Full Opinion (html_with_citations)

                                         In the
                        Missouri Court of Appeals
                                  Western District
NATIONAL HISTORIC SOUL JAZZ       )
BLUES WALKER FOUNDATION,          )
                                  )
            Appellant,            )
                                  )                WD86024
        v.                        )                OPINION FILED:
                                  )                DECEMBER 12, 2023
ALTCAP, A MISSOURI NOT FOR PROFIT )
CORPORATION, ET AL.,              )
                                  )
            Respondents.          )

                Appeal from the Circuit Court of Jackson County, Missouri
                         The Honorable Mark A. Styles, Jr., Judge

               Before Division One: Edward R. Ardini, Jr., Presiding Judge,
                    Anthony Rex Gabbert, Judge, Janet Sutton, Judge

       National Historic Soul Jazz Blues Walker Foundation (“Appellant”) appeals the

circuit court’s judgment which found in favor of Altcap and Ulysses Clayborn, Trustee,

(“Respondent” collectively) on Appellant’s “Verified Petition for Temporary Restraining

Order, Preliminary Injunction, Injunction to Enjoin Unlawful Foreclosure and for Quiet

Title.” Appellant contends the circuit court, 1) erred in ruling that Appellant and her

partner were parties to a Note that was contemporaneously executed with the Deed of

Trust, which related to the Note by direct reference or by implication, and that the two

instruments should be construed together as the entire contract for the loan, because a

promissory note was not executed by the grantor of the Deed of Trust, and 2) erred in
ruling that Appellant and her partner were parties to a Note because Appellant never

executed a promissory note and the lack thereof violates the Statute of Frauds and should

have been fatal to Respondent’s position at trial. We affirm.

                       Background and Procedural Information

       Lisa Walker Yeager is Appellant’s “President” with authority to act on Appellant’s

behalf. On December 26, 2017, Dorothy Estis created Mardi Gras Investment Group,

Inc. (“Mardi Gras”) with the purpose “to buy, sell, rent, rehab, and develop residential

and commercial properties.” AltCap is a lending institution.

       On January 3, 2018, AltCap’s Director of Lending emailed Lisa Yeager and

Dorothy Estis confirming receipt of a loan application “from Mardi Gras Investment

Group, Inc. who is in partnership with National Historic Soul Jazz Blues Walker

Foundation Inc.” and asking them to “send over the remaining items as soon as you can.”

The confirmation letter states that the loan application regards 1600 E 19th Street, Kansas

City, MO 64108 (the “Property”), and the purpose of the loan request was to repair the

facade and walls of the Property.

       On January 4, 2018, a twelve-page “Joint Venture Agreement” was executed

between Appellant, through Lisa Yeager, and Mardi Gras, through Dorothy Estis.

Appellant and Mardi Gras were the only “Members” of the joint venture. The purpose of

the venture was “to preserve our cultural heritage a black national historic treasure to

remove blight in the community by rehabing [sic] this building.” The venture was to

begin January 4, 2018, and continue until the Property was restored. The place of

                                             2
business for the venture was to be located at the Property. Lisa Yeager and Dorothy Estis

were appointed “Managers” of the venture. Authority to bind the venture in contract or in

any third-party business relation was to lie exclusively with the managers, acting jointly.

       Pursuant to the Joint Venture Agreement, Appellant was to control the rehab of the

building, make decisions regarding development, and meet with contractors. Mardi Gras

was to sign all contracts, and all financial obligations were to be paid through Mardi

Gras. Each member contributed to the capital of the venture in cash or property. Mardi

Gras’ capital contribution was: “Financial lending contribution of the rehab/development

of NHSJB Walker Foundation.” Appellant’s capital contribution was: “Property owned

by NHSJB Walker Foundation as collateral for the [] lending purposes. There will be tax

rebates provided for the development.”

       On February 6, 2018, Lisa Yeager emailed AltCap’s Director of Lending with the

subject, “1600 E. 19th Letter for Approval City Planning.” Yeager stated in the body of

the letter that she completed the application for Certificate of Appropriateness that was

approved by the City Planning Office and Preservation Office of Kansas City. Further,

she would be picking up her license/permit to start work. On February 7, 2018, the

Director of Lending responded that the documents had been received, and that the loan

committee would be meeting the following Tuesday “for final review and hopeful

approval.”

       On February 23, 2018, AltCap addressed a letter to Dorothy Estis/Mardi Gras

regarding “Loan Approval.” The letter stated in bold type at the top: “This loan

                                             3
commitment is CONTINGENT on clear and proper title work.” The letter went on to

state that AltCap had approved the loan request and that, based on Estis’s personal credit

history, personal financial statements, and information included in the loan application,

AltCap’s loan approval was subject to several terms and conditions. The loan amount

would be for $50,000 and was “to be used to cover working capital needed to rehab

subject property and getting it ready for rental.” “Collateral” of “First Deed of Trust on

property address: 1600 E. 19th St KCMO 64108” was a required condition. Dorothy Estis

was required to “provide unlimited personal guarantees of the loan.” Dorothy Estis

agreed to the terms and conditions on behalf of Mardi Gras as borrower, and personally

as guarantor.

       On March 7, 2018, Mardi Gras as borrower and Dorothy Estis as guarantor

entered into a “Loan Agreement” with AltCap wherein AltCap agreed to lend $50,000 at

nine percent interest. Collateral for the loan was described as, “Deed of Trust on the real

property which has an address of 1600 E. 19th St, Kansas City, Missouri 64108” and “the

guarantee of Dorothy L. Estis.” Included within the Loan Agreement as remedies for the

borrower’s default was that AltCap could, among other things, take possession of the

collateral, sell or dispose of the collateral pursuant to the law, foreclose on any real or

personal property by strict foreclosure in equity, and pursue any and all other remedies

available under the law to enforce AltCap’s rights. D.B. signed for AltCap as Loan

Administrator.




                                               4
       Under Article 1, Section 1.01 of the Loan Agreement, a promissory note was

stated to be attached as Exhibit “A” and incorporated therein. There was no promissory

note attached. “Exhibit A,” titled “PLEDGE OF PERSONAL PROPERTY AS

COLLATERAL SECURITY,” was attached. It was signed the same day as the Loan

Agreement, March 7, 2018, by Lisa Walker Yeager as “Pledgor” and D.B. as AltCap’s

representative as “Pledgee.” The document states that, for value received, Yeager was

depositing and pledging as collateral, to secure the payment of the business loan issued to

Mardi Gras on March 7, 2018:

       The following personal property (collateral) described as:

              • Property with an Address of 1600 E. 19th St Kansas City, MO
                64108 with a legal description of:

       ALL THAT PART OF THE WEST 62 FEET OF THE SOUTH 20.57 FEET
       OF LOT 5 AND THE WEST 62 FEET OF LOT 7, ELDER’S ADDITION,
       A SUBDIVISION IN KANSAS CITY, JACKSON COUNTY, MISSOURI,
       MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT
       THE SOUTHWEST CORNER OF SAID LOT 7, SAID POINT BEING
       ON THE EAST RIGHT-OF-WAY LINE OF VINE STREET; THENCE
       N02°25’39”E, ALONG SAID EAST RIGHT-OF-WAY LINE, 45.07 FEET
       TO THE NORTHWEST CORNER OF THE SOUTH 20.57 FEET OF
       SAID LOT 5, THENCE, S87°27’10”E, ALONG THE NORTH LINE OF
       THE SOUTH 20.57 FEET OF SAID LOT 5, 22.50 FEET TO THE EAST
       FACE OF A 2-STORY BRICK BUILDING; THENCE S02°48’32”W,
       ALONG THE EAST FACE OF SAID BRICK BUILDING, 45.07 FEET
       TO THE SOUTH LINE OF SAID LOT 7, SAID POINT BEING ON THE
       NORTH RIGHT-OF-WAY LINE OF E. 19TH STREET; THENCE
       N87°27’10”W, ALONG SAID NORTH RIGHT-OF-WAY LINE, 22.20
       FEET TO THE POINT OF BEGINNING, CONTAINING 1,007 SQUARE
       FEET, MORE OF LESS.




                                             5
       Yeager agreed that, in the event of default of payment of the debt or breach of the

pledge agreement, AltCap would have “full rights to foreclose on the pledged collateral

and exercise its rights as a secured party.”

       Despite not being attached as Exhibit A to the Loan Agreement, a promissory note

was contemporaneously (March 7, 2018) signed by Dorothy Estis on behalf of Mardi

Gras as “Borrower” and herself as “Guarantor.” Therein, the two agreed to repay

$50,000 to AltCap at nine percent interest and under the additional terms of the note.

Under the provision “Evidence of Indebtedness,” the promissory note provides that, “The

indebtedness evidenced by this Note is secured by a Deed of Trust (‘Deed of Trust’)

executed the same date as this Note; which Deed of Trust encumbers certain real and

personal property, including improvements, located in Jackson County, Missouri.” In the

event of default, AltCap was authorized to pursue any available remedies, including those

provided in the promissory note or other loan documents. On March 7, 2018, Estis also

signed a separate “Guaranty” to repay the loan.1

       On March 7, 2018, a “Deed of Trust” was signed by Lisa Yeager on behalf of

Appellant as “Grantor.” Therein, Appellant granted Ulysses Clayborn, identified as

“Trustee,” the estate, right, title and interest in the “real estate in Jackson County,


       1
         Lisa Yeager signed an undated “Authorization Agreement for Preauthorized Payments”
on behalf of Mardi Gras allowing AltCap to initiate debit and/or credit entries to/from a specified
bank account. Appellant alleged as a Statement of Uncontroverted Material Fact, and
Respondent agreed, that this authorization represented documentation of the $50,000 loan to
Mardi Gras. Both Dorothy Estis and Lisa Yeager are included as an “Authorized Signer” on the
document.


                                                 6
Missouri” described in attached Exhibit A. Exhibit A provides the legal description of the

Property. The Deed of Trust references the Property as the “Mortgaged Property.”

AltCap is identified as “Lender” and “Grantee” in the Deed of Trust. The Deed of Trust

states that, on that same date, Appellant executed and delivered to Lender a Promissory

Note in the principal amount of $50,000, bearing interest at a rate of nine percent per

annum. The Deed of Trust was to secure payment of the indebtedness represented by the

note and any other indebtedness at any time arising under the Loan Agreement. The

Deed of Trust provides that, if the indebtedness was paid when due and all other

agreements kept, the Deed of Trust would become void and Appellant would be released

by Lender. However, if there was a default in payment of the indebtedness, the Trustee,

at the request of the holder of the indebtedness, would sell the Property under the terms

set forth in the Deed of Trust.

       On March 7, 2018, A “Loan Draw Request” was submitted to AltCap and signed

by Dorothy Estis for the amount of $20,000. On March 15, 2018, a “Loan Draw

Request” was submitted by Dorothy Estis and signed by Lisa Yeager requesting a final

disbursement of $24,474.20. Both disbursements were approved. The paperwork shows

disbursement for the $50,000 loan as follows: $2,135.00 for origination fees and title

work, $20,000.00 for the initial disbursement, $3,390.80 to pay taxes, and $24,474.20 for

the final disbursement.

       On April 26, 2018, Lisa Yeager sent AltCap an email indicating that Yeager had

previously spoken with AltCap regarding the necessity of amending the Deed of Trust to

                                             7
reflect that Mardi Gras, and not Appellant, was the borrower of the loan. On June 1,

2018, Yeager sent another email advising that Appellant was not the borrower and that

AltCap was refusing to correct the Deed of Trust. AltCap responded that legal counsel

was working on the matter and provided contact information to AltCap’s legal counsel.

On February 19, 2019, AltCap’s legal counsel emailed Lisa Yeager and Dorothy Estes

indicating that a Reformation of the Deed of Trust had been prepared and was awaiting

their signatures. The Reformation of the Deed of Trust was attached.

      On September 24, 2019, notice of default was sent by AltCap’s counsel to

Appellant in care of Lisa Yeager. Demand was made for all delinquent payments.

      On November 12, 2019, AltCap’s counsel sent Lisa Yeager’s counsel notice that

AltCap had prepared a Reformation of the Deed of Trust which had been presented to

Yeager but that Yeager had failed to execute. The notice requested assistance in obtaining

the signed Reformation of the Deed of Trust. The letter stated that, if Yeager was

unwilling to execute the Reformation, it would be treated as default under the Deed of

Trust and remedies thereunder would be pursued.

      On March 27, 2020, Notice of Trustee’s Sale was posted by Trustee advising that

on May 7, 2020 at 2:00 p.m., said sale would occur on the front steps of the Jackson

County Courthouse in Kansas City.

      On May 4, 2020, Appellant filed its “Verified Petition for Temporary Restraining

Order, Preliminary Injunction, Injunction to Enjoin Unlawful Foreclosure and for Quiet

Title.” Therein Appellant alleged that it was not a borrower of any funds from

                                            8
Respondent, had not executed a promissory note wherein Respondent was the holder, and

the Deed of Trust was executed by Appellant pursuant to a transaction where certain

documents were executed, but which never occurred or were funded. The petition

alleged that the Deed of Trust secured no promissory note or any other form of debt

between Appellant and Respondent and, therefore, was fatally flawed and of no force or

effect. Further, the Deed of Trust secured nothing at all relating to Appellant.

       In Count 1, Appellant asked for a temporary restraining order enjoining Appellant

from holding the Trustee Sale until issues raised in the petition were resolved. In Count

2, Appellant asked for a preliminary injunction enjoining any trustee’s private foreclosure

sale. In Count 3, Appellant asked for a permanent injunction enjoining Respondent’s

Trustee Sale, alleging there was no promissory note or debt between Appellant and

Respondent, and the Deed of Trust was null and void as it secured no debt between

Appellant and Respondent. In Count 4, Appellant asked the court to “try, ascertain and

determine the estate, title and interest of the parties, [Appellant] and [Respondent] herein,

severally in and to the Property and to define adjudge and order by way of its judgment”

and decree Appellant sole fee simple owner of the Property, free and clear of any Deed of

Trust or any other interest Respondent claimed. Further, that Respondent be forever

enjoined and restrained from asserting, claiming, or setting up any right, title or interest

in and to the Property.

       On May 6, 2020, an “Order Setting Evidentiary Hearing on Motion for TRO and

Pretrial Scheduling Order” was issued by the court. Therein, the court noted a stipulation

                                              9
by the parties to postpone the foreclosure sale until Thursday May 14, 2020. An

evidentiary hearing was scheduled for May 11, 2020.

       On May 11, 2020, Respondent filed “Defendants’ Response in Opposition to

Plaintiff’s Motion for a Temporary Restraining Order and/or Preliminary Injunction.”

Respondent also moved to dismiss Appellant’s case. On May 12, Appellant filed a Reply

to Respondent’s filings.

       On May 14, 2020, the circuit court issued a Temporary Restraining Order, and on

May 26, 2020, the circuit court issued an Amended Temporary Restraining Order

correcting clerical errors within the May 14 order. The order restrained and prohibited

Appellant from pursuing the foreclosure sale of the Property or taking any other steps in

furtherance thereof. The order was to remain in effect for fifteen days unless an

extension was ordered. Stipulations for extensions were agreed upon thereafter.

       On September 1, 2020, Appellant filed a “Motion for Summary Judgment for

Injunctive Relief and Quiet Title.” The uncontroverted material facts set forth the various

documents and correspondence described above.

       On October 6, 2020, Respondent filed a response opposing Appellant’s motion.

Respondent’s uncontroverted material facts described that Dorothy Estis had known Lisa

Walker Yeager for a considerable period of time as they grew up on the same block and

were like sisters. Yeager approached Estis’s mother about becoming a joint venture

partner with Appellant to assist with the renovation and reopening of the building

Appellant owned at 1609 E. 19th Street in Kansas City, Missouri. Yeager advised Estis

                                            10
that she had to obtain a loan to save the building, and needed the loan quickly because the

City of Kansas City was threatening a receivership action if repairs were not immediately

made. Estis’s mother was recovering from cancer and Estis did not think it wise for her

mother to become involved.

       At Yeager’s request, Estis consented to become a joint venture partner, through

Mardi Gras, with Appellant. Yeager prepared the Joint Venture Agreement. Estis spent a

considerable amount of time working with Yeager to obtain a loan from AltCap for

$50,000. Yeager was with Estis at every meeting she had with AltCap. Yeager was

included in a number of emails from AltCap. Yeager was listed on the Pledge of

Property. She was also listed on the Authorization Agreement for Preauthorized

Payments. Yeager was an authorized signature for any checks written on behalf of the

joint venture. It was always Estis’s and Yeager’s intent that Estis would provide a

personal guarantee for repayment of the loan, and Yeager would secure the loan with the

Property as collateral through a Deed of Trust executed by Yeager.

       The discussions Estis had with Yeager caused Estis to believe that Yeager

understood if she did not sign a Deed of Trust pledging the building as collateral, they

would not receive the loan from AltCap that was needed to save it. Yeager obtained

comps to prove the worth of the Property as part of the effort to secure permission from

AltCap to use the Property as collateral for the loan. Part of the AltCap loan was used to

pay back taxes on the Property. The additional money received from the AltCap loan was

used to make repairs on the Property. Estis never profited from the Altcap loan. Estis

                                            11
invested personal proceeds to assist with renovation of the Property and had not received

reimbursement.2

       On May 26, 2021, the court denied Appellant’s motion for summary judgment.

Trial was set for October 19, 2021. Evidence was heard on that date and the court took

the matter under advisement with post-trial briefs requested of the parties.

       On January 20, 2023, the circuit court entered Judgment in favor of Respondent

and against Appellant on all counts. The court found that Appellant entered into a Joint

Venture Agreement with Mardi Gras to renovate and reopen the Property. Further, that

Lisa Yeager, as Appellant’s President, granted a Deed of Trust to AltCap securing a

promissory note in the principal amount of $50,000.00. The court found that, under

Missouri law, joint ventures are governed by rules of partnerships with every partner

being an agent of the partnership for purposes of the business, and that the act of one

partner can bind the partnership. Further, that where the parties to a note

contemporaneously execute another written contract, such as a deed of trust, which is

connected with the note by direct reference or by necessary implication, the two

instruments should be considered together as the entire contract. The court found that the

loan provided by AltCap was secured using the Property as collateral through the Deed of

Trust executed by Lisa Yeager. The court lifted the temporary restraining order, denied


       2
          There is no indication in the record that Appellant responded to Respondent’s material
facts other than to argue that every issue and argument raised by Respondent was an attempt to
distract from the alleged fact that Respondent had no legal basis to foreclose on the Deed of
Trust. As such, Respondent’s material facts are deemed uncontroverted and admitted. Mo. Sup.
Ct. R. 74.04(c)(2).

                                               12
Appellant’s request for a permanent injunction, and denied Appellant’s Application for

Quiet Title.

       This appeal follows.

                                    Standard of Review

            Our standard of review in any court-tried case is set forth in Murphy v. Carron,
536 S.W.2d 30, 32
 (Mo. banc 1976). Schollmeyer v. Schollmeyer,
393 S.W.3d 120, 122

(Mo. App. 2013). We will affirm the circuit court’s judgment unless it is unsupported by

substantial evidence, is against the weight of the evidence, or erroneously declares or

applies the law.
Id. at 122-123
. We view the evidence and all reasonable inferences in the

light most favorable to the court’s judgment.
Id.
 The party challenging the judgment has

the burden of proving error. Beckham v. Beckham,
41 S.W.3d 908, 911
 (Mo. App. 2001).

We apply de novo review to questions of law and give no deference to the trial court’s

conclusions regarding such questions. Pearson v. Koster,
367 S.W.3d 36, 43-44
 (Mo. banc

2012). “In reviewing a court-tried case, this court’s primary concern is with the correctness

of the result, not the route taken by the trial court to reach that result.” Blair v. Blair,
147 S.W.3d 882, 885
 (Mo. App. 2004) (internal quotation marks and citations omitted). “The

trial judge has absolute discretion as to the credibility of witnesses and the weight of their

testimony is a matter for the trial court, and its findings on witness credibility are never

reviewable by the appellate court.”
Id. at 886
 (internal quotation marks and citation

omitted).




                                              13
       We preliminarily note that, some of Appellant’s arguments are founded on the

erroneous premise that the “law of the case” was established when the circuit court ruled

on Appellant’s request for a temporary restraining order. Appellant cites several findings

within the court’s temporary order and suggests that these findings are relevant to and/or

binding on the court’s final judgment. They are not. “Temporary restraining orders and

temporary injunctions merely seek to maintain the status quo between the parties and

therefore are not final judgments on the merits.” Pomirko v. Sayad,
693 S.W.2d 323, 324

(Mo. App. 1985).

       The purpose of a preliminary injunction is merely to preserve the relative
       positions of the parties until a trial on the merits can be held. Given this
       limited purpose, and given the haste that is often necessary if those
       positions are to be preserved, a preliminary injunction is customarily
       granted on the basis of procedures that are less formal and evidence that is
       less complete than in a trial on the merits. A party thus is not required to
       prove his case in full at a preliminary-injunction hearing, and the findings
       of fact and conclusions of law made by a court granting a preliminary
       injunction are not binding at trial on the merits.

Cook v. McElwain,
432 S.W.3d 286, 292-293
 (Mo. App. 2014) (quoting Univ. of Tex. V.

Camenisch,
451 U.S. 390, 395
,
101 S.Ct. 1830
, 68 S.Ed.2d 175 (1981). Consequently,

we review only the circuit court’s final judgment which superseded all preliminary orders

not otherwise expired or resolved.

                                           Point I

       Appellant contends in its first point on appeal that the circuit court erred in ruling

that Appellant and Appellant’s partner were parties to a Note that was contemporaneously

executed with the Deed of Trust, which related to the Note by direct reference or by

                                              14
implication, and that the two instruments should be construed together as the entire

contract for the loan, because a promissory note was not executed by the grantor of the

Deed of Trust. Appellant argues that the Deed of Trust did not secure the $50,000 loan

obtained by Mardi Gras for three reasons: 1) Appellant did not execute a promissory note,

2) Mardi Gras’ Promissory Note and Appellant’s Deed of Trust were not connected by

direct reference or necessary implication, and 3) there was “no evidence that the

Appellant expressed anything to the Respondents concerning the establishment of an

agency between the Appellant and anyone else, for the purpose of taking out a loan.”

       “A note and mortgage, or deed of trust, given to secure it, both executed at one

time, must be construed together.” Richard v. Wells Fargo Bank, N.A.,
418 S.W.3d 468, 473
 (Mo. App. 2013) (internal citations and quotation marks omitted). “By construing

these documents together, courts can ascertain the parties’ intentions.”
Id.

“Contradictions in these documents must be harmonized if reasonably possible.”
Id.

“[W]here the parties to a note contemporaneously execute another written contract, such

as a deed of trust, which is connected with the note by direct reference or by necessary

implication, the two instruments should be considered together as the entire contract.”

Federal Nat. Mortg. Ass’n v. Conover,
428 S.W.3d 661, 667
 (Mo. App. 2014) (internal

quotation marks and citations omitted).

       “A joint venture is a species of partnership.” Johnson v. Pacific Intermountain

Exp. Co.,
662 S.W.2d 237, 241
 (Mo. banc 1983). “The distinction between a joint

venture and a conventional partnership is that the former exists for a particular, defined

                                             15
purpose.”
Id.
 “There is a mutual agency among the venturers for activities within the

scope of the venture, and all have equal right of control.”
Id.
 “Generally, each partner is

at once a principal and an agent of the partnership and the other partners in matters

pertaining to the partnership business.” Baker v. McCue-Moyle Development Co.,
695 S.W.2d 906, 911
 (Mo. App. 1984).

       We find it clear from the record that Mardi Gras’ Promissory Note and Appellant’s

Deed of Trust were connected by direct reference and necessary implication, that

Appellant’s and Mardi Gras’ joint venture to rehab the Property was expressed to the

Respondent, and the fact that the loan was being obtained in pursuit of the joint venture

was expressed to the Respondent as well.

       Appellant does not dispute that it entered into a joint venture with Mardi Gras for

the purpose of rehabilitating the Property. Appellant and Mardi Gras were the only

“members” of the Joint Venture Agreement. The January 4, 2018, Joint Venture

Agreement expressly states under “Capital Contributions” that Appellant’s capital

contribution to the venture would be “PROPERTY OWNED BY [APPELLANT] AS

COLLATERAL FOR THE [] LENDING PURPOSES.” Mardi Gras’ capital contribution

would be “FINANCIAL LENDING CONTRIBUTION OF THE

REHAB/DEVELOPMENT OF [APPELLANT].” Lisa Yeager and Dorothy Estis were

“Managers” of the joint venture. Paragraph 10 of the Joint Venture Agreement under

“Business Management” states:




                                             16
              Within the limits of the Purpose of the Venture and the terms of this
       Agreement, the Managers, acting jointly, will have full authority to bind the
       Members in all matters relating to the direction, control and management of
       the Venture. Conduct and actions of the Managers will be dictated by
       policy and procedure established by the Members. Authority to bind the
       Venture in contract or in any third party business relation lies exclusively
       with the Managers, acting jointly.

The record shows that AltCap was aware of this joint venture when evaluating the loan

for approval as Appellant’s trial evidence included a January 3, 2018, letter from AltCap

wherein AltCap states that it had “received a loan application from [Mardi Gras] who is

in partnership with [Appellant].”

       Marti Gras entered into the Loan Agreement on March 7, 2018. Collateral for the

loan was described as “i) Deed of Trust on the real property which has an address of 1600

E. 19th St, Kansas City, Missouri 64108; and ii) the guarantee of Dorothy L. Estis.”

Exhibit A to the Loan Agreement, titled “PLEDGE OF PERSONAL PROPERTY AS

COLLATERAL SECURITY,” was signed by Lisa Yeager. Real property is described

therein with a property address of 1600 E. 19th St., Kansas City, MO 64108, along with a

legal description of the real estate. No other property is described as being pledged as

collateral. The document states that Yeager “hereby deposits and pledges” the Property to

AltCap “as collateral security to secure the payment of: Business Loan #180097 issued

to Mardi Gras Investment Group Inc on 03/07/2018.” The same AltCap representative

who signed Mardi Gras’ “Loan Agreement” signed the pledge as “Pledgee.”

       The March 7, 2018, Promissory Note signed by Dorothy Estis for Mardi Gras

references Loan Number 180097. The Promissory Note cites “Evidence of Indebtedness”

                                            17
as “a Deed of Trust [] executed the same date as this Note; which Deed of Trust

encumbers certain real and personal property, including improvements, located in

Jackson County, Missouri.”

       The March 7, 2018, Deed of Trust signed by Lisa Yeager states that Appellant

executed and delivered to AltCap a Promissory Note in the principal amount of $50,000,

and the Deed of Trust was given to secure payment of the Note, including “any other

indebtedness at any time arising under the Loan Agreement, all of which, together with

the Note, is herein called the ‘Indebtedness.’”

       While Mardi Gras executed the Promissory note, and not Appellant, it is clear

when reviewing the record and construing the documents together that Mardi Gras and

Appellant held themselves out to AltCap as engaging in the joint venture to renovate the

Property, with a necessity for that renovation being acquisition of the AltCap loan.

Further, that Mardi Gras’ contribution to the joint venture was to obtain the loan through

AltCap and be a personal guarantor on that loan, and Appellant’s contribution to the joint

venture was to provide collateral in the form of a Deed of Trust on the Property so the

loan could be obtained. Appellant produced no other March 7, 2018, $50,000 promissory

note at trial that Appellant was referencing in the Deed of Trust. Appellant, as Plaintiff,

bore the burden of proof and risk of non-persuasion on its Petition for an Injunction to

Enjoin Unlawful Foreclosure and for Quiet Title. Cook,
432 S.W.3d at 292
. Of note,

Appellant stated in pre-trial filings in support of a temporary restraining order and

preliminary injunction that,

                                             18
       Why the Deed of Trust (prepared by AltCap) was placed in front of Lisa
       Yeager and signed by her as an officer of the Foundation during the flurry
       of a rushed closing is an issue to be developed in the trial of this case. It is
       a long story of inaccurate statements made by AltCap as to what a deed of
       trust is – securing personal property.

The record gives no indication that an explanation was ever developed at trial, and

Appellant never alleged that it was fraudulently induced to sign the Deed of Trust. This

statement indicates, nevertheless, that Appellant was actively involved in and present at

the closing for the Mardi Gras loan that was being pursued as part of the joint venture.

       Appellant cites correspondence between Yeager and AltCap that discusses the

Deed of Trust containing an error to argue that AltCap attempted to have the Appellant

agree to a modification of the Deed of Trust because it recognized that Appellant had not

pledged the property as collateral for the loan. Yet, the record shows that Yeager herself

first reached out to AltCap regarding this alleged error, however did not reach out until

after she signed for the second and final draw of $24,474.20 on the loan.3 Yeager’s June

1, 2018, email to AltCap, with the subject line “Modification to Deed of Trust,” begins by

stating: “The complete loan I personally and in writing came in to do a right of recession

[sic] within the time limit. I also received in writing from your staff that it will be

corrected regarding the deeds incorrect wording.” The correspondence goes on to

demand a correction to the Deed of Trust, stating that Yeager might contact the Missouri




       3
         Yeager signed for that draw on March 15, 2018. Yeager’s April 26, 2018, email to
AltCap states that it had been “almost” a month since she first requested the deed be
corrected/amended.

                                              19
Attorney General’s Office if the matter was not corrected immediately in accordance with

the title company’s recommendations. AltCap responded that it had previously discussed

the matter with Yeager on numerous occasions, that everyone agreed the matter needed to

be resolved, and AltCap’s legal counsel was working on it. Contact information for

AltCap’s legal counsel was provided.4

       On February 19, 2019, AltCap’s legal counsel sent Yeager an email advising that it

was the intent of the parties that the Promissory Note for the loan to rehabilitate the

Property would be signed by Estis and secured by the Property. Further, that after

consultation with the title company, a document was prepared to correct the

misstatements on the Deed of Trust, and a Reformation of the Deed of Trust was prepared

for Appellant to execute. The correspondence states that, “the sole purpose of the

document is to correctly set out the intent of AltCap, Estis and the [Appellant] as to this

transaction.”

       Appellant never followed through with obtaining a reformed Deed of Trust despite

requesting one, and we disagree that AltCap’s attempt to correct the Deed of Trust was an

admission that Appellant had not pledged the Property as collateral for the Mardi Gras

loan. Notably, Appellant claimed in its correspondence regarding the Deed of Trust that



       4
          In the light most favorable to the circuit court’s Judgment, it can be reasonably inferred
that this correspondence is actually evidence of Yeager’s personal involvement in the Mardi Gras
loan as it discusses a right of rescission regarding a loan in the same email Yeager states that
Appellant is “not the borrower” and demands the Deed of Trust be modified. Dorothy Estis is
carbon copied on this email.


                                                20
Appellant was not the named “borrower” under the loan, but never claimed that Appellant

did not execute the Deed of Trust and pledge the Property as security for the loan despite

not being the named “borrower.”

       The fact of the matter is that Appellant granted a Deed of Trust for the Property to

AltCap to secure a $50,000 Promissory Note. Therein, Appellant attested that Appellant

executed and delivered a $50,000 Promissory Note to AltCap. The Deed of Trust was

given “to secure payment of any and all … indebtedness represented by the Note, and of

any other indebtedness at any time arising under the Loan Agreement, all of which,

together with the Note, is herein called the ‘Indebtedness.’” Included with the Loan

Agreement as “EXHIBIT A” is a “Pledge of Personal Property as Collateral Security,”

signed by Yeager, wherein she pledges “Property with an Address of 1600 E. 19th St

Kansas City, MO 64108 with a legal description of [legal description provided]” as

“collateral security to secure the payment of … Business Loan #180097 issued to Mardi

Gras Investment Group Inc on 03/07/2018.” EXHIBIT A additionally states that, “In the

event of default of payment of the debt or breach of this pledge agreement, the Pledgee or

holder shall have full rights to foreclose on the pledged collateral and exercise its rights

as a secured party.”

       It can be reasonably inferred that the Deed of Trust is referencing the Loan

Agreement signed by Mardi Gras which contains Lisa Yeager’s pledge of the Property as

collateral for the loan. The Promissory Note signed by Mardi Gras is expressly

incorporated into the Loan Agreement, despite not being attached to the Loan Agreement,

                                              21
as there is no dispute that the March 7, 2018, Promissory Note signed by Mardi Gras is

the Promissory Note referenced in the March 7, 2018, Loan Agreement. The March 7,

2018, Deed of Trust expressly states that it is given to secure payment of the

“Indebtedness,” which includes payment of the Promissory Note, extensions of the Note,

and any other indebtedness at any time arising under the Loan Agreement. As the Loan

Agreement incorporates the Promissory Note and also contains Lisa Yeager’s pledge to

secure the Mardi Gras loan with the Property, and the Deed of Trust references both a

$50,000 Promissory Note and its corresponding Loan Agreement, the Deed of Trust and

Promissory Note are connected by direct reference and/or necessary implication.

       Moreover, Appellant’s joint venture with Mardi Gras expressly sets forth the

arrangement where Mardi Gras would obtain a loan in pursuit of the joint venture and

Appellant would contribute the Property as collateral for that loan in pursuit of the joint

venture. Appellant’s attestation in the Deed of Trust that it granted AltCap the

Promissory Note for the loan can, therefore, be reasonably inferred to represent

Appellant’s acknowledgement that the Property was offered as security in furtherance of

the joint venture.

       The circuit court did not err in concluding that on March 7, 2018, Appellant

granted a Deed of Trust to AltCap securing a promissory note in the principal amount of

$50,000, that Appellant’s joint venture with Mardi Gras was to renovate the Property, that

the Deed of Trust and Promissory Note signed by the joint venturers should be construed




                                             22
together, and that the loan provided by AltCap was secured using the Property as

collateral through the Deed of Trust.

       Appellant’s first point on appeal is denied.

                               Point II – Statute of Frauds

       In Appellant’s second point on appeal, Appellant contends the circuit court erred

in ruling that Appellant and her partner were parties to a Note, arguing that the Appellant

never executed a promissory note and the lack thereof violates the Statute of Frauds and

should have been fatal to Respondent’s position at trial. Appellant argues that, “In this

matter, the Respondent’s interest in the Appellant’s land, as collateral, should have been

recorded in writing—it was not. The Respondent’s knew of this defect but were unable

to cure the same.”

       Pursuant to Missouri’s statute of frauds, Section 432.010, RSMo 2016,

       No action shall be brought … to charge any person upon any special
       promise to answer for the debt, default or miscarriage of another person …
       or upon any contract made for the sale of lands, tenements, hereditaments,
       or an interest in or concerning them, or any lease thereof, for a longer time
       than one year, … unless the agreement upon which the action shall be
       brought, or some memorandum or note thereof, shall be in writing and
       signed by the party to be charged therewith, or some other person by him
       thereto lawfully authorized….

       We find several instances in the record where Respondent’s interest in Appellant’s

land, as collateral, was recorded in writing. The Joint Venture Agreement, signed by

Appellant, obligated the Property as collateral for the loan that would be obtained in

furtherance of the joint venture. That $50,000 loan was obtained by Mardi Gras in


                                             23
furtherance of the joint venture, and the Loan Agreement with AltCap contained a

“Pledge” by Appellant’s president to deposit and pledge the Property as collateral for the

loan. The Pledge states that, in the event of default on the loan, Respondent would have

“full rights to foreclose on the pledged collateral and exercise its rights as a secured

party.” The Deed of Trust given to Respondents by Appellant states that it is to secure

fulfillment of a $50,000 promissory note and other indebtedness under the Loan

Agreement, and if there was a default in payment of the indebtedness, the Trustee could

sell the Mortgaged Property under the terms set forth in the Deed of Trust.

       The circuit court did not err in its Judgment as Respondent’s interest in the

Appellant’s land, as collateral, was recorded in writing and any action taken thereon was

not in violation of the statute of frauds.

       Appellant’s second point on appeal is denied.

                                         Conclusion

       We affirm the circuit court’s judgment.




                                                            _______________________
                                                            Anthony Rex Gabbert, Judge


All concur.




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