Piazza v. Combs, WD 67116.

Citation226 S.W.3d 211
Decision Date12 June 2007
Docket NumberNo. WD 67116.,WD 67116.
PartiesJohn J. PIAZZA, Jr., Respondent, v. Ralph Patton COMBS, et al.; Rob P. Call, Limited Conservator of the Estate of Ralph Patton Combs, Appellants.
CourtCourt of Appeal of Missouri (US)

Daniel R. Dunham, Columbia, MO, for Appellant, Combs.

George S. Smith, Columbia, MO, for Appellant, Call.

Sherry A. Mariea, Jonathan C. Browning, Co-Counsel, Jefferson City, MO, Stewart M. Stein, Co-Counsel, Cheryl A. Bloethe Linder, Co-Counsel, Kansas City, MO, for Respondent.

Before VICTOR C. HOWARD, C.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.

ROBERT G. ULRICH, Judge.

Ralph Patton Combs and Rob P. Call appeal the judgment of the Howard County Circuit Court ordering specific performance of a contract to sell certain real property to John Piazza. They present three points on appeal. First, they claim the trial court's judgment exceeded its jurisdiction as it went beyond the scope of Mr. Piazza's petition. Second, they assert the trial court erred in not entering judgment consistent with Mr. Combs's testimony. Third, they contend specific performance is barred by the statute of frauds. All three points are denied, and the judgment of the trial court is affirmed.

Facts

On or about August 13, 2006, Ralph Patton Combs and John Piazza entered into a written contract for Mr. Piazza's purchase of approximately 683.71 acres of real property owned by Mr. Combs in Howard County for $1,000,000.00. At Mr. Piazza's suggestion, both parties were represented by legal counsel. Pursuant to the contract, Mr. Piazza deposited earnest money in the sum of $20,000.00 with a title company to be held in escrow until the closing of the contract. Closing of the transaction was set for November 22, 2004. This date was extended by agreement of the parties and in accordance with the terms of the contract to December 22, 2004.

On or about December 16, 2004, Mr. Piazza through counsel requested of Mr. Combs's counsel an additional extension of the December 22, 2004, closing date. This request was denied by e-mail from Mr. Combs's counsel to Mr. Piazza's counsel on or about December 20, 2004. Mr. Piazza contacted Mr. Combs by telephone on December 21, 2004. What occurred during this conversation was disputed at trial.

Mr. Piazza testified that he explained to Mr. Combs that he was ready, willing, and able to close on December 22, 2004, but was requesting an extension to enable him to complete the surveys and secure more favorable financing. According to Mr. Piazza, he and Mr. Combs reached a verbal agreement to extend the closing date of the contract to no later than January 30, 2005. In consideration of the agreement to extend the closing date, Mr. Piazza agreed to deposit an additional $5,000 in escrow with the title company. According to Mr. Piazza, all non-conflicting terms of the written contract were applicable. When Mr. Piazza suggested to Mr. Combs that a written extension should be executed, Mr. Combs was unwilling to execute another contract, stating that he "ain't signing no contract. You have my word. If you can't believe my word, we're not moving forward."

Mr. Combs asserted in his deposition testimony that he did not agree to anything with Mr. Piazza during their conversation on December 21, 2004. Acknowledging that Mr. Piazza requested that the closing date be extended a second time, Mr. Combs claimed he told Mr. Piazza he did not want to sell him the property anymore. He denied agreeing to extend the closing date in exchange for an additional $5,000 being deposited into the escrow account. He further denied telling Mr. Piazza that his word was better than a contract.

On December 21, 2004, Mr. Piazza's counsel informed Mr. Combs's counsel in writing of the terms of the verbal agreement. It stated that the verbal agreement was made to extend the closing date to January 30, 2005, but that Mr. Combs was unwilling to sign additional documentation to that effect. It further stated Mr. Piazza would deposit the additional $5,000 by December 31, 2004. The letter also stated that, in reliance on the verbal agreement, Mr. Piazza declared the written contract void but the non-conflicting terms of the written contract governed the duties and responsibilities of the parties.

Closing did not occur on December 22, 2004. Mr. Piazza deposited an additional $5,000 in the escrow account with the title company on December 30, 2004. In a January 14, 2005, letter, George Smith, an attorney, informed Mr. Combs's counsel that he had been retained by Mr. Combs to represent him with respect to the written contract. In a January 18, 2005, e-mail, Mr. Piazza's counsel informed Mr. Combs's original counsel that the closing was tentatively scheduled for January 28, 2005, at 1:00 p.m. The email requested confirmation of that closing date and time. An employee of Mr. Combs's initial counsel responded to the email, stating that Mr. Combs's initial counsel was out of town. The email further stated: "Please confirm the closing is on Friday, January 28, 2005 at 1 p.m." On January 24, 2005, Mr. Combs's initial counsel advised Mr. Piazza's counsel that he no longer represented Mr. Combs.

The transaction did not close on or before January 30, 2005. On February 11, 2005, Mr. Combs executed a beneficiary deed for the subject real estate to his daughters and grandson. The deed was filed on February 18, 2005.

Mr. Piazza filed a petition seeking specific performance (Count I), damages for nonperformance under the contract (Count II), and damages for breach of the covenant of good faith and fair dealing (Count III) on February 14, 2005. On February 23, 2005, Mr. Combs's grandson, Mr. Call, petitioned for letters of guardianship and conservatorship over Mr. Combs. An amended petition for limited guardianship and limited conservatorship was filed on March 31, 2005. Letters of limited guardianship and limited conservatorship were issued to Mr. Call on April 13, 2005. Mr. Combs and Mr. Call filed their first amended answer on May 20, 2005, asserting denials and affirmative defenses including the statute of frauds. They also asserted a counterclaim for liquidated damages under the written contract.

Trial was had on March 6, 2006, and judgment was entered on April 10, 2006. The trial court found that a verbal contract, as testified to by Mr. Piazza, existed between Mr. Piazza and Mr. Combs. It further found there was no showing that anyone on behalf of Mr. Combs informed Mr. Piazza or his counsel that Mr. Combs had not agreed to the terms of the verbal agreement. The trial court found that Mr. Piazza relied on Mr. Combs's representations and statements in entering into the verbal agreement. Further, Mr. Piazza's actions in pursuance of the contract and verbal agreement constituted acts of partial and substantial performance. Mr. Piazza's actions were material, and to deny him the benefit of the parties' contract and verbal agreement would be unjust. Accordingly, the trial court ordered specific performance of the contract and verbal agreement and denied Mr. Combs and Mr. Call's counterclaim.

Mr. Combs and Mr. Call's timely appeal followed.

Standard of Review

In a court-tried case, "[t]he judgment must be affirmed unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." Hilligardt-Bacich v. Bacich, 174 S.W.3d 11, 14 (Mo. App. E.D.2005)(citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). The evidence and inferences drawn therefrom are viewed in the light most favorable to the judgment, and all contrary evidence is disregarded. Id. Deference is given to the trial court's superior ability to judge witness credibility. Id. "The trial court is free to accept or reject all, part, or none of the testimony of a witness." Id. The trial court's conclusions of law are independently evaluated. Johnson v. Cook, 167 S.W.3d 258, 262 (Mo.App. E.D.2005).

Point I

In their first point, Mr. Combs and Mr. Call argue the trial court erred in ordering specific performance of the original written contract and the verbal agreement to extend its closing date. They claim the trial court's jurisdiction was limited to a determination of whether to enforce the verbal agreement because Mr. Piazza's petition averred that the parties agreed not to close the written contract, declared the written contract void, and made a new verbal agreement. Mr. Combs and Mr. Call state that Mr. Piazza's petition and their answer pertained to the verbal agreement purportedly made in the December 21, 2004, conversation between Mr. Piazza and Mr. Combs. They assert that the trial court's jurisdiction was limited to the verbal agreement, and "[i]n entering its judgment, the trial court erroneously disregarded the pleadings and the trial position taken by [Mr. Piazza] that the contract he sued to enforce is the `Verbal Agreement.'" Mr. Combs and Mr. Call assert that they defended against the action averred in the petition. They focus upon Mr. Piazza's averment that the written contract was void and state that "[r]egardless of the fact that they did or could have defended against specific enforcement of the written contract, [they] only had to defend against the claims stated in the petition." Mr. Combs and Mr. Call contend that the trial court erred in enforcing a contract different from the contract pleaded in the petition. Thus, they maintain the trial court was without jurisdiction to order specific performance of the written contract.

Relevant to this point, Mr. Piazza's petition contained the following averments. He and Mr. Combs entered into a written contract on August 13, 2004; the written contract was referred to as the "Written Agreement" and was attached to the petition as Exhibit B. The closing date was extended once to December 22, 2004, and Mr. Piazza's second request for an extension was denied by Mr. Combs's attorney on December 20, 2004. Mr. Piazza and Mr....

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