Asbury v. Crawford Electric Cooperative

• Decision Date: 11 May 2001
• Parties: (Mo.App. S.D. 2001) Mary Asbury, Plaintiff/Appellant v. Crawford Electric Cooperative, Inc., Defendant/Third-Party Plaintiff/Respondent v. Oak Crest Enterprises, Inc., Third-Party Defendant/Respondent. 23806 0
• Court: Missouri Court of Appeals

51 S.W.3d 152 (Mo.App. S.D. 2001)

Mary Asbury, Plaintiff/Appellant v. Crawford Electric Cooperative, Inc., Defendant/Third-Party Plaintiff/Respondent v. Oak Crest Enterprises, Inc., Third-Party Defendant/Respondent.

23806

Missouri Court of Appeals Southern District

05/11/2001

Appeal From: Circuit Court of Crawford County, Hon. J. Max Price

Counsel for Appellant: Stephen K. Paulus

Counsel for Respondent: George M. Johnson

Opinion Summary: None

Prewitt and Rahmeyer, J.J., concur.

Phillip R. Garrison, Judge

Mary Asbury ("Plaintiff") appeals from a judgment entered after trial by the court in a suit she brought against Crawford Electric Cooperative, Inc. ("Coop").¹ The suit involved her attempt to obtain electricity for property she owned in Crawford County.

On September 1, 1995, Plaintiff purchased Lot 23 of Black Briar Hill Subdivision, consisting of a lot with a house that had no electrical service. Plaintiff applied to Coop for electrical service on the same day she purchased the property. In doing so, she signed an "Application for Membership and Service Contract," which provided, inter alia, that Plaintiff "must furnish without cost to the [Coop] the necessary permits, easement, or right of way for the construction and operation of the service extension." At the same time she signed the application, Plaintiff signed an easement in favor of Coop giving it the right to place, construct, operate, repair and maintain an electric transmission or distribution line on her property.

Access to Plaintiff's property is by a road through or adjacent to land owned by Ronald Starbeck ("Starbeck"), Oak Crest Enterprises, Inc. ("Oak Crest"), and several other people who owned property between Plaintiff's land and the nearest location of Coop's lines. Shortly after Plaintiff requested electrical service from Coop, and granted Coop an easement on her property, Coop's representative informed Plaintiff that she would need to get easements in Coop's favor from five intervening property owners. Plaintiff obtained three of those easements for Coop, leaving the Oak Crest and Starbeck properties. Initially there was a discussion about building the line along a road that traversed the Oak Crest property, but in October 1995 Coop wrote Plaintiff informing her that it had obtained an attorney's opinion that Coop had no right to build on the road easement, and that "[h]e did not elaborate on whether or not this could be changed."² Thereafter, Plaintiff had a conversation with Jerry Wellington ("Wellington"), Coop's operations manager, concerning the fact that the telephone company was installing underground telephone lines along the road through the Oak Crest property, and inquiring whether the electric line could be similarly installed.

According to the testimony of both Wellington and Plaintiff, Wellington told Plaintiff that Coop could build the electrical lines underground along the road through Oak Crest. Coop had also learned that Starbeck would grant an easement to it across his land for a payment of $1,000. Wellington told Plaintiff that Coop would provide electrical service to her property if she paid $1,000 to Starbeck for that easement and agreed to pay Coop $6 per foot for running the line under ground past the Oak Crest property. Plaintiff agreed to the terms set by Wellington, but testified that she told Wellington that before she paid Starbeck $1,000 for the easement across his property, she had to be sure that there would not be other problems. Wellington assured her that if she did so, Coop would begin constructing the line nine days later. It is clear that this agreement was entered into by Wellington in his capacity as operations manager of Coop. On November 21, 1995, after being paid $1,000 by Plaintiff, Starbeck signed an easement in favor of Coop at a meeting attended by Starbeck, Plaintiff, a friend of Plaintiff's, Wellington, and a member of Coop's engineering department. A week later, however, Plaintiff was contacted by Wellington and told that Coop was not going to provide electrical service to her property. This determination apparently was made by Coop's general manager when he learned of the arrangement between Plaintiff and Wellington, and concluded that the road in question was not a public road, and that the easement for that way was private and did not provide for the installation of electrical facilities.

Plaintiff subsequently filed suit against Coop in three counts. Count I was based on breach of contract in which Plaintiff alleged that she and Coop had entered into an agreement whereby Coop agreed to furnish electricity to her home on the condition that she obtain an easement from Starbeck; that she did obtain that easement by paying him $1,000 based on the assurances of Coop; that although she had performed all of her obligations under the agreement, Coop had failed to perform its obligations by refusing to provide electricity to her property; and that she had been damaged in that her home had deteriorated without electricity, she had been unable to occupy the property, she had incurred expenses storing furniture and in making trips to the property, and the home on the property had decreased in value. She also alleged that she had no adequate remedy at law, and sought a judgment for damages as well as specific performance of the contract. Count two was in tort based on an alleged statutory duty to provide electrical service pursuant to section 393.130³; and count three was for fraudulent misrepresentation. Coop denied that there was an agreement to provide Plaintiff with electrical service if she paid Starbeck $1,000; it alleged that Plaintiff was contractually bound to obtain all necessary easements to run electricity to her property and that she failed to do so; and it alleged that it had offered to reimburse Plaintiff for the $1,000 she paid to Starbeck. Coop also filed a counterclaim seeking a declaratory judgment and a third-party petition against Oak Crest seeking to condemn an easement across its property at the expense of Plaintiff, alleging that pursuant to her application for membership, she agreed to furnish, without cost to Coop, the necessary easement for the construction and operation of the electrical service to her property. The counterclaim for a declaratory judgment was subsequently dismissed by Coop, and the third-party petition for condemnation was severed from this case.

The trial court found for Coop on Counts II and III of the First Amended Petition.⁴ The court concluded, as to Count I:

With respect to Count I of [Plaintiff's] First Amended Petition, the Court finds that Defendant, [Coop], by its attorneys, has conceded in Court that [Plaintiff] is entitled to recovery (sic) of One Thousand Dollars ($1,000.00).

Therefore, the Court orders the payment of One Thousand Dollars ($1,000.00) from Defendant, [Coop], to [Plaintiff] under Paragraph No. 7 of said Count I. All other issues under said Count I are found in favor of Defendant, [Coop]. ⁵The trial court purported to grant relief under Count I which would imply a finding that a contract did, in fact, exist. It limited that relief, however, to a refund of the $1,000, noting that Coop had conceded that Plaintiff was entitled to that amount. This apparently was in response to Coop's answer to Count I in which it alleged that it had "offered to reimburse Plaintiff in the amount of $1,000.00 to mitigate her circumstances and Plaintiff refused the same." At trial, Coop's attorney also informed the trial court that "[i]n our pleadings we, in effect, confessed judgment for the repayment of the $1,000.00 which [Plaintiff] paid for an easement and we would expect to be subject to repay that if the court finds for us on the specific performance and finds that we do not need to provide the electric service to her." Plaintiff had not requested, however, a return of the $1,000 which was awarded by the trial court.

The standard of review mandated by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), for court-tried cases is applicable in both actions at law and in equity. Roth v. Roth, 571 S.W.2d 659, 664 (Mo.App. St. L. 1978).⁶ In reviewing a court-tried case, we affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law or unless it erroneously applies the law. Farrell v. Denson, 821 S.W.2d 547, 548 (Mo.App. E.D. 1991).

Plaintiff alleges four points of error in this appeal. Since the third and fourth points are dispositive, we need not discuss the other two. In her third and fourth points, Plaintiff contends that the trial court erred in finding that she and Coop did not enter into an enforceable oral agreement, and in not ordering specific performance. She also argues in her fourth point that the trial court erred in not awarding her damages.

Plaintiff relies on what she characterizes as an oral contract entered into with Wellington, in which Coop agreed to furnish electricity to Plaintiff's property if she would obtain an easement from Starbeck by paying him $1,000 and pay $6 per foot for underground lines which Coop would run along the edge of the road through the Oak Crest property.

In Missouri a court will enforce an oral contract if (1) the contract is definite; (2) it is proved as pleaded; (3) it is established by recent, definite conversations; (4) it is fair; (5) the proof leaves no reasonable doubt that the contract was made and full performance, as far as possible, has been had; (6) the performance is referable solely to the contract; (7) the contract is based upon adequate consideration; and (8) a real contract, rather than a mere disposition to agree, is shown. Rohrer v. Rohrer, 731 S.W.2d 883, 884 (Mo.App. E.D. 1987). Parol evidence is admissible to prove the terms of an oral contract. F.C. Preuitt Const. Co., Inc. v. Doty, 536 S.W.2d...