Davis v. Nelson

• Decision Date: 09 August 1994
• Docket Number: No. 64079,64079
• Parties: Steven DAVIS, et al., Plaintiffs/Respondents, v. Richard T. NELSON, et al., Defendants/Appellants.
• Court: Missouri Court of Appeals

Page 658

880 S.W.2d 658

Steven DAVIS, et al., Plaintiffs/Respondents, v. Richard T. NELSON, et al., Defendants/Appellants.

No. 64079.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 9, 1994.

Terrance J. Good, Nelson G. Wolff, Carolyn M. Kopsky, St. Louis, for appellants.

Louis F. Bonacorsi, Ketrina G. Bakewell, Thomas E. Wack, Peter W. Herzog, III, St. Louis, for respondents.

GRIMM, Presiding Judge.

In this bench trial, plaintiff ¹ sought (1) to compel defendant ² to specifically perform an agreement they made to terminate a condominium agreement and (2) to establish a fee simple ownership of the two condo units. Also, he sought to terminate any interest defendant has in an adjoining lot.

On the other hand, defendant contended the termination would create an illegal subdivision. Further, he sought unlimited access to an expanded driveway and garden on the adjoining lot.

The trial court found for plaintiff. It ordered defendant "to execute the documents necessary to effectuate the termination of any existing condominium plan involving [the two units] and to establish fee simple ownership of [the units] with a party wall and access easement...." Further, it ordered defendant to execute any "required Application for Variance as required by local zoning authorities." Finally, it quieted title to the adjoining lot in plaintiff, "free from and unencumbered by any claim of anyone else as to the unrestricted and unlimited use of the [adjoining lot], particularly Defendant."

Defendant appeals, raising three points. First, he alleges the trial court erred in finding that defendant did not have an easement for the driveway on the adjoining lot. Second, he asserts that the trial court erred in denying his counterclaim based on quantum meruit. Finally, he contends there is no writing sufficient to satisfy the statute of frauds. We affirm the trial court's judgment.

I. Background

A.

We state the facts in a light most favorable to the judgment. In early 1987, Developer executed a declaration of condominium for Bemiston Place Condominium. Two phases were projected, with two units to be built in each phase. However, only the first phase was formalized.

In the first phase, Developer sold the front unit, which faces Bemiston, to plaintiff. He sold the other unit, which is behind, but attached to plaintiff's unit, to defendant. At the time of each sale, Developer represented that the second phase would be completed.

The second phase called for Developer to build a mirror image of these two units on an adjoining lot. A common driveway, including a turn-around area, would provide access from Bemiston to all four units. The phase was not begun.

B.

Both parties experienced construction problems with their units. Further, they became concerned that Developer would not complete the project as planned. For example, he had not removed the house on the adjoining lot, much less commenced construction of the other units.

To remedy these problems with Developer, plaintiff hired an attorney. From about July, 1988, through May, 1989, Attorney conducted numerous discussions with Developer and his lawyer. He offered several proposals in an attempt to induce Developer to complete the second phase, none of which materialized.

In October, 1988, Attorney drafted three documents. They were:

1. Settlement Agreement between plaintiff and Developer to resolve all construction disputes between those two parties.

2. Agreement to Terminate Condominium and Convey Common Elements to be signed by Developer, plaintiff, and defendant. This document provided for the termination of the condominium; however, among other things, it was subject to City of Clayton approval.

3. Party Wall and Access Easement Agreement to be signed by plaintiff and defendant. It recognizes that each party holds fee simple title to their respective properties, and that a party wall separates them.

On October 27, 1988, these three documents were sent to defendant. The transmittal letter pointed out that there was a "six-month delay period before the termination takes effect." This was to guard against the possibility that the City of Clayton would not approve the change. In such a situation, plaintiff and defendant would "be left with a terminated condominium but no fee simple title."

These documents were never executed. Further discussion ensued between Attorney and Developer. In March, 1989, Attorney drafted an amended Settlement Agreement. This proposal permitted Developer to build a single dwelling unit on the adjoining lot. However, it required Developer to build the swimming pool originally called for by the plans, as well as an expanded driveway. Developer was to commence work by July 1 1989, otherwise, plaintiff could exercise an option to purchase the adjoining lot.

On March 16, 1989, defendant wrote a letter to plaintiff. In that letter, reference is made to Developer's proposal of a single-family dwelling on the adjoining lot. More importantly, we note that defendant's letter indicates his preference that the parties "have a simple condominium agreement along the lines you and I discussed."

On March 28, 1989, Attorney sent defendant copies of the proposed settlement agreements with Developer. On March 31, defendant and Attorney discussed the draft documents. Defendant told Attorney that the Party Wall and Access Easement Agreement were "okay as is."

Further, defendant said he no longer preferred a condominium agreement on the two units. Rather, he agreed to the termination of the condominium. Changes in the proposed Agreement to Terminate Condominium and Convey Common Elements were discussed, and defendant indicated a willingness to sign the Agreement.

Also, either in that conversation or another, Attorney told defendant that plaintiff would not proceed to work out the problems with Developer unless the existing condominium arrangement with the parties two units was terminated. Defendant "consistently indicated his agreement to that termination."

On April 6 or 7, 1989, Attorney met with defendant. At that time, all of the documents were discussed. Attorney told defendant that the changes defendant requested would be made. Defendant told Attorney that if those changes were made, "he'd be prepared to sign them and move forward."

Thereafter, the deal with Developer began to change. In late April, some changes were made in the documents. These were sent to defendant. However, Developer again failed to comply.

On May 1, 1989, in an attempt to end negotiations, plaintiff contracted with Developer ³ for the purchase of the adjoining lot for $225,000. This contract contained the following special agreement:

[Developer's] obligation to close hereunder is contingent upon [Developer's] receipt, on or before closing, of a release by [defendant] from any and all liabilities or obligations in respect of the rehabilitation and construction of the property to be conveyed to [plaintiff] hereunder (as part of or in connection with) the condominium project comprising [plaintiff's] property, such release to be mutually satisfactory to [Developer] and [defendant].

By letter dated May 2, 1989, plaintiff advised defendant that he planned to purchase the adjoining lot. Plaintiff currently planned "to clear it and have a vacant lot." Plaintiff told defendant that his purchase was "subject to a release signed by you which only excuses [Developer] from redoing [adjoining lot] but which keeps your other claims available." Plaintiff asked defendant to contact Attorney to make arrangements to sign the release.

On the morning of May 3, 1989, Attorney and defendant had a phone conversation. At that time, Attorney read the driveway turnaround proviso to defendant, which says: "provided further, that the [defendant's] Property driveway turnaround shall not be reduced in size."

Attorney explained to defendant that they were not going to reduce the driveway, that he was going to get six feet. "And the reason [plaintiff was] going to give you six feet is [that plaintiff] has a fifty foot lot with two six foot setbacks on each side of the lot line, so we have very little to work with now." Defendant "indicated to [Attorney] he understood all of that and that was just fine with him." Further, Attorney said no representations were made as to how long the adjoining lot would be kept vacant or whether it would be developed.

That afternoon, Attorney met with defendant. It is unclear where this meeting occurred and exactly who was present. Defendant says plaintiff attended and asked him if he wanted to join him in purchasing this property. Defendant made it clear that he had no interest in paying for half or any part of the adjoining property.

Attorney gave defendant a copy of the release and consent; they "talked about what it said, what its effect was," and that they were going to terminate the condominium agreement. At the conclusion of their meeting, defendant took the release and consent with him. Later that day, defendant and his wife signed the document.

In the document, defendant and his wife released Developer and plaintiff

from any and all liabilities or obligations in respect of the rehabilitation and construction of [adjoining lot] as part of or in connection with the rehabilitation and construction of the condominium project of which [defendant's] property is a part.

[Defendant and his wife] further consents to the sale of the [adjoining lot] and to any resale thereof, to the release of the [adjoining lot] from the lien of the Condominium Declaration, if any, to the demolition of the improvements thereon, to the related clearance and landscaping thereof, and to any future development of the [adjoining lot], whether as an expansion of the Condominium or as a separate development, or both, ... provided further, that the [defendant's] Property driveway turnaround shall not be reduced in size. Accordingly, [defendant and his wife] hereby ... forever...