Paul Londe, Inc. v. Carlie

743 S.W.2d 564, 1987 Mo. App. LEXIS 5072, 1987 WL 2738
CourtMissouri Court of Appeals
DecidedDecember 15, 1987
DocketNo. 52817
StatusPublished
Cited by2 cases

This text of 743 S.W.2d 564 (Paul Londe, Inc. v. Carlie) 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
Paul Londe, Inc. v. Carlie, 743 S.W.2d 564, 1987 Mo. App. LEXIS 5072, 1987 WL 2738 (Mo. Ct. App. 1987).

Opinion

KAROHL, Presiding Judge.

This is an appeal by five of seven individual defendants, who were co-makers of a promissory note for $750,000. The “En-ger” defendants appeal after summary judgment in favor of plaintiff, a Missouri Corporation, for $278,038.99. On July 7, 1986 the court granted partial summary judgment on the issue of liability for the balance of principal due. An evidentiary hearing was held on November 24,1986, to determine interest and attorney’s fees owed on the note. Based thereon the court entered summary judgment in favor of plaintiff and against all seven defendants, [565]*565jointly and severally, in the amount of $278,038.99 which included principal, interest and a ten percent attorney’s fees. We reverse and remand.

Plaintiff’s first amended petition alleged the corporate existence of plaintiff, the execution of the promissory note by defendants and two other individuals, the terms of the note, plaintiff’s status as holder of the note and the amount due under the note.

Thereafter, the Enger defendants filed their answer admitting the corporate existence of plaintiff and the venue, but denying the remaining allegations. Their answer alleged that plaintiff had failed to state a claim upon which relief could be granted. Additionally, three affirmative defenses were raised: (1) that the note had been paid in full and no amounts were due and owing by the Enger defendants; (2) that the En-ger defendants had entered into an agreement with the original holder of the note, Boatmen’s Bank of St. Louis County (Boatmen’s), whereupon the bank and all subsequent holders and purported holders of the note were bound to seek recovery solely from the remaining two defendants, the “Carlie” defendants; and (3) that plaintiff lacked any right to enforce the note because Paul Londe, Inc. was not the true legal holder of the note, did not pay valuable consideration therefor, and had no right, title or interest therein.

Thereafter, plaintiff filed a motion for summary judgment together with two affidavits in support of the motion. The first affidavit was signed by Paul Londe as president of plaintiff, Paul Londe, Inc. He swore that he was “the President of Paul Londe, Inc., a corporation which is the present holder for value of a certain promissory note dated July 1, 1984, a copy of which is attached hereto, said note being in the principal amount of $750,000.” His affidavit also states that “Paul Londe Inc. purchased said note from Mark Twain Progress Bank on or about July 3,1985 for good and valuable cash consideration in the amount of $228,236.55.” Finally, he affirms that the principal sum due on the note is $203,000.00; that interest is due and owing since November 1, 1984 with the exception of the sum of $17,405.10 paid on or about June 6,1985; and, that all defendants executed the note as general partners of a partnership, Tiger, Fireside, Stone, Carlie and Company.

The second affidavit in support of the motion for summary judgment was executed by Michele Kopolow, a Vice-President of Mark Twain Progress Bank. By her affidavit she swore to the following facts: (1) “On behalf of the Bank and Mr. Paul Londe, d/b/a Paul Londe, Inc., a customer of the Bank, I participated in negotiations to acquire by purchase from Boatmen’s Bank of St. Louis County (Boatmen’s) a certain promissory note dated July 1, 1984 in the principal amount of $750,-000;” (2) that said note was purchased by the Bank for cash consideration in the amount of $228,236.55.; (3) that “[s]aid note was purchased for the account of Paul Londe d/b/a Paul Londe, Inc. and the funds to purchase the said note were the proceeds of a loan from the Bank to Paul Londe, d/b/a Paul Londe, Inc. After purchase, said note was assigned by the Bank to Paul Londe ” (our emphasis); and, (4) “[s]aid note has been pledged to the Bank by Paul Londe, d/b/a Paul Londe, Inc. as security for the loan referred to above.”

An affidavit in support of a motion for continuance and in opposition to plaintiff’s motion for summary judgment was filed by Alan B. Hoffman, counsel for the Enger defendants. This affidavit presented to the court the following: “Said promissory note was originally executed by defendants to the order of Boatmen’s Bank of St. Louis County (“The Bank”). At the time the promissory note was executed, all of the defendants were partners in the public accounting partnership of Tiger, Fireside, Stone, Carlie & Company. In November, 1984, said partnership was terminated. In May, 1985, defendants Enger, Borowski, Worth, Goldstein and Mitchell (the “Enger” defendants) paid the Bank one-half of principal amount, accrued interest, and attorney’s fees incurred by the Bank in efforts to collect said promissory note, and received an undertaking from the Bank that it would seek to recover the remaining principal balance, interest and collection costs [566]*566solely from defendants Stone and Carlie.” The affidavit continues, “Defendants, Bo-rowski, Worth, Goldstein and Mitchell have raised affirmative defenses of payment, discharge and lack of capacity on the part of plaintiff to enforce the subject Promissory Note as the holder of same.” Significantly, the counter affidavit also sets forth, a statement that the Enger defendants “have previously caused a Request for Production of Documents to be served on plaintiff, but the hearing date presently scheduled on plaintiff’s motion is prior to the date when plaintiff is required to file its response to the pending request.” The affidavit states as a conclusion that in order to properly assert their defenses and oppose the motion for summary judgment the Enger defendants needed the product of the Motion for Production of Documents and depositions of Paul Londe and others “having knowledge of the circumstances under which plaintiff now claims to be the holder for value or the subject Promissory Note.” The motion for continuance requested sufficient time beyond the setting of July 7, 1986 in order to fully defend against plaintiff’s motion for summary judgment.

The trial court denied the Enger defendants’ motion for continuance and granted partial summary judgment on the issue of liability only on July 7, 1986. The eviden-tiary hearing on November 24, 1986 was limited by the trial court, over objection of the Enger defendants, to proof of sums due as interest and attorney's fees according to the terms of the Note. Final judgment was entered on December 2, 1986.

Appellants have filed a motion to strike certain portions of the statement of facts in respondent’s brief on the ground that certain statements therein are argumentative, incorrect and not supported by any evidence. We do not believe that the fact respondent underlined three words in the statement of facts undermines our ability to determine whether these were undisputed relevant facts which were before the trial court when it granted summary judgment. See, Zurheide-Hermann, Inc., v. London Square Dev. Corp., 504 S.W.2d 161, 164 (Mo.1973). Accordingly, the motion to strike is overruled.

Summary judgment is proper only when the court determines that there is no genuine issue of material fact and that movant is entitled to judgment as a matter of law. Chapman v. Auto-Owners (Mut.) Ins. Co., 684 S.W.2d 335, 336 (Mo.App.1985). On review we will scrutinize the evidentiary record in the light most favorable to the party against whom the judgment was rendered and accord to that party the benefit of every doubt.

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Cite This Page — Counsel Stack

Bluebook (online)
743 S.W.2d 564, 1987 Mo. App. LEXIS 5072, 1987 WL 2738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paul-londe-inc-v-carlie-moctapp-1987.