Grease Monkey Intern., Inc. v. Godat, 66584

• Decision Date: 05 December 1995
• Docket Number: No. 66584,66584
• Citation: 916 S.W.2d 257
• Parties: GREASE MONKEY INTERNATIONAL, INC., Plaintiff/Appellant, v. David GODAT d/b/a Auto Trim Design, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 257

916 S.W.2d 257

GREASE MONKEY INTERNATIONAL, INC., Plaintiff/Appellant, v. David GODAT d/b/a Auto Trim Design, Defendant/Respondent.

No. 66584.

Missouri Court of Appeals,

Eastern District,

Division Four.

Dec. 5, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 29, 1996.

Application to Transfer Denied

March 26, 1996.

Ziercher & Hocker, P.C., Mark F. Hearne, II, P. Tabot Dyke, Clayton, for plaintiff/appellant.

Becker, Dufour & Yarbrough, Charles F. Dufour, St. Louis, for defendant/respondent.

PUDLOWSKI, Judge.

This is an appeal from a judgment of the circuit court denying appellant's request for specific performance and requiring appellant to pay respondent's attorney's fees pursuant to the terms of the contract entered into by the parties. Appellant argues the trial court erred in: 1) refusing to grant specific performance; 2) awarding attorney's fees based on the provision in the contract and 3) imposing a lien on the property that was the subject matter of the contract. We find the trial court erred in imposing the lien on the property. In all other respects, the trial court's judgment is upheld.

In April 1992, Grease Monkey International Inc. (appellant) and David Godat (respondent) entered into a contract for the sale of property located at 10638 Halls Ferry Road in St. Louis County. The contract contained a financing contingency which stated "This contract is contingent upon the availability to purchaser of financing as set forth below, to be secured by a deed of trust on said property. If the commitment therefore be not obtained by noon of May 22, 1992, this contract shall be null and void and earnest deposit returned to purchaser." The financing contingency also gave respondent the right "To obtain conventional financing on terms and conditions, including interest rate, satisfactory to purchaser in its sole discretion." The contract contained another provision relating to litigation. That clause stated "In the event of any litigation between the parties the prevailing party, in addition to and cumulative with any other right or remedy, shall be entitled to recover its costs incurred in such litigation, including a reasonable attorney's fee."

The sales contract was extended twice, once on May 23, 1992 and again on June 30, 1992. The May 23 agreement extended the dates for financing commitment, closing and environmental property assessment. All other terms remained the same. The June 30 extension waived all of respondent's conditions except the financing contingency and also provided the earnest money deposit would be non-refundable. The June 30 extension set July 9 as the deadline for the financing contingency and closing for July 15. The extension also identified Boatman's Bank as the lender. Boatman's subsequently denied respondent's loan request and respondent applied with Commerce Bank. In an effort to help respondent secure another extension of the contract, the vice president of Commerce Bank sent a letter to appellant's real estate agent on July 9 stating Commerce Bank approved a loan to David Godat for the purchase of the property on Halls Ferry Road. The bank officer testified the letter was not a loan commitment and that he informed appellant's agent a loan commitment would only be issued upon receipt of an appraisal. Respondent's agent testified he informed appellant, through its agent, respondent would not be able to obtain a loan commitment by the July 9 deadline. Appellant's own agent testified the letter from Commerce Bank was not typical of a loan commitment and further, that in her experience, most loan commitments required an appraisal.

After receipt of the letter from Commerce Bank, appellant wrote to respondent's agent stating it understood the bank letter satisfied the financing contingency. Respondent's agent received the letter on July 10. Respondent did not reply but continued to pursue financing.

Appellant refused to grant an extension of the contract when the closing did not occur on July 15, 1992. Instead, it sent a letter to respondent informing him the contract would only be extended if respondent acknowledged the letter of July 9, 1992, satisfied the financing contingency and agreed to make an additional $5,000 non-refundable earnest deposit, which would be forfeited if closing did not occur on the newly proposed date. Appellant also sought an increase in the purchase price of the property. Respondent refused to agree to these additional terms. On September 14, appellant filed this suit seeking specific performance of the original contract. The trial court denied appellant's request for relief because it found the July 9 financing contingency was not fulfilled, thereby, rendering the agreement void under the terms of the contract. It also found specific performance was inappropriate because appellant did not prove it had an interest in the property sufficient to convey title. Title to the property was in Grease Monkey Income Limited Partnership, 1987-I according to the records at the St. Louis County Recorder of Deeds. Appellant alleges this partnership was dissolved and its assets rolled over into Grease Monkey Holding Co., Inc. Appellant, Grease Monkey International, Inc. is a wholly owned subsidiary of the holding company. Based on this relationship appellant alleges it owns the property. The trial court also gave effect to the attorney's fees provision of the contract and awarded respondent costs of approximately $27,000. Respondent filed a motion for additional attorney's fees to cover costs up to and including this appeal.

Appellant raises nine points on appeal. For the sake of clarity some of the points are addressed out of order.

Our review of this court tried case is governed by Rule 73.01 as interpreted by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We affirm the judgment of the trial court unless it is against the weight of the evidence or it erroneously declares or applies the law. Id.

Appellant first argues the trial court erred by adopting respondent's findings of fact and conclusions of law. We disagree. The trial court's adoption of a party's proposed findings of fact and conclusions of law is not per se error. Goad v. State, 839 S.W.2d 749, 751 (Mo.App.1992). As long as there are no inconsistencies between the findings of fact and the actual facts and the legal conclusions are sufficiently specific to permit meaningful review, there is no error. Id. The trial court made a factual finding that appellant did not own the property and found the contract was void pursuant to the terms of the contract. The court then made legal decisions. First, to give effect to the attorney's fee provision of the contract and second to impose a lien on the property. We will discuss the propriety of the court's conclusions but point out there is nothing inconsistent in the findings of fact. The issue is with the court's legal conclusions in light of its factual findings. The trial court was sufficiently specific in its legal conclusions to allow meaningful review. Therefore, we find no error. Appellant's point one is denied.

In point four, appellant maintains the trial court refused to enforce the contract because it found the contract between the parties was uncertain, incomplete or indefinite and was thus invalid. It asserts this holding was in error. We would agree with appellant's argument if the trial court had indeed based its ruling on that premise, but it did not. The trial court cited a number of rules of law pertaining to specific performance, among them the proposition that a party must show that a valid, definite and certain contract exists before specific performance can be granted. Porter v. Porter, 637 S.W.2d 396, 399 (Mo.App.1982). Under the terms of the contract, the agreement was void if the financing contingency was not met. The trial court found the financing contingency had not been met and, therefore, there was no valid sales contract for it to enforce. As we discuss below, the evidence supports this finding. Appellant's point four is denied.

In point six, appellant argues the trial court erred in finding the financing contingency had not been met rendering the sales contract void. We find no error. There was ample testimony and evidence to support the trial court's conclusion the financing contingency had not been met. Respondent had the right to approve the terms of financing and testified he would not approve a financing arrangement when he was uncertain as to the amount the bank would loan. The vice-president of Commerce Bank testified that the amount of the loan was contingent upon the appraisal and that appellant's agent was made aware of that. This witness also testified that the letter he sent appellant on July 9 only expressed a willingness to make a loan to respondent and it was not a loan commitment. Appellant's own agent admitted the letter was not a customary loan commitment and that loan commitments require an appraisal. This court gives great weight to the trial court's assessment of the credibility of witnesses and to the facts based on their testimony. In the Interest of R.A.S., 826 S.W.2d 397, 399 (Mo.App.W.D.1992). The trial court chose to believe testimony favorable to respondent and we defer to its judgment.

The evidence cited above was sufficient to support the trial court's holding regarding failure of the financing contingency but appellant's own acts, after the financing commitment deadline passed, offer the most compelling proof the contingency was not fulfilled. Appellant's correspondence of August 24 is inconsistent with its present position. Appellant wrote "You are hereby notified that you have defaulted in the performance of said sales contract, specifically having failed to complete among other requirements, the provisions of paragraph 4 & 5 of the extension of contract terms dated June 30, 1992." Paragraph 4 of the extension is the requirement that respondent...