Tryon v. McElyea

912 S.W.2d 73, 1995 Mo. App. LEXIS 1797, 1995 WL 631163
CourtMissouri Court of Appeals
DecidedOctober 27, 1995
DocketNo. 19624
StatusPublished
Cited by6 cases

This text of 912 S.W.2d 73 (Tryon v. McElyea) 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
Tryon v. McElyea, 912 S.W.2d 73, 1995 Mo. App. LEXIS 1797, 1995 WL 631163 (Mo. Ct. App. 1995).

Opinion

CROW, Judge.

Plaintiffs, John P. Tryon (“Phil”1) and Darvene Tryon, sued Defendants, Charles McElyea, John L. Walker, and Phillips, McElyea, Walker & Carpenter, P.C., for malpractice. The first two defendants are lawyers and shareholders in the third defendant, a professional corporation.

A jury returned a verdict for Defendants. The trial court entered judgment thereon. Plaintiffs appeal.

Plaintiffs’ brief presents three points relied on; however, at oral argument Plaintiffs abandoned their first point. Their two remaining points assign error in evidentiary rulings by the trial court. We preface our discussion of those issues with a synopsis of the evidence.

In 1985, Plaintiffs (husband and wife) and Marie Scott (Darvene’s mother) owned Malibu Beach Resort in Camden County. Plaintiffs had operated it some twenty years.

On a date unrevealed by the record, but inferably around May 1, 1985, some people came to the resort and told Plaintiffs they were interested in buying it. Phil testified the group consisted of Leslie Blair, Alan Blair, William Johnson, John Galdamez and Frank Christenson. Darvene recalled the group consisted of the Blairs, Christenson, and perhaps Johnson and Galdamez. At either that meeting or a later one, Plaintiffs told the prospective buyers the price was $1,250,000.

By June 3, 1985, discussions had progressed far enough that Plaintiffs went to Defendant McElyea. Darvene testified: “[W]e told him that we had these people that wanted to buy the resort and we didn’t know how to go about it. We wanted him to take care of everything for us.”

For the next several weeks, negotiations proceeded between Plaintiffs, represented by McElyea, and the prospective buyers, represented by lawyer John Curran. When Mc-Elyea was unavailable, Walker represented Plaintiffs.

A contract of sale was signed July 31,1985, naming Plaintiffs and Marie Scott as sellers and Glaize Cay Development Corp. (“Glaize Cay”) as buyer. Glaize Cay had been incorporated by the prospective buyers while the negotiations advanced. The contract was signed for Glaize Cay by Alan Blair, its president, and Galdamez, its secretary.

The contract specified a purchase price of $1,250,000 to be paid:

a. $100,000 upon signing the contract, deposited with Bank of Lake of the Ozarks as agent for the sellers.
b. $316,666 at closing.
c. $833,334 to be paid per a promissory note secured by a deed of trust on the resort. The note called for five annual payments of principal in the amount of $100,000 each, beginning August 15, 1986. On August 15, 1991, all remaining principal was due. Interest was to be paid monthly starting September 15, 1985, and continuing until August 15,1986. Beginning that date, interest was to be paid quarterly until August 15, 1991, when all remaining indebtedness was to be paid.

One provision in the contract required Plaintiffs to release segments of the resort from the lien of the deed of trust as the indebtedness was reduced.

The sale was closed August 21, 1985. Plaintiffs received the $416,666 cash pursuant to provisions “a” and “b” of the contract, supra. They also received the promissory note secured by the deed of trust.2 Pursuant to the proviso described in the preceding paragraph, Plaintiffs simultaneously released one segment of the resort from the hen of the deed of trust.

Shortly after the closing, Glaize Cay was renamed “The Moorings at Malibu, Inc.” (“Moorings”). According to Darvene, Moor[75]*75ings made the first nine monthly interest payments on time, then “they started just getting a little later and a little later.” Moorings was nonetheless able to make the first $100,000 principal payment in August, 1986.

Darvene testified that the quarterly interest payment due February 15, 1987, “was like 18 or $21,000, somewhere in that vicinity.” Darvene recounted that several of the investors in Moorings came to Plaintiffs’ home and said they were unable to make the payment. Roderick Russell, a member of the group, paid Plaintiffs $10,000 a few days later. That was the last sum Plaintiffs ever received on the note.

Plaintiffs eventually consulted lawyer Warren Donaldson about collecting the unpaid balance on the note. He asked Plaintiffs whether “there were any personal guaranties.”

Both Phil and Darvene testified they did not know at that time what a personal guaranty was.

In December, 1987, Donaldson began publication of notice of foreclosure of the deed of trust. In January, 1988, prior to the date designated for the sale, Moorings filed a petition in bankruptcy.

While the bankruptcy was pending, Donaldson assisted Plaintiffs in negotiating an “Agreement for Deed in Lieu of Foreclosure.” Pursuant thereto, Moorings gave Plaintiffs a quitclaim deed May 26,1989. As we understand it, the deed conveyed to Plaintiffs all of the resort property originally covered by the deed of trust except the segment Plaintiffs released at closing, August 21, 1985.

Plaintiffs ultimately sold the property to “Bax Construction” for $520,000 on January 25, 1991. Some of that amount was in cash, the rest was in two parcels of real estate.

Plaintiffs filed this suit April 8, 1991. Their theory of liability against Defendants, as submitted in the verdict-directing instruction tendered by Plaintiffs and given by the trial court, was that Defendants were negligent in failing to advise Plaintiffs of the need to obtain personal guaranties from the principals of Glaize Cay.3 Darvene testified that because of Defendants’ negligence, Plaintiffs sustained over a half million dollars in damage.

On the fact question of whether McElyea or Walker ever mentioned personal guaranties, Phil testified:

“Q At any time during the course of the conversations with either Mr. Walker or Mr. McElyea did you discuss with them what personal guaranties were?
A No.
Q Did you at that time know what a personal guaranty was?
A No.”

Darvene testified:

“Q Mrs. Tryon, during the course of any of these meetings or at any time before the real estate contract was signed, did anyone from Mr. McE-lyea’s office discuss with you the subject of personal guaranties?
A No, sir.
Q Did anyone say to you what a personal guaranty was?
A No.
Q Was there any discussions about personal guaranties at any meetings?
A No, there wasn’t.
Q Did you know what a personal guaranty was?
A At that time?
Q Yes.
A No.”

[76]

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Bluebook (online)
912 S.W.2d 73, 1995 Mo. App. LEXIS 1797, 1995 WL 631163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tryon-v-mcelyea-moctapp-1995.