Grossoehme v. Cordell

Decision Date20 June 1995
Docket NumberNo. WD,WD
PartiesCarla GROSSOEHME, Appellant, v. Margaret CORDELL, Personal Representative of Estate of Harland Hoyt, Respondent. 49779.
CourtMissouri Court of Appeals

Jerold L. Drake, Grant City, for appellant.

Scott Ross, Maryville, for respondent.




Carla Grossoehme was injured on April 21, 1986 when the motor vehicle in which she was riding was struck by a motor vehicle driven by Harland Hoyt. Ms. Grossoehme suffered serious and continuing injuries. Her medical costs alone were over $150,000. Mr. Hoyt was intoxicated at the time of the accident.

Mr. Hoyt was prosecuted for felony assault. On March 20, 1987, he entered a guilty plea to that charge. The guilty plea was not the result of a plea bargain. At Mr. Hoyt's sentencing on March 20, 1987, Ms. Grossoehme's and Mr. Hoyt's attorneys jointly requested that Mr. Hoyt be given probation so that he could pay restitution to Ms. Grossoehme. The prosecuting attorney recommended denial of probation, as did the Board of Probation and Parole.

The trial judge requested evidence as to Mr. Hoyt's ability to make restitution and stated that he "hadn't been thinking probation" but would consider it because of "the request of the Grossoehmes." Mr. Hoyt testified that he wanted to make restitution and thought he could do so in the amount of approximately $40,000 at the rate of $4,000 per year. When asked about his ability to pay, he said, "Today I don't see it as being no problem other than something health come up and something, I don't know why I can't."

After hearing statements of counsel and the testimony of Mr. Hoyt, the judge sentenced Mr. Hoyt to seven years in prison. He then suspended execution of the sentence and placed Mr. Hoyt on probation for a period of five years. The judge ordered, as a special condition of probation, that Mr. Hoyt not consume alcohol and that he make restitution to Ms. Grossoehme in the amount of at least $4,000 per year for ten years.

The record does not reveal that Mr. Hoyt signed any separate agreement to abide by the restitutionary provision, nor does it indicate that he signed a promissory note to Ms. Grossoehme in which he promised to pay the restitution. The record does show, however, that on March 27, 1987, one week after the sentencing, Ms. Grossoehme signed a full and complete release of claims arising out of the automobile accident. In return, she received $25,000, which was the limit of Mr. Hoyt's insurance coverage. The release did not mention the restitution which Mr. Hoyt had agreed only a week earlier to pay as a part of the conditions of his probation.

Mr. Hoyt made $4,000 payments each year for five years. His probation ended shortly after the fifth payment was made in 1992. Shortly thereafter, the Grossoehmes saw him frequenting a tavern. Mr. Hoyt failed to make the sixth payment, due on March 20, 1993. A few months later, on June 3, 1993, Ms. Grossoehme brought this suit. In Count I, she alleged breach of contract, claiming that she was a third-party beneficiary of Mr. Hoyt's promise to pay restitution. In Count II, she alleged Mr. Hoyt was negligent in failing to fulfill his promise to pay restitution. In Count III, she alleged that he had not intended to keep his promise to pay restitution at the time he made it, and thus was liable for fraud.

Mr. Hoyt died shortly after being personally served with process and Margaret Cordell, personal representative of his estate, was substituted as defendant in his stead. The case was tried to the court. After considering the evidence and hearing arguments of counsel, the trial court entered judgment for defendant on all three counts. Ms. Grossoehme does not appeal the grant of judgment against her claim on Count II for negligence, but she does appeal judgment against her on Counts I and III. We affirm.


Section 559.021, RSMo 1986 1 permits use of restitution as a condition of probation. It states:

In addition to such other authority as exists to order conditions of probation, the court may order such conditions as the court believes will serve to compensate the victim, any dependent of the victim, or society.

§ 559.021.2. The statute provides no further guidelines regarding or limitations on the payment of restitution.

Generally, restitution, as well as other conditions of probation, are enforced by revoking a defendant's probation if the defendant fails to meet the conditions of probation. This power to revoke probation necessarily ends when the probationary period expires, unless the court initiated the revocation proceedings prior to expiration of the probationary period. Wesbecher v. State, 863 S.W.2d 2, 4-5 (Mo.App.1993).

In this case, for reasons not revealed by the record, Mr. Hoyt failed to make his sixth annual payment of restitution. However, this failure occurred after the expiration of the five year period of probation ordered by the trial court. The trial court thus would have had no power to revoke Mr. Hoyt's probation as a penalty for violating probation, for Mr. Hoyt's probation had ended at the expiration of the five year period. At that point, Mr. Hoyt was no longer obligated to follow the then-expired conditions of probation, and the trial court lost jurisdiction over Mr. Hoyt. Wesbecher, 863 S.W.2d at 4-5. Any action taken by the court against Mr. Hoyt after the five-year probationary period expired would have been absolutely void. Id. at 5.

The complicating issue in this case is that, while the trial court said it imposed probation for only five years, it in fact ordered that restitution be paid for a ten-year period. It cannot be argued, however, that the trial court thereby, in effect, sub silentio ordered a 10 year probationary period as to this one condition of probation. This is because such an interpretation of the order would put it in violation of section 559.016. That section of the Missouri statutes explicitly limits the total time for which a defendant may be placed on probation for a felony such as the one committed by Mr. Hoyt, including any extension, to a maximum term of five years. § 559.016. No special rule permits imposition of a longer period of probation where restitution is ordered.

Thus, the trial court was without authority to order Mr. Hoyt, as a condition of his probation, to pay restitution for a period of greater than five years. To the extent that the trial court's order purported to do so, it was in excess of the court's jurisdiction, and was void. For this reason, the additional five years of restitution cannot be enforced as a condition of probation. 2


Apparently recognizing that restitution cannot be directly enforced as a condition of probation, Ms. Grossoehme argues that she should be able to enforce it as a civil obligation. She claims that Mr. Hoyt's agreement to pay restitution for 10 years was, in effect, a contract entered into by Mr. Hoyt, and that she is entitled to enforce that contract because she, as the recipient of the restitution, is a third-party beneficiary of the contract.

A third-party beneficiary is one who is not in privy to a contract or to its consideration but who may nonetheless maintain a cause of action for breach of the contract. Andes v. Albano, 853 S.W.2d 936, 942 (Mo. banc 1993). Only a third party, for whose primary benefit the parties contracted, may maintain such an action. Id. It is not necessary that the parties to the contract have as their "primary object" the goal of benefitting the third party, but only that the third party be a primary beneficiary. Id. 3

A prerequisite to finding Ms. Grossoehme was a third-party beneficiary of a contract is a finding that the contract was ever formed. Misiak v. Aylward, 584 S.W.2d 610, 613 (Mo.App.1979). Ms. Grossoehme has failed to identify any contract of which she could be found to be a third-party beneficiary.

While Ms. Grossoehme asked the trial judge to grant probation to Mr. Hoyt so that he would be able to pay her restitution, she was clearly not herself a party to any contract with defendant. Neither did the judge himself enter into a contract with defendant; he just imposed a condition of probation. In other circumstances, it has been recognized that a plea bargain agreement between the state and a defendant can result in a binding contract. Shepard v. State, 549 S.W.2d 550 (Mo.App.1977). Moreover, criminal defendants normally sign agreements with the Board of Probation and Parole in which they promise to keep the terms of probation. If restitution is ordered, they will often sign a promissory note for the amount ordered.

Mr. Hoyt, however, did not enter his guilty plea pursuant to a plea agreement. In fact, the prosecutor actually opposed the grant of probation, with or without the condition of restitution. Neither did he sign a promissory note or otherwise sign an agreement to the terms of probation ordered. For these reasons, we do not need to determine whether a third-party beneficiary relationship could exist if Mr. Hoyt had signed such a contract, for we do not have one here. 4

In any event, Ms. Grossoehme has released any right she might otherwise have had to enforce the order of restitution. As noted earlier, only a week after the trial court issued its order granting probation to Mr. Hoyt, Mr. Hoyt and Ms. Grossoehme entered into a settlement in the amount of $25,000, which was the extent of Mr. Hoyt's insurance coverage. Ms. Grossoehme signed a full and unconditional...

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