Bechtle v. Adbar Company
| Decision Date | 04 April 2000 |
| Citation | 14 S.W.3d 725 |
| Parties | (Mo.App. E.D. 2000) . Dr. Richard Bechtle, Respondent, v. Adbar Company, L.C., Appellant Case Number: ED76401 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of the County of St. Louis, Hon. Kenneth M. Romines
Counsel for Appellant: Eugene Portman and Wrenn Terrill Kates
Counsel for Respondent: Jay L. Kanzler and Lisa Anne Houdyshell
Opinion Summary: Adbar Company, L.C. (Purchaser) appeals the entry of summary judgment as to liability only on Dr. Richard Bechtle's (Seller) claim for slander of title.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Division Five Holds: The trial court erred in granting summary judgment on Seller's claim for slander of title. Seller's evidence was insufficient to establish the element of malicious publication as a matter of law.
Opinion Vote: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. Russell, C.J. and Crist, Sr. J., concurs.
Adbar Company, L.C. ("Purchaser") appeals the entry of summary judgment as to liability only on Dr. Richard Bechtle's ("Seller") claim for slander of title.1 We affirm in part and reverse and remand in part.
The facts are essentially undisputed.2 On December 19, 1997, Seller and Purchaser, by its managing partners Keith Barket ("Barket") and Steven Adelman ("Adelman"), entered into a written agreement for the purchase of an office building ("Property") owned by Seller for the price of $450,000.00. This original written agreement provided, in part:
Seller may terminate this Contract if the purchase of the Turley Martin 1031 Exchange property, of which Seller is currently one of the Purchasers becomes void on or before January 2, 1998 and Seller gives written notice of such voiding to [Hilliker Corporation] Purchaser on or before said date at sellers free choice if seller is unsatisfied with the exchange property.
It is undisputed that one of the primary considerations for Seller in entering into this real estate transaction centered on the tax implications resulting therefrom. He was willing to sell the Property if he could find a like-kind property so that he could defer any taxes that might be owed.3 The exchange property that was being considered at that time was the McDonald's restaurant at Westport Plaza in St. Louis County.
Seller exercised his termination right on January 2, 1998. On that same day, however, the parties entered into a subsequent agreement entitled First Amendment to Sale Contract ("First Amendment"). This agreement extended the time for Seller to locate a replacement property, and contained the following language, in relevant part:
In the event that, for any reason, Seller is not able to obtain a binding, legally enforceable contract for acquisition of 1031 Exchange property, which contract and the property, the price, and the terms and conditions must be satisfactory to Seller, in Seller's sole judgment and discretion, on or before January 29, 1998, Seller may, at Seller's option, terminate
the Sale Contract by giving to Purchaser written notice of termination on or before January 29, 1998.
Seller was unable to acquire what he considered to be a satisfactory replacement property and on January 20, 1998, pursuant to the terms of the First Amendment notified Purchaser in writing that he was electing to terminate the agreement. Purchaser does not dispute that it received this notice within the requisite timeframe.
However, on January 30, 1998, Adelman, acting on behalf of Purchaser, recorded a "Notice" with the St. Louis County Recorder of Deeds, which stated, in relevant part:
Pursuant to said Sale Contract, as amended, the undersigned purchaser, Adbar Company, L.C., has the right to acquire fee title to the above described real property.
Seller requested that Purchaser withdraw and release the Notice from the records office, but it refused to do so.
On March 3, 1998, Seller filed a petition alleging Purchaser slandered the title to the Property by filing the Notice, which contained statements that were false at the time they were published, and made with the knowledge that they were false. Seller also sought declaratory judgment as to his right to terminate the sales contract. Purchaser counterclaimed for specific performance of the sales contract, a declaratory judgment, and damages, asserting that Seller had no right to unilaterally terminate the contract due to his breach of the covenant of good faith inherent in the contract, and further asserting that Seller wrongfully, intentionally and fraudulently cancelled the sales contract because he was looking for other buyers for the Property while under contract to Purchaser.
Seller then filed a motion for summary judgment on both counts of his petition, and on all counts of Purchaser's counterclaim. On May 18, 1999, the trial court granted the motion for summary judgment, as to liability only, in favor of Seller and against Purchaser on all counts of both petitions. The trial court certified the judgment as final for purposes of appeal. Purchaser appeals only the trial court's grant of summary judgment on Seller's slander of title claim.
When we consider an appeal from summary judgment, we review the record in a light most favorable to the party against whom the judgment was entered. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). Review is essentially de novo. Id.
The burden of persuasion is on the moving party to demonstrate a lack of genuine factual issues. Strickland v. Taco Bell Corp., 849 S.W.2d 127, 131 (Mo.App. 1993). When a motion for summary judgment is made and supported by a showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or otherwise, shall set forth specific facts showing that there is a...
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