Means v. Clardy

791 S.W.2d 433, 1990 Mo. App. LEXIS 527, 1990 WL 36626
CourtMissouri Court of Appeals
DecidedApril 3, 1990
DocketNo. WD 42271
StatusPublished

This text of 791 S.W.2d 433 (Means v. Clardy) 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
Means v. Clardy, 791 S.W.2d 433, 1990 Mo. App. LEXIS 527, 1990 WL 36626 (Mo. Ct. App. 1990).

Opinion

BERREY, Judge.

Appeal from a judgment, after retrial, in favor of defendants-respondents, Bruce Clardy, Gary Doerhoff, Joan Doerhoff, John Gross and Zurich Insurance Company in an action brought by plaintiffs-appellants, Rick Means and Fred Barry, to collect on a promissory note and to collect damages against a notary and his insurance company for the making of a false acknowledgment. Appellants present four points on appeal: (1) that the trial court erred in determining that the document in question was a contract and not a note; (2) that the trial court erred in finding for respondents Gross and Zurich Insurance Company as they are liable for a false acknowledgment; (3) that the trial court erred in finding for Bruce Clardy because he was guilty of forgery and procurement of a false jurat; and (4) that the court should not consider the discharge of the Doerhoffs in bankruptcy.

A detailed description of the facts in the instant case is given by this court in the first appeal of this action in Means v. Clardy, 735 S.W.2d 6 (Mo.App.1987). Although a restatement of these facts would usually be duplicitous, because of the complicated nature of the events which triggered the litigation here, a brief description of the litigants and their roles is necessary.1 Appellants, Rick Means and Fred Barry, owned an apartment building which they wished to sell. On July 18, 1980, they entered into a contract for deed with respondents, Joan and Gary Doerhoff. The agreement provided that the Doerhoffs would receive the apartment in exchange for 6.81 acres of land in Maries County, Missouri, and a note purportedly executed by Nancy Clardy, respondent Bruce Clar-dy’s mother. The note had a balance due on it of $21,882 and, at that time, several of the monthly installments were in arrears.

The note in question had been given the Doerhoffs as a part of the sale of their cabinet business to Nancy Clardy. The note had been originally made for $31,000. Five thousand dollars of that amount was to be paid by October 25, 1979, with the remainder to be paid off in monthly installments of $1,250 payable in cabinets “figured at the prevailing builders price....” This arrangement was to last until October 12, 1981, when the entire balance became due and payable in cash. However, there would be no balance due at the date of maturity if all payments were made. The note bore the purported signature of Nancy Clardy, however, Nancy Clardy had not in actuality signed the note.

Appellants received a bill of sale, a note attached to it and a security agreement at the time they entered into the contract for deed with the Doerhoffs. The closing on the contract for deed was scheduled for October 12, 1981.

The evidence presented at the retrial, which included a deposition made by Bruce [435]*435Clardy, clearly show» that appellants had knowledge of the falsity of the signature of Nancy Clardy long before the closing date. Bruce Clardy, in his deposition, testified that he had told the appellants at various times that the signature was not that of Nancy Clardy. He mentioned that he had informed them of the signature’s falsity before the closing. Appellant Means testified that he was first informed of the falsity of the signature in spring of 1981. This was still well before the scheduled closing date of October 12, 1981.

Nancy Clardy’s signature on the Bill of Sale for the Doerhoffs’ cabinet business was notarized by respondent John Gross. The Bill of Sale refers to “a note and security agreement, attached....” There is some question as to whether the note was actually attached at the time of the notarization. Curiously, the note is dated October 12, 1979, one day after the Bill of Sale was dated and notarized. Respondent Gross testified that Nancy Clardy had not signed any documents in his presence but that as a favor to Bruce he notarized the Bill of Sale after Bruce told him that Nancy Clardy had signed it.

Appellants filed suit against Nancy Clar-dy, Bruce Clardy, Joan and Gary Doerhoff, John Gross and Zurich Insurance Company, Gross’ bonding company. The case was tried and eventually appellants’ claims against all of the parties were dismissed by the trial court. This decision was appealed to this court where the judgment in favor of Nancy Clardy was affirmed, but the judgments in favor of Gary and Joan Doer-hoff, Bruce Clardy, John Gross and Zurich Insurance Company were reversed and remanded for further proceedings. Means v. Clardy, supra, 735 S.W.2d at 12.

The cause was sent back to the trial court where, on January 24, 1989, a short hearing was held in which the parties stipulated that the evidence in the first hearing together with a deposition taken from Bruce Clardy would be considered as the evidence in the instant matter. The trial court found in favor of respondents. This appeal followed.

Appellants first contend that the trial court erred in relieving the Doerhoffs of liability by its determination that the instrument in question was a contract and not a note as both the circuit court and this court ruled that the instrument was a note. Appellants do not cite any authority for this point nor do they relate just why this was error or how it affected them. Instead, their citations under this point concern the transferability of notes. They do not give authority which would clarify and explain their Point Relied On. This constitutes a violation of Rule 84.04 which states that, “[t]he 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, with citations of authorities thereunder.” Appellants’ brief on this point is unacceptable. Where irrelevant authority is cited to support a point it is as if that point was presented naked of citations and constitutes an abandonment of that point. Cox v. Blackwell, 661 S.W.2d 831 (Mo.App.1983); See also Barkley v. Monsanto Company, 717 S.W.2d 566 (Mo.App.1986). Although normally it is with great reluctance that a point is deemed abandoned, in the instant case appellants had already been given the opportunity to correct any deficiencies in their brief, and failed to do so. Appellants’ first point is denied.

Appellants next argue that the trial court erred in finding for respondents Gross and Zurich Insurance Company. Review of the trial court’s judgment is done in light of the familiar principles found in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 32.

Appellants argue that because there was a false acknowledgment of the signature of Nancy Clardy, which was shown to be the procuring cause of their loss, Gross and Zurich Insurance Company are liable. To be precise, the false signature of Nancy Clardy appeared on the notarized Bill of [436]*436Sale. In Means I this court discussed the question of what documents were involved in this notarization. The court stated:

The notarized Bill of Sale referred to the “attached note” and plaintiffs received the Bill of Sale and note together.

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Related

Murphy v. Carron
536 S.W.2d 30 (Supreme Court of Missouri, 1976)
Cox v. Blackwell
661 S.W.2d 831 (Missouri Court of Appeals, 1983)
Means v. Clardy
735 S.W.2d 6 (Missouri Court of Appeals, 1987)
Barkley v. Monsanto Co.
717 S.W.2d 566 (Missouri Court of Appeals, 1986)

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Bluebook (online)
791 S.W.2d 433, 1990 Mo. App. LEXIS 527, 1990 WL 36626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/means-v-clardy-moctapp-1990.