Estate of Looney, In re, 21978

• Decision Date: 18 September 1998
• Docket Number: No. 21978,21978
• Citation: 975 S.W.2d 508
• Parties: In The ESTATE OF Herbert E. LOONEY, Deceased. Mark D. SHELTON, Plaintiff-Respondent, v. Monica WILLIAMSON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 508

975 S.W.2d 508

In The ESTATE OF Herbert E. LOONEY, Deceased.

Mark D. SHELTON, Plaintiff-Respondent, v. Monica WILLIAMSON, Defendant-Appellant.

No. 21978.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 18, 1998.

Thomas M. Benson, Springfield, for appellant.

Richard L. Schnake, Neale & Newman, L.L.P., Springfield, Walter S. Pettit, Jr., Scott R. Pettit, Pettit & Pettit, Aurora, for respondent.

SHRUM, Presiding Judge.

Mark D. Shelton (Plaintiff) filed a claim in the probate division of the Lawrence County Circuit Court seeking "specific execution of the contract for the sale of real estate" pursuant to § 473.303-310, RSMo 1994. The claim was filed in the Estate of Herbert Looney ("Decedent").

At trial, Plaintiff produced no single written contract, but presented what the court characterized as "extensive memoranda by the deceased [that] sufficiently set forth the terms of the agreement between [Decedent] and Plaintiff, including the parties, subject matter, consideration, price and their mutual promises to satisfy [§ ] 432.010 RSMo." ¹ The court granted Plaintiff's request for specific performance and ordered Monica Williamson, personal representative ("Defendant") to convey the subject real estate once Plaintiff paid the consideration yet due. ² This appeal followed.

Defendant's brief presents six points relied on. First, Defendant charges the "best evidence" rule was violated when exhibits "A" and "B" (the "extensive memoranda" mentioned in the judgment) were admitted. Her second and third points assert that exhibits "A" and "B" were not sufficient to satisfy the statute of frauds requirement of a writing to memorialize the contract. Defendant's fourth point is that the trial court committed reversible error when it admitted parol evidence to prove the contract without first requiring evidence of part performance of the contract. Her fifth point claims that there was insufficient evidence to support a finding of part performance of the contract. Defendant's final point further complains about the sufficiency of the evidence. We affirm in part and reverse in part with directions.

FACTS

Plaintiff's association with Decedent began in the early 1980s. Their relationship included Plaintiff working for Decedent and doing business together.

When Decedent died in February 1996, Austin Barrett was initially appointed personal representative of his estate. Barrett testified that soon after his appointment, Plaintiff called and said that he was "buying the property in the back of [Decedent's] property." When Barrett asked if he had "proof of that," Plaintiff answered that he did and "he [Plaintiff] brought me in the original canceled checks." Plaintiff's original checks were admitted at trial as exhibit "C." They showed monthly payments of $250 by Plaintiff to Decedent from August 1992 through July 1994 and $300 monthly payments from August 1994 through May 1996.

About the time Plaintiff produced his checks, Barrett received a "folder" of papers from Mary Morris (Decedent's mother). At trial, these documents were marked exhibit "A" and put in evidence over Defendant's objection that they violated the best evidence rule.

Barrett testified that Mary Morris had removed the exhibit "A" documents from a filing cabinet in Decedent's house soon after his death. Barrett explained: "[S]he [Mary Morris] ... went over there and felt like it needed to be up to--so nobody would take them ... because I guess she was concerned about ... the other lady that was living there."

The folder (exhibit "A") contains 36 pages. For the most part, the documents are photocopies of the monthly checks shown in exhibit "C." Also, many pages contain Decedent's handwritten notes about why the payments were being made. In part, the notations are original writings, but most are photocopies. Barrett testified: "It appears that [Decedent] had taken one of these [pages that contained handwritten notations] ... and put a check ... with a staple when he was copying it ... each time." Barrett further explained: "I think that's what [Decedent] was trying to do, is make copies of the checks so he'd have it as a receipt for himself that he was paid."

As to the whereabouts of the original exhibit "A" documents, Barrett testified:

"Q. Did you ask her [Mary Morris] where the originals were on these?

"A. No. I didn't ask her that.... That's all she said she had, and that's all she said was there.

....

"Q. And you didn't ask her where the originals were or why these had copies on them?

"A. Well, because I didn't know at the time until [Plaintiff] got ahold of me and said he had the original checks. Since they were copies of checks, I assumed that [Decedent] was making copies of checks, that he [Plaintiff] had the original checks since it was his checking account, and that the copies--you know, [Decedent] was making a copy for himself."

At trial, Plaintiff identified exhibit "B" as "receipts ... [Decedent] gave me [on] the purchase of 80 acres of land." Plaintiff described exhibit "B" as a record of his "transaction" with Decedent concerning the subject real estate. He explained the creation of this record as follows.

Plaintiff personally delivered each payment to Decedent, whereon Decedent would The documents in exhibits "A" and "B" contained various handwritten explanations by Decedent concerning the photocopied checks. For example, on one of the forms repeatedly used by Decedent, he wrote:

give Plaintiff a receipt. Each receipt, however, was for the previous month's payment and consisted of a photocopy of the prior month's check with Decedent's handwritten notations or other materials describing their transaction. Generally, the handwritten notations and other materials (such as real estate tax receipts containing legal descriptions) were also photocopies. Plaintiff testified that it appeared to him that Decedent had established a "matrix" to serve as a receipt and as monthly confirmation of their agreement. Continuing, Plaintiff testified that apparently each time Plaintiff paid Decedent, he (Decedent) put that month's check on the matrix and then made two copies, one for himself and one for Plaintiff. Consequently, exhibits "A" and "B" are identical in many respects.

"Started Aug 1-1992 on land below

....

"land in Rear

"357.00 Per A AT 6% INT."

At the bottom of this particular form, Decedent photocopied two tax receipts containing land descriptions. One receipt describes "59.50 ACRES--S 1/2 SW NE (Ex W 2 rds) & N pt NW SE (Ex W 2 rds) & 6 acres W side NE SE ... Sec ... 31 Twp ... 27 Range ... 28." The other describes "19.73 ACRES--E 1/2 NE NW ... Sec ... 31 Twp.... 27 Range ... 28." Decedent's original signature appears on at least two of these forms.

On another form used by Decedent, he wrote the following above each photocopied check: "Started Aug 1-1992 on 80 acres more or less on the Rear of 140 acres."

After Austin Barrett verified Plaintiff's cancelled checks against the receipts prepared by Decedent, he calculated the balance due on the land. Barrett intended to consummate the sale. However, he resigned as personal representative without closing the land sale with Plaintiff. Defendant was appointed as successor personal representative and this suit followed.

The trial court found that the documents in evidence were sufficient to satisfy all requirements of the statute of frauds and ordered all parties to specifically perform the contract. Defendant appeals from that judgment.

STANDARD OF REVIEW

As in most court-tried civil cases, our review of a specific performance case "is governed by Rule 73.01(c), as construed in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976)." Kackley v. Burtrum, 947 S.W.2d 461, 463 (Mo.App.1997). The trial court's judgment will be affirmed unless the court erroneously declares or applies the law, there is no substantial evidence to support the judgment, or it is against the weight of the evidence. Id. at 463. On appellate review "[i]nferences most favorable to the prevailing party will be drawn." Bayless Building Materials Co. v. Peerless Land Co., 509 S.W.2d 206, 208 (Mo.App.1974).

DISCUSSION AND DECISION

Point I: Alleged Violations of Best Evidence Rule

Defendant's first point charges that the court abused its discretion in admitting exhibits "A" and "B" because the documents in those exhibits were mostly photocopies; consequently, they violated the best evidence rule.

Generally, the terms of a document must be shown by producing the original of the document. Interstate Distrib., Inc. v. Freeman, 904 S.W.2d 481, 484 (Mo.App.1995). "A copy reproduced by a photographic duplicating process is not admissible under the best evidence rule." Id. at 484.

Exceptions to this rule exist, however, and "[s]econdary evidence ... may be admitted if the offering party demonstrates that the primary evidence is lost or destroyed, is outside the jurisdiction, is in the possession or control of an adversary, or is otherwise unavailable or inaccessible." Id. at 484. Moreover, when complaints concerning the " 'best evidence rule' are urged, a trial court's broad discretion is subject to reversal only in cases of clear abuse." Lewis v. Bucyrus-Erie, Inc., 622 S.W.2d 920, 925 (Mo.banc 1981).

Here, Defendant argues that the trial court abused its discretion in admitting exhibits "A" and "B" because no evidence exists to support a finding of any exception to the best evidence rule. Defendant avers that reversal is mandated because the trial court relied heavily on these exhibits in deciding that Plaintiff and Decedent had sufficiently memorialized their contract to take it out of the statute of frauds.

In response, Plaintiff argues, inter alia, that Defendant waived the best evidence objection to the admission of exhibit "B" at trial and cannot make that claim on appeal. We agree.

A party must object at the earliest possible opportunity to opposed evidence to avoid waiver of the objection. Gage...