Brown v. Mickelson

• Decision Date: 27 March 2007
• Docket Number: No. WD 66511.,WD 66511.
• Citation: 220 S.W.3d 442
• Parties: Guy Benny BROWN, Appellant, v. Kent MICKELSON, Cherry Mickelson, Robert Schoenberg, and April Schoenberg, Respondents.
• Court: Missouri Court of Appeals

220 S.W.3d 442

Guy Benny BROWN, Appellant, v. Kent MICKELSON, Cherry Mickelson, Robert Schoenberg, and April Schoenberg, Respondents.

No. WD 66511.

Missouri Court of Appeals, Western District.

March 27, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 1, 2007.

William N. Marshall, III, Kansas City, MO, for appellant.

Charles E. Weedman, Jr., Harrisonville, MO, for respondents.

Before THOMAS H. NEWTON, Presiding Judge, PATRICIA BRECKENRIDGE, Judge and JOSEPH M. ELLIS, Judge.

JOSEPH M. ELLIS, Judge.

Guy Benny Brown appeals from a judgment entered in the Circuit Court of Cass County, denying his petition alleging breach of contract and fraudulent concealment on the part of Kent and Cherry Mickelson and asking the court to quiet title to the property at issue.

Appellant held fee simple title to a piece of property located at 27602 South State Route 2 in Freeman, Missouri. The property was comprised of three separate tracts of land. Appellant purchased the first tract in 1972 and built a house and barn on that property in 1976. He purchased an adjacent two-acre tract of land to the north in the 1980s, and another adjacent 10-acre piece of land to the west in the 1990s.

After the property was scheduled for foreclosure by the holder of the first deed of trust, Appellant approached Kent Mickelson, a real estate broker, and proposed a deal that would allow him to avoid foreclosure and retain a portion of the property. Appellant sought to sell Mickelson and his wife, Cherry, the tract of land containing the home and barn and to retain the remaining land for himself. On July 4, 2003, Appellant and the Mickelsons entered into a contract to convey the property for $251,000. The contract described the property at issue as follows:

Commonly known as 27602 S. St. Rt. 2, consisting of 22 acres M/L¹ of which 12 acres M/L shall be excluded from this contract. The referred to 12 acres to be excluded is the 10 acre parcel that lies on the west side of the property and 2 acres M/L, on the north boundary adjoining the 10 acre parcel, giving access to Hwy # 2.

An addendum was executed providing that the Mickelsons would pay any outstanding property tax on the property and would also pay for a survey to distinguish the northern boundary of the property and to provide a waterline easement for Appellant.

After the lending bank, Citizens Bank of Amsterdam, voiced concerns over the exclusion of the twelve acres, Appellant and the Mickelsons entered into a second addendum on July 13, 2003, which provided, in its entirety:

1. The parcel of property known as 27602 s. st. rt. 2 in the original contract is to be changed to include the entire 22 acres M/L with no exclusions.

2. Buyer agrees to give back to seller 12 acres M/L in the form of a quit claim deed following closing of this contract.

A release agreement was entered into by Appellant, the Mickelsons, and Citizens Bank of Amsterdam on July 14, 2003. In that agreement, the bank released twelve acres more or less from the mortgage but retained an interest in the home, outbuildings, improvements, and ten acres more or less. That same day, Appellant executed a warranty deed conveying the property to the Mickelsons.

After obtaining the property, the Mickelsons sought to quickly sell the tract with the house on it. On July 28, 2003, the Mickelsons entered into a contract with Robert and April Schoenberg to purchase that property for $379,000. That contract described the property as:

Commonly known as 27602 S. St. Rt. 2, consisting of 22 acres M/L, of which 12 acres M/L shall be excluded from the contract. The referred to 12 acres to be excluded is the 10 acre parcel that lies on the west side of the property and 2 acres M/L on the north boundary adjoining the 10 acre parcel, giving access to Hwy # 2.

An addendum was executed that same day providing that a legal survey was required to determine the northern boundary and that the buyers understood that "they are buying an approximate amount of acreage equal to 10 acres more or less."

A survey completed on August 21, 2003, revealed that the overall property was comprised of 20.11 acres, more or less, rather than the twenty-two acres originally thought. The tract that contained the house actually had approximately eight acres rather than ten acres. On August 28, 2003, the Mickelsons conveyed to the Schoenbergs the house, improvements, barn, and ten acres of property by general warranty deed. In so doing, they included approximately 1.89 acres from the west tract. On January 13, 2004, the Mickelsons conveyed the remaining 10.11 acres, more or less, to Appellant by quitclaim deed.

Subsequently, Appellant filed suit against the Mickelsons for breach of contract and fraudulent concealment for failing to convey to him the entire twelve acres set forth in the contract. Appellant further asserted a claim against the Schoenbergs to quiet title to the 1.89 acres in Appellant's favor.

The case was tried to the court. On December 30, 2005, the trial court entered its judgment in favor of the defendants on all counts. Appellant brings eleven points on appeal.

Our review of the trial court's judgment is governed by the standard of review established in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and, therefore, "[w]e will affirm the judgment unless it is against the weight of the evidence, is not supported by substantial evidence, or it erroneously declares or applies the law." SD Invs., Inc. v. Michael-Paul, L.L.C., 90 S.W.3d 75, 81 (Mo.App. W.D.2002). "We view the evidence, and permissible inferences therefrom, in the light most favorable to the trial court's judgment, and we disregard all contrary evidence and inferences." Peet v. Randolph, 157 S.W.3d 360, 363 (Mo.App. E.D.2005). "We defer to the trial court's factual findings, giving due regard to the trial court's opportunity to judge the credibility of the witnesses." Id.

In his first five points, Appellant contends that the trial court erred in finding that the contract provided for the Mickelsons to retain ten acres with Appellant receiving the remainder. Appellant argues that the contract sufficiently described the property that was to be conveyed back to him and that the reference to the overall property containing 22 acres, more or less, was merely descriptive, did not amount to a covenant, and was not of the essence of the contract.

The fundamental problem with Appellant's claims is that they are based upon the erroneous premise that the trial court's judgment rested upon interpretation of the contract. The trial court did not interpret the contract as providing for the Mickelsons to receive ten acres with the remainder being returned to Appellant. The trial court concluded that Appellant and the Mickelsons were mutually mistaken as to the overall acreage involved and that that mistake warranted reformation of the terms of the contract to ensure that the Mickelsons received the full ten acres the parties thought they would be receiving.

Certainly Appellant is correct that "[i]n the construction of contracts for the sale of real estate, as in the construction of deeds, [t]he mention of quantity of acres,² after a certain description of the subject by metes and bounds, or by other known specification, is but a matter of description, and does not amount to any covenant, or afford ground for the breach of any of the usual covenants, though the quantity of acres should fall short of the given amount." Cantrell v. McDonald, 412 S.W.2d 403, 408 (Mo.1967) (internal quotation omitted); see also Arnett v. Venters, 673 S.W.2d 67, 73 (Mo.App. W.D. 1984); Fickbohm v. Schoonover, 453 S.W.2d 1, 5 (Mo.App. S.D.1970). Appellant is equally correct that "`[t]he parol evidence rule bars evidence of prior or contemporaneous oral agreements that vary or contradict the terms of an unambiguous, final, and complete writing, absent fraud, mistake, accident or duress.'" Sherman v. Deihl, 193 S.W.3d 863, 866 (Mo.App. S.D.2006) (quoting Building Erection Servs. Co. v. Plastic Sales Mfg. Co., 163 S.W.3d 472, 479 (Mo.App. W.D. 2005)).

In this case, however, the Mickelsons claimed that a mutual mistake existed as to the acreage of the property involved and that fact was material to the contract. They asserted that Appellant had affirmatively represented to them that the property with the house contained ten acres and that the parties intended for them to receive ten acres of property along with the house. The trial court's judgment was based upon a finding that the parties were, indeed, mutually mistaken as to the acreage of the property and that they intended for the Mickelsons to receive ten acres. On that basis, the trial court concluded that the contract should be reformed.³

"Parol evidence is admissible to show that because of mutual mistake the writing did not reflect the intentions of the parties." Unlimited Equip. Lines, Inc. v. Graphic Arts Centre, Inc., 889 S.W.2d 926, 933 (Mo.App. E.D.1994); see also Morris v. Brown, 941 S.W.2d 835, 840 (Mo.App. W.D.1997). When a party seeks to reform a contract based upon mutual mistake, "parol or extrinsic evidence is admissible to establish the mistake and to show how the writing should be reformed to conform to the parties' intention." Everhart v. Westmoreland, 898 S.W.2d 634, 638 (Mo. App. W.D.1995). "[A] mutual mistake occurs when both parties, at the time of contracting, share a misconception about a basic assumption of vital fact upon which they based their bargain." Alea London Ltd. v. Bono-Soltysiak Enters., 186 S.W.3d 403, 415 (Mo.App. E.D.2006) (internal quotation omitted). "[W]hether parties are laboring under a mutual mistake is normally a question of fact." Id. (internal quotation omitted).

The parol evidence in the record overwhelmingly supports a finding that the parties were indeed mistaken as to the overall acreage contained in the property. The contract expressly states that the property contains...