TANEY COUNTY TITLE & ESCROW, LLC, Plaintiff/Respondent v. RICHARD JENSEN and DJ JENSEN, Husband and Wife, Defendants/Crossclaimants/Appellants and KEVIN KNUDSEN and SHANNON KNUDSEN, Husband and Wife, Defendants/Crossclaimants/Respondents

TANEY COUNTY TITLE )
& ESCROW, LLC, )
)
Plaintiff/Respondent, )
)
vs. ) No. SD36165
) Filed: April 23, 2020
RICHARD JENSEN )
and DJ JENSEN, )
Husband and Wife, )
)
Defendants/Crossclaimants/Appellants, )
)
and )
)
KEVIN KNUDSEN, )
and SHANNON KNUDSEN, )
Husband and Wife, )
)
Defendants/Crossclaimants/Respondents. )
APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY
Honorable Jeffrey M. Merrell, Judge
AFFIRMED
Richard Jensen and DJ Jensen (“the Jensens”) appeal from the trial court’s “Order and
Judgment of the Court,” where the trial court entered judgment in favor of Kevin Knudsen and
Shannon Knudsen (“the Knudsens”) on the Jensens’ amended crossclaim against the Knudsens for
breach of contract and waste. 1 Finding no merit to the Jensons’ four points relied on, we deny the
same and affirm the judgment of the trial court.
Facts and Procedural History
We recite the evidence in accord with the principle that the trial court can believe some,
all, or none of the evidence, and that our standard of review requires us to view the evidence in the
light most favorable to the trial court’s judgment. Bramer v. Abston, 553 S.W.3d 872, 879
(Mo.App. S.D. 2018). We recite other material as necessary for context.
On December 12, 2007, the parties entered into a Contract for Deed (the “Contract”),
whereby the Jensens would sell their house—located at 127 Western Avenue, in Branson, Missouri
(the “Property”)—to the Knudsens for the sale price of $505,000. The Jensens agreed to finance
the purchase price until the Knudsens could secure financing. The Contract also required the
Knudsens to pay the Jensens (in addition to the “purchase price”) $25,000 at closing, consisting of
$5,000 in prepaid interest, $15,000 for points on the loan, and $5,000 as a down payment.
In pertinent part, the Contract provided that:
2.B. . . . . The promissory note shall further provide that if default is made
in any installment payment and such default continues for a period
of ten days, then and in that event the holders of said note shall have
the right to declare the unpaid balance immediately due and payable
and if payment of the unpaid balance is not made within 10 days
thereafter, then and in that event Sellers shall have the right to cancel
1
The Knudsens did not file a brief. Counsel for Knudsens filed a motion to withdraw on March 11, 2020, representing
that the Knudsens “have determined that it is unnecessary for them to file a Respondent’s brief in this case[,]” and
directing this Court to their trial brief (which is part of the legal file). While there is no requirement that respondents
to an appeal file a brief, and no penalty associated with such omission, we are left to adjudicate the issues presented
without the benefit of any argument the Knudsens may have asserted. See Erskine v. Dir. of Revenue, 428 S.W.3d
789, 790 n.1 (Mo.App. S.D. 2014). We observe the salient commentary of Judge Lamm on this issue—though
precatory here, representing sound considerations for respondent counsel evaluating whether to file a brief on appeal:
“Respondents . . . file no brief. Why so? The court was open. The rules invited them. We sit to hear, and then
decide, whereby due process of law is accorded agreeably to the law of the land. . . . In De Paige v. Douglas, 234 Mo.
loc. cit. 81, 136 S.W.345 [(Mo. 1911)], we had occasion to comment on the unwisdom of that course.” Lee v. Lee,
258 Mo. 599, 167 S.W. 1030, 1035 (Mo. 1914) (emphasis in original).
2
this contract and retain all sums paid on the purchase price. In the
event default be made in the payment of said promissory note in the
amount of $500,000.00 [sic].
The Jensens executed a warranty deed in favor of the Knudsens on December 26, 2007.
The same day, the Knudsens executed a quit claim deed in favor of the Jensens. These deeds were
delivered to Taney County Title & Escrow, LLC (“Escrow Agent”), to be held in escrow. The
Contract provided that in the event the Knudsens defaulted in the payment of the Note,
or Buyer defaults in his performance of any other obligation on his part to be
performed and Sellers elect to declare this agreement null and void, the Escrow
Agent shall deliver to Sellers the warranty deed and quit claim deed and Sellers
shall be authorized to record the quit claim deed.
On December 26, 2007, the Knudsens also executed a Promissory Note (“the Note”) in the
principal amount of $500,000, at five percent interest. The Note required the Knudsens to begin
paying $2,500 per month on March 1, 2008; $3,000 per month beginning March 1, 2009; and
$3,500 per month beginning March 1, 2010, until March 1, 2013, at which time the remaining
balance on the Note would be due in full. The Note also provided that:
If default be made in the payment of any said monthly installment when due and
such default continues for a period of ten (10) days thereafter, the holders of this
note may, at their option, declare all unpaid indebtedness evidenced by this note
immediately due and payable within ten (10) days thereafter, and thereupon the
undersigned agree to pay all costs of collection including reasonable attorney’s fee.
Any default which continues for a period of more than ten (10) days shall be
assessed a late fee of Twenty-Five Dollars ($25.00) per day. Failure at any time to
exercise such option shall not constitute a waiver of the right to exercise it later.
The Knudsens were consistently late in making monthly payments. The Knudsens were
required to begin making payments of $3,000 per month on March 1, 2009, but were unable to
begin doing so until August 2009. On April 26, 2010, the Jensens sent a letter to the Knudsens
“encouraging [them] to keep the payments up so [they] wouldn’t be late[.] The letter also
3
purported to state that the Jensens had “designed this agreement for the [Knudsens] to build
equity.” 2
The Knudsens attempted to refinance the loan, as required by the Note, but were
unsuccessful in part due to a January 27, 2014 appraisal valuing the Property at $340,000 (the
balance of the Note on March 1, 2013, was approximately $401,000). The Knudsens received a
loan offer for $330,000, and an offer from the Jensens to finance the difference between the bank
loan and the balance of the Note, but they did not refinance.
On April 15, 2014, a second letter was sent to the Knudsens advising that they were in
default of the Note and the total balance due and owing was $401,000. In the letter, the Jensens
claimed that the low appraisal on the Property was due to the Knudsens’ failure to maintain the
Property as evidenced by the appraiser’s comments that 20 items needed repair, and that these
repairs were “typical deferred maintenance.” The letter concluded that the Knudsens were
“technically in default” and the Jensens “could take back the house; and you’d still have to pay the
balance.” 3
2
This letter was entered in evidence as Exhibit 103, and Richard Jensen testified to its content at trial. Exhibit 103
was not deposited with this Court as part of the record on appeal. As a result, we are not in possession of that exhibit,
and cannot properly consider it for purposes of our review. Accordingly, we only reference Richard Jensens’
testimony at trial. The other 20 exhibits entered in evidence at trial were also not deposited with this Court, as allowed
by Missouri Court Rule 30.05 and Rule 4 of the Southern District Special Rules. When an exhibit is omitted from the
record on appeal and is not deposited with the appellate court, “its intendment and content will be taken as favorable
to the trial court’s ruling and as unfavorable to the appellant.” State v. Hawkins, 328 S.W.3d 799, 810 n.3 (Mo.App.
S.D. 2010) (internal quotation and citation omitted).
All rule references are to Missouri Court Rules (2019).
3
This letter was entered into evidence as Exhibit 104, and was (like other exhibits) not deposited with this Court. This
Court relies on Richard Jensens’ testimony at trial for purposes of Exhibit 104 and its impact.
4
The Knudsens vacated the Property in 2014, but leased the Property to friends until October
2016. The Property then sat vacant, and the Knudsens made no further payments after September
2016. As of October 1, 2016, the Jensens claimed the Knudsens had paid a total of $367,000,
purportedly leaving a balance due on the Note of $112,510.09.
On December 22, 2016, a third letter was sent to the Knudsens notifying them they were
in default, and that the March 2, 2013 balloon payment was still due and owing.
On March 30, 2017, the Jensens’ attorney requested that the Knudsens return the keys to
the Property by leaving the keys with a local realtor, which they did.
Thereafter, the Jensens attempted to sell the Property, but received no serious offers. The
Jensens asserted they expended $41,544.89 in necessary repairs to the Property due to the
Knudsens failure to maintain it, including a drainage problem in the backyard affecting the
in-ground swimming pool. Kevin Knudsen asserted he and his wife also made improvements to
the Property, including addressing the drainage problem in the backyard, which existed at the time
they purchased the Property.
The Jensens ultimately found a buyer for the Property, but Escrow Agent required the
Jensens to clear up title to the Property by having the Knudsens release the existing 2007 quit claim
deed and sign a new quit claim deed. Thereafter, the Jensens asked the Knudsens to release the
quit claim deed and to sign a new deed. After consulting their attorney, the Knudsens advised the
Jensens they would not release or execute a new quit claim deed unless they were released from
all financial obligations to the Jensens regarding the Property.
On May 24, 2018, the Jensens requested that Escrow Agent deliver the deeds to them, but
Escrow Agent refused, citing concerns of possible legal repercussions by the Knudsens. Instead,
on May 31, 2018, Escrow Agent filed an “Interpleader Petition,” requesting the trial court require
5
the Jensens and the Knudsens to submit to the trial court their individual rights to the deeds. The
Jensens filed their answer, including a three-count crossclaim against the Knudsens for breach of
contract (Count I), quiet title (Count II), and negligence (Count III). The Knudsens filed an answer
and a counterclaim against the Jensens for the value conferred upon the Jensens in excess of the
amount contracted for by the parties. The Jensens also filed a “Motion for a Temporary
Restraining Order, Preliminary and Permanent Injunctive Relief” seeking a “preliminary and
permanent mandatory injunction” ordering Escrow Agent to deliver the deeds to the Jensens.
On June 4, 2018, by order of the trial court, Escrow Agent deposited the relevant deeds
with the Taney County Clerk’s office. Escrow Agent then filed a “Motion for Discharge of
Interpleader.” On July 15, 2018, after hearing argument, the trial court discharged Escrow Agent
from any further liability and duties under the Contract.
On August 3, 2018, an “Interlocutory Judgment” was entered wherein the title to the
Property was quieted in favor of the Jensens, with the Knudsens’ agreement that the Jensens could
sell the Property to a third party. The trial court terminated any ownership rights the Knudsens
may have had to the Property under the Contract. The trial court further found that the only
remaining issues between the parties were the claims for monetary damages. The Jensens were
able to close on the sale of the Property for $327,022.
On September 5, 2018, the Jensens filed a “First Amended Crossclaim.” The Jensens
sought the unpaid balance of the Note, unpaid interest, late fees, prejudgment interest, and
damages, in the total amount of $234,863.48, plus attorney fees.
A bench trial commenced on April 3, 2019, where Richard Jensen and Kevin Knudsen
testified. Testimony and evidence was adduced regarding the facts and circumstances leading up
6
to the cancellation of the Contract, and the ultimate cancellation itself. 4 Richard Jensen admitted
that “at the end of the day, [we] got the warranty deed, [we] got the quit claim deed, . . . and [we]
got the [Property]”; and that there was nothing in the Contract or the Note that provided the Jensens
could regain possession of the Property, as well as collect the unpaid balance on the Note.
On May 1, 2019, the trial court entered its “Order and Judgment of the Court” finding in
favor of the Knudsens on their crossclaim. The trial court found in relevant part:
1. The Contract for Deed (Jensens’ Exhibit 1) and Promissory Note (Jensens’
Exhibits 2 and 2a) in question were negotiated and made between the parties
whereby Jensens would sell a home located at 127 Western Avenue, in
Branson, Taney County, Missouri, to the Knudsens. This agreement was
entered into in late 2007 - at, or near, the peak values of the U.S. real estate
market. This may have worked to the detriment of the Knudsens, but was
not due to any malicious intent on the part of the Jensens.
2. The Knudsens defaulted on the Contract for Deed and Promissory Note,
permitting the Jensens to elect to cancel the contract and take immediate
possession of said premises. The Jensens did elect to cancel the contract
and requested the release of the previously executed quitclaim deed held in
escrow by Plaintiff Taney County Title & Escrow, LLC. Knudsens
objected to Plaintiff releasing said quitclaim deed, prompting Plaintiff to
file its Interpleader Petition, on or about May 31, 2018. On August 3, 2018,
and [sic] Interlocutory Judgment was entered in the Circuit Court of Taney
County, in this case, returning ownership of said premises to Jensens.
3. Pursuant to the parties’ negotiated Contract for Deed, the Jensens elected to
cancel the agreement and to “retain all sums paid on the purchase price” by
the Knudsens (Exhibit 1, paragraph 2B). The Jensens then sold said
premises to another buyer.
4
Richard Jensen testified to that issue as follows:
Q You declared – we’ve already seen . . . Exhibit 6[,] [the December 22, 2016 letter], when
you declared that [the Knudsens were] in default, right?
A Yes.
Q And you elected to take the house back, correct?
A Yes.
Q And declare this agreement null and void, what does that term mean to you?
A That [the Knudsens] failed on the contract, defaulted on it. And we took back the house,
and then tried to sell it[.]
Q And under paragraph eight of [the Contract,] you elected to declare it null and void and
take the house back, right?
A Yes.
7
4. In Count I, the Jensens seek to collect from the Knudsens the remaining
money due under the parties’ negotiated Promissory Note. The Jensens
proposed the Contract for Deed and Promissory Note transaction that
occurred between the Jensens and the Knudsens, and Mrs. Jensen is a
licensed Realtor in both Missouri and Kansas. In said Contract for Deed,
there is a clause setting-forth that- [sic] in the event of default by the
Knudsens - the Jensens will be able to declare the contract cancelled and
“retain all sums paid on the purchase price.” This is customary in Contract
for Deed scenarios, and has been upheld and enforced by Missouri’s Courts.
What is also customary in a scenario where seller cancels the contract upon
buyer’s default, is that seller forfeits his/her right to collect unpaid sums
under the Promissory Note. In the case before this Court, neither the
Jensens nor the Knudsens included language in the Contract for Deed that
put the Knudsens on notice that the Jensens might be able to both cancel the
contract and retain all sums paid on the purchase price, and also seek to
collect the full value of the Promissory Note. Similarly, neither party
included that language putting a trier-of-fact on notice that it was the
intention of the parties at the time of the creation or execution of the
Contract for Deed that the Jensens would be able to both cancel the contract
and retain all sums paid on the purchase price, as well as seek to collect the
full value of the Promissory Note. Therefore, this Court finds that the
Jensens can enjoy the benefit of the express terms of their Contract for Deed
by retaining all sums paid by the Knudsens on the purchase price, but the
Jensens will not be permitted to also receive the full value of the terms of
their Promissory Note. In Count I of Jensens’ Crossclaim against the
Knudsens, the Court finds in favor of the Knudsens.
5. In Count II, the Jensens seek judgment for damages against the Knudsens
for waste. Claims for waste may succeed against any tenant for life, or a
term of years. In the case before this Court, the Knudsens were purchasers
of the property and held an equitable interest. The Knudsens were not
tenants. Therefore Jensens’ claim for waste must fail. In Count II of
Jensens’ Crossclaim against the Knudsens, the Court finds in favor of the
Knudsens.
6. Both parties have made claims under the Count I for their respective
attorney’s fees. Because the Knudsens prevail against the Jensens in Count
I of Jensens’ Petition, the Court has considered the Knudsens’ claim for
attorney’s fees. The Court denies Knudsens’ claim for attorney’s fees,
because - according to the evidence presented in trial - the Knudsens
initially refused to allow Plaintiff Taney County Title & Escrow, LLC, to
release the quitclaim deed to the premises that was being held in escrow by
Plaintiff. Although the quitclaim deed was released prior to the trial on
Counts I and II of the Jensens’ Crossclaim, the Knudsens’ initial refusal to
consent to the release of the quitclaim deed necessitated the Plaintiffs filing
8
of this case. The Court finds it would be unjust to award either party their
respective attorney’s fees.
(Emphasis in original). This appeal followed.
In four points relied, the Jensens assert the trial court erred in:
First Point Relied On. The trial court erred in granting judgment for
Respondents, because the trial court erroneously granted judgment on an unpled
affirmative defense, in that Respondents failed to raise termination/cancellation of
the contract as an affirmative defense, which is a mandatory affirmative defense in
a deficiency action concerning a contract for deed.
Second Point Relied On. The trial court erred in granting judgment for
Respondents, because the trial court, despite the fact that the parties’ agreements
were fully integrated, impermissibly rewrote the Contract for Deed and limited
Appellants’ remedies, in that neither the Contract for Deed nor the Promissory
Note, which are fully integrated agreements, limit Appellants’ recovery to retaining
Respondents’ prior Promissory Note payments as liquidated damages and
reclaiming the Property.
Third Point Relied On. The trial court erred in granting judgment for
Respondents, because the trial court improperly relied on non-existent Contract for
Deed provisions, in that even if such phantom provisions existed, Respondents
repudiated the Contract for Deed when they abandoned the House and waived any
rights to enforce the agreement.
Fourth Point Relied On. The trial court erred in ruling for Respondents on
Appellants’ claim for waste, because the trial court misapplied the law concerning
recovery for waste, in that damages for waste are available when the defendant has
less than the fee simple title to property and Respondents had only an equitable
interest in the Property.
Standard of Review
In a bench-tried case, we will affirm the judgment of the trial court unless appellant
demonstrates that the trial court’s judgment is not supported by substantial evidence, is against the
weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d
30, 32 (Mo. banc 1976).
When evidence is contested by disputing a fact in any manner, this Court
defers to the trial court’s determination of credibility. A trial court is free to
disbelieve any, all, or none of that evidence. Appellate courts defer to the trial court
9
on factual issues because it is in a better position not only to judge the credibility
of witnesses and the persons directly, but also their sincerity and character and other
trial intangibles which may not be completely revealed by the record. The appellate
court’s role is not to re-evaluate testimony through its own perspective.
White v. Dir. of Revenue, 321 S.W.3d 298, 308–09 (Mo. banc 2010) (internal quotations and
citations omitted). We will affirm “the trial court’s judgment . . . on any basis supported by the
record.” Nail v. Husch Blackwell Sanders, LLP, 436 S.W.3d 556, 561 (Mo. banc 2014). 5
Analysis
Points I, II & III
The Jensens’ first, second, and third points all challenge the trial court’s rejection of their
deficiency claim. All three arguments share the same dispositive flaw—as such, we combine these
points for ease of analysis.
The Jensens’ first point claims that the trial court erred in rejecting their deficiency claim
because the Knudsens “failed to raise termination/cancellation of the contract as an affirmative
defense,” and that such affirmative defense was therefore waived. We are not persuaded.
The trial court made the following findings (as relevant here):
2. The Knudsens defaulted on the Contract for Deed and Promissory Note,
permitting the Jensens to elect to cancel the contract and take immediate
possession of said premises. The Jensens did elect to cancel the contract
and requested the release of the previously executed quitclaim deed held in
escrow by Plaintiff Taney County Title & Escrow, LLC. Knudsens
objected to Plaintiff releasing said quitclaim deed, prompting Plaintiff to
file its Interpleader Petition, on or about May 31, 2018. On August 3, 2018,
and [sic] interlocutory Judgment was entered in the Circuit Court of Taney
County, in this case, returning ownership of said premises to Jensens.
3. Pursuant to the parties’ negotiated Contract for Deed, the Jensens elected to
cancel the agreement and to “retain all sums paid on the purchase price” by
the Knudsens . . . . The Jensens then sold said premises to another buyer.
5
The “inherent power of the circuit court [is] to adjust equities between the parties without rigid adherence to any
form and may shape the remedy to meet the demands of justice.” Ryan v. Spiegelhalter, 64 S.W.3d 302, 306 (Mo.
banc 2002) (treating challenge to an alleged breach of contract for deed).
10
4. . . . . In the case before this Court, neither the Jensens nor the Knudsens
included language in the Contract for Deed that put the Knudsens on notice
that the Jensens might be able to both cancel the contract and retain all sums
paid on the purchase price, and also seek to collect the full value of the
Promissory Note. Similarly, neither party included that language putting a
trier-of-fact on notice that it was the intention of the parties at the time of
the creation or execution of the Contract for Deed that the Jensens would be
able to both cancel the contract and retain all sums paid on the purchase
price, as well as seek to collect the full value of the Promissory Note.
(Emphasis in original).
“The burden of proof rests with the party claiming breach of contract.” Scheck Indus.
Corp. v. Tarlton Corp., 435 S.W.3d 705, 723 (Mo.App. E.D. 2014). 6 As such, the Jensens had the
burden to “establish the existence of a contract, the rights and obligations imposed by the contract,
a breach, and damages.” Id. (emphasis added). The Jensens bore the burden of production and
persuasion as to these issues, including their alleged entitlement to a deficiency award. “The
burden of production is a party’s duty to introduce enough evidence on an issue to have the issue
decided by the fact-finder[.]” White, 321 S.W.3d at 304 (internal quotation and citation omitted).
“The burden of persuasion is defined as a party’s duty to convince the fact-finder to view the facts
in a way that favors that party.” Id. at 305 (internal quotation and citation omitted).
By contrast, “[a]n affirmative defense is a procedural tool that allows the defendant to
defeat or avoid the plaintiff’s cause of action”; it has the effect of “aver[ing] that even if the
allegations of the petition are taken as true, the plaintiff cannot prevail because there are additional
facts that permit the defendant to avoid the legal responsibility alleged.” Morris Branson
6
We observe that the Jensens’ “First Amended CrossClaim Against Defendants Kevin Knudsen and Shannon
Knudsen” does not request damages specifically directed at the full amount of the purchase price—rather, the pleading
merely requests “damages in an amount to be determined at trial, for attorney’s fees, for interest, for costs incurred,
and for such other and further relief that the Court deems just and proper.” To that extent, it is not clear that the
Knudsens would have been put on notice by the Jensens’ pleading that the potential affirmative defense of
“termination/cancellation” was applicable or necessary.
11
Theatre, LLC v. Cindy Lee, LLC, 521 S.W.3d 278, 282 (Mo.App. S.D. 2017) (internal quotations
and citations omitted) (emphasis in original).
The Jensens premise their challenge on the Knudsens’ alleged failure to plead and preserve
the defense of “termination/cancellation,” and direct us to the following language from our recent
opinion in Percy’s High Performance, Inc. v. Krough, 445 S.W.3d 577, 582 (Mo.App. S.D.
2013): “cancellation or termination of a contract is an affirmative defense in an action for breach
of contract. Defendants carry the burden of proof on all affirmative defenses.” Id. (internal
quotation and citation omitted).
This line of argument is unavailing. Percy does not, as the Jensens’ argument implies,
stand for the proposition that the potential existence of an affirmative defense—belonging to the
Knudsens (the defending party)—would relieve the Jensens (the moving party) of their positive
burden of proof, and shift it to the Knudsens as a negative burden of proof. By definition, the party
asserting an affirmative defense depends on facts “additional” to those claimed by the adverse
petitioner. Morris, 521 S.W.3d at 282. The Jensens had the burden of proving their own case (and
they could lose by failing in either their burden of production or persuasion); a successful
affirmative defense by the Knudsens could have still defeated their claim, but the absence of such
defense would not independently satisfy the Jensens’ burden—again, this manner of affirmative
defense refers to facts additional to those necessarily claimed by the Jensens. See id.; White, 321
S.W.3d at 304–05.
In substance, the trial court found that the Jensens failed to meet their burden of proof as
to their right to a deficiency award against the Knudsens. More specifically, the trial court found
that the Contract (relied on by the Jensens in meeting their burden of proof on this issue) did not
contain language granting the Jensens the right to a deficiency award. The Jensens’ allegation as
12
to an unalleged affirmative defense was moot at the time the trial court entered its judgment below,
and is unavailing on appeal. Point I is denied.
In the Jensens’ second point, they argue:
The trial court erred in granting judgment for Respondents, because the trial court, despite
the fact that the parties’ agreements were fully integrated, impermissibly rewrote the
Contract for Deed and limited Appellants’ remedies, in that neither the Contract for Deed
nor the Promissory Note, which are fully integrated agreements, limit Appellants’ recovery
to retaining Respondents’ prior Promissory Note payments as liquidated damages and
reclaiming the Property.
We are not persuaded. If anything, it is the Jensens’ interpretation that would require
rewriting in derogation of the fully integrated contract. The Jensens claim in their brief that “[t]he
Contract is clear: Appellants are entitled to receive full repayment of the Note, including
Respondents’ prior payments and the unpaid balance.” The relevant language in the Contract, on
which the Jensens’ argument exclusively relies, states as follows:
The promissory note shall further provide that if default is made in any installment
payment and such default continues for a period of ten days, then and in that event
the holders of said note shall have the right to declare the unpaid balance
immediately due and payable and if payment of the unpaid balance is not made
within 10 days thereafter, then and in that event Sellers shall have the right to
cancel this contract and retain all sums paid on the purchase price. In the event
default be made in the payment of said promissory note in the amount of
$500,000.00 [sic].
(Emphasis added). Quite simply, this language in no way supports the Jensens’ argument—rather,
it clearly indicates that the Jensens’ remedy was to cancel the Contract, and to keep the money
already paid by the Knudsens at that time. While the Jensens’ argument tries numerous
roundabout tacks in this vein, boiled down, they are all directed at this same unavailing premise.
Further substantive treatment would serve no useful purpose, and we therefore simply reject this
line of argument. The Jensens fail to demonstrate reversible error on this basis in their Point II,
and it is accordingly denied.
13
In their third point, the Jensens make the following argument:
The trial court erred in granting judgment for Respondents, because the trial court
improperly relied on non-existent Contract for Deed provisions, in that even if such
phantom provisions existed, Respondents repudiated the Contract for Deed when
they abandoned the House and waived any rights to enforce the agreement.
In support, the Jensens suggest that the trial court committed reversible error in denying
their claim for a deficiency award in that “the Contract did not limit or preclude [the Jensens’]
claim for deficiency.” Substantively, this reflects yet another attempt to dress the same unavailing
premise rejected in our discussion of the Jensens’ first and second points. The Jensens do not
provide (or attempt to provide) any authority standing for the unarticulated proposition actually
underpinning their argument—i.e., that a seller’s right to a deficiency award should be “read into”
all contract for deed agreements, even where the terms agreed to by the parties do not grant that
remedy. 7
The Jensens also attempt to argue that the Knudsens abandoned the Contract, and how we
should interpret such factual matter as warranting reversal in favor of the Jensens. While the
Jensens fail to accurately designate such in their third point (or argument therein), 8 this
(apparently) reflects an attempt to lodge one or more evidentiary challenges on appeal. These
manner of challenges are governed by Houston v. Crider, 317 S.W.3d 178 (Mo.App. S.D. 2010):
A not-supported-by-substantial-evidence challenge requires completion of three
sequential steps:
(1) identify a challenged factual proposition, the existence of which
is necessary to sustain the judgment;
(2) identify all of the favorable evidence in the record supporting the
existence of that proposition; and,
7
To be clear, our recitation in this instance should not be read as an endorsement thereof.
8
See Missouri Court Rules 84.04(c)&(d) (2019).
14
(3) demonstrate why that favorable evidence, when considered
along with the reasonable inferences drawn from that evidence, does
not have probative force upon the proposition such that the trier of
fact could not reasonably decide the existence of the proposition.
On the other hand, an against-the-weight-of-the-evidence challenge
requires completion of four sequential steps:
(1) identify a challenged factual proposition, the existence of which
is necessary to sustain the judgment;
(2) identify all of the favorable evidence in the record supporting the
existence of that proposition;
(3) identify the evidence in the record contrary to the belief of that
proposition, resolving all conflicts in testimony in accordance with
the trial court’s credibility determinations, whether explicit or
implicit; and,
(4) demonstrate why the favorable evidence, along with the
reasonable inferences drawn from that evidence, is so lacking in
probative value, when considered in the context of the totality of the
evidence, that it fails to induce belief in that proposition.
Id. at 187. The Jensens’ argument does not attempt (or succeed) at conforming to Houston’s
mandatory requirements, rendering the substantive remainder of the Jensens’ argument in Point
III (errantly premised on our acceptance of this evidentiary supposition) “analytically useless and
provid[ing] no support for [their] challenge[.]” O’Gorman & Sandroni, P.C. v. Dodson, 478
S.W.3d 539, 544 (Mo.App. E.D. 2015) (internal quotation and citation omitted).
The Jensens fail to demonstrate reversible error in their Point III, and it is accordingly
denied.
Point IV: Jensens’ Claim for Waste
In the Jensens’ fourth point, they argue:
The trial court erred in ruling for Respondents on Appellants’ claim for waste,
because the trial court misapplied the law concerning recovery for waste, in that
damages for waste are available when the defendant has less than the fee simple
title to property and Respondents had only an equitable interest in the Property.
15
The trial court’s findings as relevant to this claim are as follows:
In Count II, the Jensens seek judgment for damages against the Knudsens for waste.
Claims for waste may succeed against any tenant for life, or a term of years. In the
case before this Court, the Knudsens were purchasers of the property and held an
equitable interest. The Knudsens were not tenants. Therefore Jensens’ claim for
waste must fail. In Count II of Jensens’ Crossclaim against the Knudsens, the Court
finds in favor of the Knudsens.
Neither in their briefing before the trial court, nor in their instant brief on appeal, do the
Jensens provide authority that waste is an available cause of action in Missouri under the instant
circumstances (i.e., a claim for breach of contract for deed). In their brief, the Jensens attempt to
demonstrate the applicable contours of Missouri law by directing this Court to a 1969 Arizona
case, a 1954 Fifth Circuit Court of Appeals case, a 1989 North Dakota case, and a 2013 Vermont
case. The Vermont case—Prue v. Royer, 193 Vt. 267, 67 A.3d 895, 914 (Vt. 2013)—is (perhaps)
closest to applicable, in the respect that the Jensens make reference to Prue’s reliance on Lustig v.
U.M.C. Industries, Inc., 637 S.W.2d 55, 58 (Mo.App. E.D. 1982). 9
However, Lustig is not applicable to the dispositive issue here, and yields no support to the
Jensens’ argument. No Missouri appellate court has relied on Lustig for the principle that waste
is an available cause of action (as here) in an action for breach of contract for deed, and none of
the non-Missouri cases have ever been cited or relied upon by any Missouri court (appellate or
otherwise). “Quite simply, [the Jensens’] argument fails to demonstrate that the trial court
erroneously applied Missouri law such as to prejudice [the Jensens]. It was [the Jensens’] burden
as appellant[s] to so demonstrate, and such burden will not be assumed by the reviewing court.” 10
9
‘“The proper measure of damages in an action for waste is the difference in value of the freehold estate or inheritance
before and after the waste.”’ Prue, 67 A.3d 895 at 914 (quoting Lustig, 637 S.W.2d at 58).
10
We discern at least some statutory treatment on this issue—however, there is no mention (much less analysis) of
such authority in the Jensens’ brief. See, e.g., § 537.430 (“The action may be maintained by one who has the remainder
or reversion in fee simple, after an intervening estate for life or years, and also by one who has a remainder or reversion
for life or years only; and each of them shall recover such damages as it shall appear that he has suffered by the waste
16
Pennington v. Vonier, 589 S.W.3d 734, 739 (Mo.App. S.D. 2019). “[I]t is an appellant’s burden
to dislodge us from the presumption that the outcome below was correct.” Bramer, 553 S.W.3d
at 879 (internal quotation and citation omitted). The Jensens’ Point IV is denied.
The judgment of the trial court is affirmed.
WILLIAM W. FRANCIS, JR., J. – OPINION AUTHOR
GARY W. LYNCH, P.J. – CONCURS
NANCY STEFFEN RAHMEYER, J. – CONCURS
complained of.”); § 537.510 (“An action for waste may be brought against the representatives of a tenant, or, if
instituted in the lifetime of the tenant, it may be revived against his representatives after his death.”); § 537.450 (“If a
tenant of land commit any waste thereon after he has aliened it while he remains in possession, he shall be liable to
the party injured for damages.”); § 537.500 (“If the tenant in possession of any land shall, pending a suit to recover or
charge said land, commit any waste thereon, the court in which the suit may be pending may order a receiver to take
possession of the land.”). All references to statutes are to RSMo 2000, unless otherwise indicated.
17