibit 12. The parties refer to it as a note, hence we denominate it “the first note.”

The principal amount of the first note is $219,000; however, the first note shows a “Loan Amount” of $216,810.3 The first note includes the following provisions, among others:

“Multiple Advance: The principal sum shown above is the maximum amount of principal I can borrow under this note. As of today I have received the amount of $0.00 and future principal advances are contemplated.
Purpose: The purpose of this loan is construction.
Variable Rate: I agree to pay interest at the initial simple rate of 11.250% per year. This rate may change as stated below.
Index Rate: The future rate will be 125% of the following index rate: Wall Street Journal Prime.
Frequency and Timing: The rate on this note may increase as often as Daily. An increase in the index will take effect Immediately.”

The first note provides that accrued interest shall be paid on demand but, if no demand be made, monthly beginning July 30, 1988. Principal is to be paid on demand but, if no demand be made, on June 30, 1990. The first note also provides: “If you must hire a lawyer to collect this note, I must pay his or her fee, plus court costs....”

Defendant John Vogel, once secretary of SBG & CC, testified the purpose of the loan was to finance construction of nine holes of a proposed eighteen-hole golf course on 131 acres owed by SBG & CC. SBG & CC gave Plaintiff a deed of trust on the tract to secure payment of the first note.

Evidence presented by Plaintiff and received by the trial court included a document denominated “Guaranty” signed by defendants Vogel. Among its provisions was this:

“[T]he undersigned guarantee(s) to [Plaintiff] the payment and performance of the debt, liability or obligation of [SBG & CC] to [Plaintiff] evidenced by or arising out of the following: Loan dated June 29, 1988, maturing June 30, 1990....”

The trial court received in evidence identical documents signed by defendants Thompson, Wrinkle and French.

Defendant John Vogel recounted that SBG & CC received no money from Plaintiff on the date the first note was signed. He explained, “[W]e were set up with an escrow draw.” Then, this:

“Q ... Do you have a specific recollection today of receiving $219,000 from First Bank Centre?
[853]*853A I’m sure we received it.
Q Well, I’m asking you, do you specifically recall receiving that total amount of money?
A It would have been drawn over a number of draws, and I’d have to have a calculator and those draws in front of me to determine that, but I don’t know why we would not have received 219,-000. But I don’t have a specific recollection of that, no.
Q So you can’t tell the jury here today that you absolutely certainly received that amount of money; is that correct?
A That’s correct.”

Defendant John Vogel further testified that in the fall of 1988, SBG & CC’s board of directors determined there was insufficient money to complete the golf course, so SBG & CC asked Plaintiff for a second loan.

On March 17, 1989, SBG & CC, by its president, defendant Carter Wrinkle, and secretary Vogel, signed a document identified at trial as Plaintiffs Exhibit 31. The parties refer to it as a note, hence we denominate it “the second note.”

The principal amount of the second note is $65,000. It contains a “Multiple Advance” provision identical to the first note. The purpose of the loan, as shown on the second note, is: “Completion of Golf Course.” The second note further provides:

“Variable Rate: I agree to pay interest at the initial simple rate of 14.375 (125% of Prime) % per year. This rate may change as stated below.”

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Cite This Page — Counsel Stack

Bluebook (online)
906 S.W.2d 849, 1995 Mo. App. LEXIS 1406, 1995 WL 464787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-bank-centre-v-thompson-moctapp-1995.