Deatherage v. Cleghorn

• Decision Date: 01 October 2003
• Docket Number: No. 25466.,25466.
• Citation: 115 S.W.3d 447
• Parties: Christopher S. DEATHERAGE and Gloria R. Deatherage, Appellants, v. Dorothy J. CLEGHORN, individually, Dorothy J. Cleghorn and Dale Cleghorn, Trustees of Dorothy J. Cleghorn Living Trust, Respondents.
• Court: Missouri Court of Appeals

115 S.W.3d 447

Christopher S. DEATHERAGE and Gloria R. Deatherage, Appellants, v. Dorothy J. CLEGHORN, individually, Dorothy J. Cleghorn and Dale Cleghorn, Trustees of Dorothy J. Cleghorn Living Trust, Respondents.

No. 25466.

Missouri Court of Appeals, Southern District, Division One.

October 1, 2003.

Scott B. Stinson, Mountain Grove, for appellants.

Randy R. Cowherd, Jeffery W. Laney, Haden, Cowherd, Bullock & McGinnis, LLC, Springfield, Daniel P. Wade, Ava, for respondents.

ROBERT S. BARNEY, Presiding Judge.

Christopher S. Deatherage and Gloria R. Deatherage ("Appellants" or "Christopher" and/or "Gloria") appeal from the judgment dismissing their cause of action pursuant to Respondents' "Motion to Dismiss for Res Judicata, Collateral Estoppel, and Splitting Causes of Action," in the second of two lawsuits involving the same subject matter, parties, and privities. Appellants raise four points of trial court error discussed below. We affirm.

The record¹ shows that on December 1, 1998, Appellants and Respondent Dorothy J. Cleghorn ("Dorothy") signed two documents entitled "Lease Agreement" and "Conditions for Contract of Deed" relating to 90 acres of land in Douglas County upon which a house sat ("the 1998 agreement").² Appellants took possession of the land and house, began making improvements to the property, and made payments under the agreement.

According to an affidavit executed on December 31, 2002, by Appellant Christopher, on or about March 8, 1999, some three months after the 1998 agreement, Appellants met with, Dale Cleghorn ("Dale"), Dorothy, and an attorney, Will Fletcher. Attorney Fletcher presented the parties with a deed, deed of trust, and promissory note ("the 1999 agreement").

In his affidavit, Christopher further averred that "Mr. Fletcher explained this would give my wife and I more protection, and would allow us to buy the property instead of leasing it." Christopher added that Attorney Fletcher "explained each document in detail and also the purchase financing arrangements," and the parties agreed to meet at a local bank the following day to have the documents notarized, exchange them, and then have them recorded. Christopher further averred that when the parties met at the bank, he and his wife signed the promissory note and deed of trust.³ However, upon inquiring about the warranty deed, both Dorothy and Dale "told us they had left it at home, but they would sign it and record it the next day." Ultimately, the deed was never recorded or transferred to Appellants.

In a deposition taken on July 26, 2001, Dorothy acknowledged that the Appellants "wanted to get protection from this—for their—this property." She also related that Attorney Fletcher had prepared a warranty deed, a promissory note, and a deed of trust. Dorothy acknowledged receipt of the promissory note and her continued possession of the promissory note. Dorothy further acknowledged the existence of the warranty deed but testified that she had never delivered the warranty deed to Appellants, nor did she record the warranty deed. When asked if she had "give[n] [Appellants] anything whatsoever in exchange for the note", Dorothy replied "I didn't give them anything. I don't know if I did or I didn't."

In his deposition taken on July 26, 2001, Dale acknowledged the parties met in March 1999 with Attorney Fletcher because Appellants "suggested that the papers needed to be redone .... They didn't feel that these papers adequately protected them against my former wife." Dale acknowledged that Attorney Fletcher had prepared a warranty deed and a promissory note but related that his mother, Dorothy, had not delivered the warranty deed to Appellants. Dale related that his mother received the promissory note after Appellants signed it.

The record further shows that some seventeen months later (August 2000) the friendship between the parties became strained due to personal differences between Christopher and Dale. Dorothy informed Appellants that she and Dale had changed their mind about selling the property.⁴

Appellants continued to make payments of $400.00 a month to Dorothy under the 1998 agreement, but Dorothy refused to accept the payments, because Appellants now included the word "payment" on their checks, instead of "rent." In time, Appellants began sending payments to Dorothy's attorney.

With the payment of $400.00 in December 2000, Appellants contended they had satisfied all the conditions for the contract for deed under the 1998 agreement and they had their attorney submit a "contract for deed" to Dorothy for her signature, pursuant to the 1998 agreement. Dorothy refused to sign the contract and continued to insist that Appellants vacate the premise.

On January 4, 2001, Appellants filed their first suit, case number CV0101-5CC based on the terms of the 1998 agreement, against Dorothy, individually, and against Dorothy J. Cleghorn and Dale Cleghorn, as trustees of the Dorothy J. Cleghorn Living Trust ("Respondents").

As ultimately submitted—by way of a "Second Amended Petition" in two counts—Appellants sought a declaratory ruling from the trial court that they were entitled to possession of the land in question because the conditions for the contract for deed were satisfied pursuant to the 1998 agreement. Appellants also asked for an injunction requiring Respondents to execute a contract for deed and, thereafter, a warranty deed, per the terms of the 1998 agreement.

On May 15, 2002, Respondents filed their "Motion for Judgment on the Pleadings." In pertinent, part the motion set out that the December 1, 1998, "oral agreement [was] barred by the statute of frauds and therefore Counts One and Two [of Appellants' Second Amended Petition failed] to state a cause of action."

Five days later, Appellants filed their "Motion to Amend Petition." The docket sheet is devoid of a showing that the motion was ever ruled on by the trial court.⁵ The docket sheet also shows an entry, dated July 19, 2002, to-wit: "Third Amended Petition (Proposed) filed ...." Again, the docket sheet does not show any ruling relating to these pleadings. Despite the fact the "Third Amended Petition" was not presented to the trial court for a ruling, we discuss these pleadings in some detail, because they are germane to the issue of whether Appellants are now precluded from reasserting many of the same claims in the instant litigation.

In Count One of their proposed "Third Amended Petition," Appellants reiterated the facts and the same request for relief as previously set out in Count One of their "Second Amended Petition." Alternatively, they also averred that the two documents in question that had been executed on December 1, 1998, "were sufficient to constitute a binding contract for sale of lands, and they [were] entitled to specific performance ...."

In Count Two of their proposed "Third Amended Petition" entitled "Action for Specific Performance of Oral Contract with Partial Performance (Entered Into Between the Parties on 3/8/1999)," Appellants reiterated their allegations as found in Count One of their "Second Amended Petition."

Count Two also set out, in pertinent part, that: on March 8, 1999, the parties met at Dale's home; that at that time Dale, Dorothy, and Dorothy's attorney, Will Fletcher, were present; and that the parties "entered into an oral contract in order to completely amend and replace the previous contracts [i.e., the 1998 agreement] for sale of the land."

Appellants further alleged in Count Two that Attorney Fletcher had prepared and presented to the parties three documents: (1) a promissory note from Appellants to Dorothy J. Cleghorn in the amount of $86,800.00, being the "balance due under the original contract;" (2) a deed of trust to secure the promissory note; and (3) a warranty deed showing a conveyance of the land in question from Dorothy to Appellants. In this same count, Appellants further pled that pursuant to the new oral agreement the deed was to be "recorded immediately."

Appellants also averred in Count Two that the parties met on the following day, March 9, 1999, and that Appellants "did execute and deliver to [Respondents] the promissory note and deed of trust," which was duly recorded, and despite assurances to the contrary, Respondents refused to sign the warranty deed and have it recorded thereby breaching the terms of their oral contract. Accordingly, Appellants sought specific performance and requested the trial court to order Respondents to execute a warranty deed conveying the real property to Appellants. Alternatively, Appellants sought an order vesting Appellants with title to the real property, subject to the promissory note and deed of trust, and sought a declaration that they were entitled to exclusive possession of the real property.⁶

On July 30, 2002, arguments were heard on Respondents' "Motion for Judgment on the Pleadings."⁷ Then on August 14, 2002, after having previously advised all parties that it was designating Respondents' "Motion for Judgment on the Pleadings" a motion for summary judgment, the trial court sustained Respondents' "Motion for Judgment on the Pleadings," and entered judgment against Appellants on Counts One and Two of their "Second Amended Petition," in case number CV0101-5CC—the first litigation.⁸ No mention was made of Appellants' proposed "Third Amended Petition."

Prior to completion of post-trial proceedings in the first litigation, Appellants, on August 20, 2000, filed their second suit against Respondents in case number CV0102-183CC, the instant litigation.

Boiled down to the essentials, in this second suit Appellants replicated the facts and related pleadings previously set out in their proposed "Third Amended Petition" of their first suit.

Count One of their petition in the second suit sought specific performance of the 1998 agreement; Count Two sought performance of the 1999 agreement; Count Three sought damages for fraud; and Count Four sought...