Allison v. Agribank, FCB, 21112
| Decision Date | 21 May 1997 |
| Docket Number | No. 21112,21112 |
| Citation | 949 S.W.2d 182 |
| Parties | Gregory F. ALLISON and Holly D. Allison, Plaintiffs/Appellants, v. AGRIBANK, FCB, Defendant/Respondent. |
| Court | Missouri Court of Appeals |
David T. Hold, Campbell, Holt & McCue, Kansas City, for plaintiffs/appellants.
Mark G. Arnold, St. Louis, for defendant/respondent.
Before BARNEY, P.J., and GARRISON and PREWITT, JJ.
Appellants Gregory F. Allison and Holly D. Allison, husband and wife, (Allisons) appeal from the trial court's order granting summary judgment in favor of Respondent AgriBank, FCB (AgriBank) on the Allisons' claim for breach of a right of first refusal to purchase real property. The Allisons claim five points of trial court error. We find no trial court error. At the time they filed the instant action, the Allisons resided in Hickory County, Missouri, on the real property, consisting of 3,736 acres, that is the subject of this dispute. At all times relevant to this action, the Allisons owned 49% of the shares of stock of Cross Timbers Ranch, Inc., (Cross Timbers) an Arkansas corporation originally known as Allison Brothers, Inc. Gregory Allison was a vice president of Cross Timbers. The owners of the remaining 51% of the shares of stock were Gregory Allison's parents, William Allison and Mallie A. Allison.
The parties herein, together with Gregory Allison's parents, have engaged in protracted litigation, relating to the real property, on and off over the past nine years. To place the instant action in proper perspective it is necessary to recite pertinent facts taken from appellate cases, without specific quotes, previously considered by this Court, to-wit: AgriBank FCB v. Cross Timbers Ranch, Inc., 919 S.W.2d 263 (Mo.App.1996); AgriBank FCB v. Cross Timbers Ranch, Inc., 919 S.W.2d 256 (Mo.App.1996); AgriBank FCB v. Allison, 907 S.W.2d 229 (Mo.App.1995).
AgriBank, successor in interest to The Federal Land Bank of St. Louis, is a Farm Credit Bank, a Federally chartered instrumentality of the United States, originally created by authorization of the Farm Credit Act of 1971 and is a creature of merger, as authorized by § 410 of the Agricultural Credit Act of 1987 (the "Act").
In 1978, Allison Brothers, Inc., and William E. Allison and Mallie A. Allison in their personal capacity, executed a $500,000.00 promissory note to the Federal Land Bank of St. Louis. The note was secured by a deed of trust, with a power of sale provision in the event of default, on the same 3,736 acres of farm property heretofore mentioned.
Cross Timbers suffered financial reverses leading to its default under the note and AgriBank undertook foreclosure proceedings. One day before the foreclosure sale was scheduled, Cross Timbers filed a Chapter 12 Bankruptcy in the United States Bankruptcy Court for the Western District of Missouri. 1 AgriBank obtained relief from the automatic stay provisions of the Bankruptcy Code. Subsequently, Cross Timbers failed in its efforts to obtain confirmation of a reorganization plan in bankruptcy court and on March 9, 1993, the court dismissed the Chapter 12 proceeding.
On the foreclosure date of March 12, 1993, Cross Timbers filed a new Chapter 11 Bankruptcy. The substitute trustee, nevertheless, proceeded to cry the sale and the property was sold to AgriBank for $675,000.00. Thereafter, AgriBank sought approval from the bankruptcy court for its foreclosure sale, to which Cross Timbers filed lengthy objections. After an extensive hearing, the bankruptcy judge affirmed the foreclosure sale in its totality and ordered that AgriBank could proceed with its completion.
On June 16, 1993, a substitute trustee's deed was filed and recorded, conveying title of the property to AgriBank.
In November 1993, Cross Timbers filed a complaint against AgriBank in the United States District Court of Missouri, Western District, seeking to keep AgriBank from selling the property to a third party and requesting an order to require AgriBank to sell the property to Cross Timbers for $522,000.00. The complaint also sought review of the decision of the Farm Credit Administration denying Cross Timber's request to prohibit AgriBank from selling the property to a third party. The request was made on the basis that Cross Timbers had a statutory "right of first refusal" as a former owner of a property which had been foreclosed by a federal lending agency. 2 The United States District Court of Missouri, Western District, denied Cross Timber's requested relief and the judgment was affirmed by the United States Eighth Circuit Court of Appeals.
It was during this course of time that there were failed negotiations between Cross Timbers and AgriBank relating to the leasing of the property to Cross Timbers.
On December 1, 1993, AgriBank made a demand for possession of the property effective December 8, 1993. AgriBank never collected rent from Cross Timbers after foreclosure.
In an unlawful detainer suit commenced December 14, 1993, by AgriBank against Cross Timbers, the latter admitted that it was in constructive possession of the property. 3 Cross Timbers alleged that it was properly in possession pursuant to the terms of an oral lease. AgriBank obtained a favorable jury trial verdict against Cross Timbers, granting AgriBank a right of immediate possession of the property.
In a memorandum in support of its post-trial motion, Cross Timbers asserted that it had orally leased the property from AgriBank in consideration of Cross Timbers' agreement to repair and maintain the property. The memorandum further asserted that:
[I]n reliance on the oral lease agreement kept on farming, maintained the farm property, moved, fixed fences, harvested crops, collected rents, maintained the books and records as requested, and did everything requested by [AgriBank].
The memorandum also asserted that Cross Timbers entered into the alleged lease "acting by its duly authorized officer Greg Allison." The memorandum identified Gregory Allison as the "officer and farm manager" and asserted that "the rent in the form of services was paid" by Cross Timbers.
The trial court entered its judgment in unlawful detainer against Cross Timbers, and on appeal, this Court affirmed the judgment. AgriBank FCB v. Cross Timbers Ranch, Inc., 919 S.W.2d at 262.
AgriBank also filed an unlawful detainer action against the Allisons on March 3, 1994. 4
In that action, Gregory F. Allison filed an affidavit wherein he declared under oath, inter alia, that he was "present on the property only in his capacity as an officer and farm manager" for Cross Timbers, and his wife was "present on the property only in her capacity as his wife and helper." 5
Additionally, in a memorandum filed in opposition to AgriBank's motion for summary judgment, Gregory Allison argued that "Gregory F. Allison and Holly Allison have never had actual possession in their individual right, but have at all times acted as officers and agents of Cross Timbers Ranch, Inc."
The trial court granted summary judgment in favor of AgriBank and the Allisons appealed.
In its opinion, this Court noted that "Defendants' [Gregory F. Allison and Holly Allison] answer admitted that they live in a house on the property in question but that Cross Timbers Ranch, Inc. (CTR) is in possession of the property." AgriBank FCB v. Allison, 907 S.W.2d at 230. This Court's opinion then recited that "Plaintiff's [AgriBank] motion also refers to [Gregory F. Allison's and Holly Allison's] judicial admissions that they occupy the property only as officers and agents of CTR and that they claim no individual interest in the property." Id. However, this Court invalidated the judgment and dismissed the Allisons' appeal because the judgment did not establish the existence of AgriBank's unconditional right to possession of the property, so as to permit issuance and processing of execution without resort to external proof and another hearing. 6 6 Id.
On May 6, 1994, AgriBank filed a petition for injunctive relief against Cross Timbers and the Allisons, together with Gregory Allison's parents, to keep them from harvesting and selling crops growing on the foreclosed property. 7 AgriBank subsequently dismissed this petition, but before doing so, Cross Timbers filed a counterclaim in four counts against AgriBank, seeking a declaratory judgment alleging wrongful foreclosure, cancellation of the substitute trustee's deed, specific performance of a statutory obligation of AgriBank to sell the property to Cross Timbers for $522,000.00, and for compensatory and punitive damages. The trial court granted AgriBank a summary judgment as to all of Cross Timbers' counts and this Court affirmed the judgment.
Within the month after this Court's opinions were handed down in AgriBank FCB v. Cross Timbers Ranch, Inc., 919 S.W.2d 256 (Mo.App.1996) and AgriBank FCB v. Cross Timbers Ranch, Inc., 919 S.W.2d 263 (Mo.App.1996), the Allisons filed the instant action. They sought specific performance, damages and injunctive relief for breach of contract by AgriBank of a private right of first refusal to purchase the real property on the same terms and conditions as offered to a third party.
In their lawsuit, the Allisons allege that on July 8, 1993, AgriBank's agents/representatives, Mike Titus and Steve Smith, entered into an agreement whereby AgriBank promised the Allisons the absolute right to re-purchase the property under the same terms and conditions offered to a third party. The Allisons state that this agreement was reduced to writing by letters issued from agents of AgriBank to them on August 16, 1993, and August 23, 1993, after acknowledging Allisons' attorney's August 13, 1993, letter confirming the agreement.
As consideration for the right of first refusal, the Allisons assert that they have maintained the property, preserved its...
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