Ebert v. Ebert

• Decision Date: 08 June 2021
• Docket Number: No. ED 108195,ED 108195
• Citation: 627 S.W.3d 571
• Court: Missouri Court of Appeals
• Parties: Shirley R. EBERT, et al., Respondents/Cross-Appellants, v. Mark R. EBERT and Cindy K. Ebert, Appellants/Cross-Respondents.

627 S.W.3d 571

Shirley R. EBERT, et al., Respondents/Cross-Appellants,

v.Mark R. EBERT and Cindy K. Ebert, Appellants/Cross-Respondents.

No. ED 108195

Missouri Court of Appeals, Eastern District, DIVISION THREE.

FILED: June 8, 2021

For Appellants: Lawrence Wittels, 8151 Clayton Rd., Ste. 201, St. Louis, MO 63117.

For Respondents: Mark D. Pasewark, 711 Old Ballas Rd., Ste. 204, St. Louis, MO 63141, Douglas O. McCloskey, 12015 Manchester Rd., Ste. 185, Des Peres, MO 63131.

KURT S. ODENWALD, Judge

Introduction

This appeal involves various real estate transactions and financial loans made between family members over a period of time. Mark R. ("Mark") and Cindy K. Ebert ("Cindy")¹ appeal from the trial court's judgment following a bench trial arising out of an action by Shirley R. Ebert, individually and as Trustee of the Shirley R. Ebert Revocable Living Trust dated November 20, 2017 (collectively, "Shirley"), to resolve claims surrounding a real estate contract for the purchase of family property and repayment of personal loans. Mark and Cindy raise three points on appeal. Point One alleges the trial court erred in failing to apply a five-year statute of limitations to bar Shirley's breach of contract claims to recover on two loans (the "Flight School Loan" and the "American Heritage Loan," respectively). Point Two claims the trial court erred in holding Cindy liable on any loan-related claims because she was not a party to any loan agreement. Point Three contends the trial court erred in finding the 2002 real estate contract (the "2002 Contract") unenforceable on the grounds that its terms were neither certain nor capable of being made certain. In her sole point on cross-appeal, Shirley argues the trial court erred in not granting an easement by implication because the easement was pleaded and judicially admitted at trial.

Because the Flight School Loan ledger reflects a written promise of indebtedness, bringing it within the ten-year statute of limitations, the trial court did not err, and we deny Point One as to the Flight School Loan. However, the American Heritage Loan calendar entry does not reflect a written promise of indebtedness. For that reason, the trial court erred in not applying the five-year statute of limitations, and we grant Point One as to the American Heritage Loan. Because no legal reason justified holding Cindy liable on the Flight School Loan, we grant Point Two. Because the 2002 Contract did not set forth a certain or sufficiently determinable price term, the contract is unenforceable, and we deny Point Three. Because the record shows the weight of the evidence established an easement by implication, the trial court erred in not granting the easement in Count I, and we grant Shirley's cross-appeal. Accordingly, we reverse the judgment in part and remand for the trial court to enter judgment consistent with this opinion.

Factual and Procedural History

Shirley is Mark's mother. Cindy is Mark's wife and Shirley's daughter-in-law. Mark and Cindy sold Shirley a parcel of approximately thirty-five acres of land (the "Property") located on their property for $56,000.00. This sale was memorialized in a real estate contract (the "1997 Contract").

The 1997 Contract provided for an easement of a roadway and bridge (the "Roadway") for physical and utility access:

[Shirley] has full and unrestricted use of [the Roadway] for access and utility easement[.] [Mark and Cindy] will provide to [Shirley] a full and clear General Warranty Deed to said property.... [a]long with, in writing, an access and utility easement on [the Roadway] for present and all future owners of said [thirty-five] acre parcel."

Mark and Cindy executed a general warranty deed for the Property in 1998. The record suggests that no easement by title was filed. The parties split the costs of constructing the Roadway in order to provide access to Shirley's house across Mark and Cindy's property. Shirley obtained financing from a bank and paid Mark and Cindy the $56,000.00 in full for the Property.

In 2002, Shirley entered into a contract with Mark and Cindy to sell the Property back to them (the "2002 Contract"). Cindy helped prepare the 2002 Contract. The 2002 Contract provided that Shirley would resell the Property to Mark and Cindy for $56,000.00 with a caveat that if Shirley decided to move from the Property, the sale price would be adjusted and finalized if Shirley built improvements on the Property. Mark would pay for the total value of the Property, including the value of the improvements. Specifically, the 2002 Contract provides: "Price of said [P]roperty will be adjusted accordingly if a residence and/or any out buildings are constructed on said [P]roperty and [Shirley] wishes to move[,]" and "[Mark and Cindy] agree to pay in full any remaining balance due to [Shirley] if [Shirley] wishes to move from said residence." Shirley gave Mark and Cindy a general warranty deed to hold, but not record. The 2002 Contract also arranged for Shirley to help Mark and Cindy finance the repurchase. Mark and Cindy executed a deed of trust to Shirley for $56,000.00 and began making payments. Later in 2002, Shirley began to construct a residence on the Property. Over a fifteen-year period, Mark and Cindy paid Shirley $56,000.00.

Shirley decided she wanted to move from the Property in 2017. Shirley informed Mark that the value of the Property with the improvements was assessed at $200,000.00. Mark refused to pay the additional $144,000.00, the difference between the assessed value with improvements and the $56,000.00 value of the land. Shirley had not wanted Mark to file the general warranty deed for the Property, because the 2002 Contract stated that if she built a residence on the Property, the purchase price would be adjusted accordingly. Despite these terms, in 2017, Mark filed the general warranty deed conveying the Property from Shirley to himself and Cindy.

Separate from the real estate transactions, Shirley made two loans to Mark relevant to this appeal: the Flight School Loan, an $80,500 loan to pay for Mark's flight school education, and the American Heritage Loan, a $12,977.56 loan to invest in a foreclosure property. Neither loan was memorialized in a formal written loan agreement. The record contains writings regarding the loans in a handwritten organizer kept by Cindy for Mark. The Flight School Loan is denoted in a ledger specifying the dates and amounts borrowed totaling $80,500.00, beginning April 5, 2010, with Mark and Shirley's initials, and the amount repaid. The American Heritage Loan is denoted in a handwritten calendar entry from the same organizer on January 31, 2009, which is marked: "$12,977.56 American Heritage M.E. S.E."

Following a breakdown of the 2002 Contract regarding the repurchase price of the Property and issues relating to the repayment of the loans, Shirley demanded repayment of the loans and filed the present legal action in February 2018. The amended petition alleges seven counts, some against Mark individually and some against Mark and Cindy jointly. Count I sought an easement by implication for the Roadway described in the 1997 Contract. Count II sought to clarify contractual ambiguities in the 2002 Contract. Count III raised an action to quiet title as to the Property. Counts IV, V, and VI alleged claims against Mark for breach of the 2002 Contract and breaches of the loan agreements. In particular, Count V sought repayment of the American Heritage Loan, and Count VI sought repayment of the Flight School Loan. Finally, Count VII alleged undue influence and unjust enrichment against Mark and Cindy jointly.

The case proceeded to trial. Shirley testified about her continuous use of the Roadway since 1997 and its reasonable necessity to provide her ingress/egress access across Mark and Cindy's property to Hardin Road, which was otherwise blocked by a creek. Shirley submitted into evidence the 1997 Contract discussing the intention to grant an easement for the Roadway, the survey illustrating the Roadway on the Property, and handwritten ledgers showing payments for construction of the Roadway. Shirley read the relevant parts of the 1997 Contract that promised the granting of an easement into evidence. Mark testified that no easement by title was ever filed, that he was not opposed to Shirley using the road as an easement and did not object when the trial court indicated that Shirley had an easement and that the issue of the easement was resolved. The trial court followed Mark's testimony with the following exchange:

Trial Court: Let me ask a couple questions to resolve something that's apparently resolved, then, unless his attorney is going to object. Do you have a problem with the easement being where the road is now located?

Mark: No.

Trial court: So we can resolve that issue.

Following trial, the trial court issued an Amended Judgment² primarily in Shirley's favor. The Amended Judgment found the 2002 Contract overly ambiguous and therefore void and unenforceable. The Amended Judgment did not refer to specific counts in the amended petition, but it awarded monetary judgments related to the Property and the two loans, which will be detailed in the discussion below. The Amended Judgment found insufficient evidence with regard to all other claims for relief.

Mark and Cindy appealed, and Shirley cross-appealed. Shirley has moved to dismiss the appeal for lack of a final judgment, and the motion was taken with the case.

Points on Appeal

Mark and Cindy raise three points on appeal. Point One argues the trial court erred in granting money judgments on the two loans because the statute of limitations barred Shirley's breach of contract claims to recover money on the Flight School Loan in Count VI and the American Heritage Loan in Count V. Point Two maintains the trial court erred in granting judgment against Cindy because no substantial evidence supported the judgment. Point Three contends the trial court erred in declaring the 200...