Guengerich v. Barker, SD 31479.

• Decision Date: 10 March 2014
• Docket Number: No. SD 31479.,SD 31479.
• Citation: 423 S.W.3d 331
• Parties: Terry A. GUENGERICH and Lorraine Guengerich, Plaintiffs–Appellants, v. Kayla BARKER and Clarence Edward Higgins, Jr., Defendants–Respondents.
• Court: Missouri Court of Appeals

423 S.W.3d 331

Terry A. GUENGERICH and Lorraine Guengerich, Plaintiffs–Appellants,
v.
Kayla BARKER and Clarence Edward Higgins, Jr., Defendants–Respondents.

No. SD 31479.

Missouri Court of Appeals, Southern District, Division Two.

March 10, 2014.

[423 S.W.3d 334]

John W. Bruffett of Ava, MO, for appellants.

Karen A. Bates–Crouch of Ava, MO, for respondents.

JEFFREY W. BATES, J.

Terry and Lorraine Guengerich (hereinafter referred to individually by their given names and collectively as Sellers) appeal from a judgment ordering them to pay damages arising out of a contract to sell real estate to Kayla Barker and Clarence Higgins (hereinafter referred to individually by their given names and collectively as Buyers). The trial court found for Buyers on their counts alleging unjust enrichment and breach of contract. Sellers contend: (1) the trial court erred in finding that Sellers had been unjustly enriched; (2) the trial court erred in finding that Sellers had materially breached the contract; and (3) Buyers failed to present substantial evidence to support certain items awarded as damages. Because the trial court correctly found for Buyers on their breach of contract count, they were entitled to recover damages on that count. Since it is clear from the judgment that the damages from the breach of contract duplicated the amounts awarded on the unjust enrichment count, any error as to the latter count was immaterial and need not be addressed. We agree with Sellers, however, that the trial court erred in two respects in assessing Buyers' damages. Pursuant to Rule 84.14, we affirm the judgment as modified.¹

I. Standard of Review

We will affirm the decision in a court-tried case unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Greenstreet v. Fairchild, 313 S.W.3d 163, 168 (Mo.App.2010). The trial court's judgment is presumed correct, and Sellers have the burden of proving it erroneous. Surrey Condominium Ass'n, Inc. v. Webb, 163 S.W.3d 531, 535 (Mo.App.2005). An appellate

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court is primarily concerned with the correctness of the trial court's result, rather than the route taken by the trial court to reach that result. Business Men's Assur. Co. of America v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999). Therefore, we will affirm the trial court's judgment under any reasonable theory supported by the evidence, even if the reasons advanced by the trial court were wrong or insufficient. Ewanchuk v. Mitchell, 154 S.W.3d 476, 481 (Mo.App.2005); Jackson v. Cannon, 147 S.W.3d 168, 173 (Mo.App.2004).

In conducting our review, “we accept as true the evidence and permissible inferences favorable to the prevailing party and disregard contrary evidence and inferences.” Gordon A. Gundaker Real Estate Co., Inc. v. Maue, 793 S.W.2d 550, 551 (Mo.App.1990). “We defer to the trial court's determinations regarding credibility; however, we review issues of law de novo.” Greenstreet, 313 S.W.3d at 169. The following summary of the facts has been prepared in accordance with these principles.

II. Factual and Procedural Background

Sellers owned 71 acres of land in Douglas County. The property consisted of two adjoining parcels of land, separated by a county road. Sellers had orally leased both parcels of land to Rick and Nicole Dehaan (the Dehaans) to pasture their cattle for a per-head monthly fee.

Sellers decided to sell the parcel of land lying south of the county road. This fenced parcel, which Sellers believed to be 20 acres in size, contained a 3,800–square–foot home and a barn. Shortly after Buyers moved from Colorado to Missouri, they offered to purchase this parcel of land (hereinafter referred to as the 20–acre parcel) from Sellers. Buyers had a herd of 15 horses and needed a location suitable for that number of animals. Buyers' offer included, inter alia, the following provisions: (1) the purchased property would be financed with a seller-financing agreement; (2) Buyers would execute a promissory note for the purchase price, bearing interest at 5 1/2 percent to Sellers; (3) Sellers would provide title insurance; (4) the washer and dryer would be left in the home and included in the purchase price; (5) Sellers would provide a one-year home warranty; (6) Sellers would provide a termite clearance letter; and (7) Buyers would be entitled to possession of the purchased property at the time of closing and a right of first refusal on the adjoining 51 acres across the county road (hereinafter referred to as the 51–acre parcel). Buyers also offered to maintain the 51–acre parcel in exchange for being able to use it to pasture their horses. This offer was made on September 4, 2009.

Sellers' agent prepared a counteroffer. This counteroffer proposed that the interest rate on the promissory note be set at 6 percent and provided a right of first refusal on the 51–acre parcel. The counteroffer did not mention the use of the 51–acre parcel prior to exercise of the right of first refusal. The counteroffer also stated that any “unchanged terms” remained part of the new offer. Buyers accepted the modifications and signed the counteroffer.

The closing on the purchased property was conducted on September 24, 2009. At that time, Buyers were not provided with a home warranty, a title insurance policy or a termite clearance letter. Sellers did execute an affidavit stating that there were no leases or encumbrances on the purchased property. At the closing, Sellers and Buyers executed a contract for deed. Pursuant to that contract, Buyers paid $50,000 down and executed a promissory note for the balance of the purchase price in the amount of $250,000 at 6 percent interest.

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The monthly purchase price payments were $1,791.08 to be paid on the 25th of each month. The agreement provided that Sellers would deposit a warranty deed in escrow and that Sellers would provide a title insurance commitment. The warranty deed would be delivered to Buyers upon payment of the full purchase price. Buyers executed a quit claim deed to Sellers to be placed in escrow. The quit claim deed would be delivered to Sellers upon default by Buyers. The contract for deed did not contain an integration clause or a statement that it represented the entire agreement of the parties. The contract for deed further contained the following two provisions regarding taxes and insurance:

TAXES:

SELLER shall annually receive the annual real estate tax statement and shall forward to BUYER the amount of real estate taxes due. BUYER shall forward payment to SELLER by December 15th of each year. Failure of BUYER to reimburse SELLER shall constitute default and the escrow agent is authorized to deliver to SELLER the Quit Claim Deed heretofore mentioned.

INSURANCE:

BUYER shall carry insurance equal to or in excess of the unpaid balance of this agreement, with a loss-payable clause in favor of SELLER. IT IS AGREED that the obligation to keep the premises insured is continuous throughout the pendency of this agreement. IT IS AGREED that in the event BUYER shall fail to keep the premises insured that same shall constitute default and that SELLER shall, at their option, obtain insurance and the ESCROW AGENT is authorized to deliver to SELLER the Quit–Claim Deed heretofore mentioned.
Buyers provided a receipt for insurance coverage at closing.

When Buyers brought their horses to the purchased property on September 24th, there was a herd of cows and a bull on the 20–acre parcel. The 51–acre parcel also had cattle grazing on it. Nicole Dehaan, to whom the cattle belonged, stopped by the 20–acre parcel on the 24th and said that the Dehaans had leased that property from Sellers on a month-to-month basis to pasture her cattle. Buyers placed their horses in an enclosed, one-acre paddock on the 20–acre parcel. There was not sufficient pasture in that enclosure to feed the horses, so Buyers were required to purchase hay for the animals.

Sellers told Buyers that they would have to execute a written lease on the 51–acre parcel to “trump” the Dehaans' oral lease on the 20–acre parcel and thereby authorize the removal of her cattle from that land. Buyers signed a written agreement leasing the 51–acre parcel for $200 per month so they could get the Dehaans' cattle off the 20–acre parcel. Buyers also learned from the county assessor that the 20–acre parcel purchased by Buyers included some acreage beyond the fence.

On October 4, 2009, Buyers called the sheriff's department because the Dehaans' cattle were still on the 20–acre parcel. The sheriff's deputy who responded to Buyers' call examined some paperwork provided by the Deehans and determined that they had until November 1st to remove the cattle from the 20–acre parcel. The cattle remained on Buyers' land until that date. From the date of closing through November 1st, Buyers spent $400 on hay to feed their horses. After the cattle were removed, Buyers still had to purchase additional feed for the horses because the land had not recovered enough

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to provide sufficient grazing for those animals.

When Buyers moved into the home, they discovered that Sellers had left some furniture and other personal property in the home. Additionally, the washer and dryer had been replaced with an older washer and dryer that did not work. Buyers rented a washer and dryer set. By the time of trial, Buyers had spent $3,145 to rent those appliances. Buyers also were concerned about the home warranty because they wanted to make a claim about the washer and dryer on the home warranty. When Buyers spoke with Sellers' agent about the issue, she said she needed a check for $509 right then to activate the home warranty. Buyers paid that amount to the escrow company so that they could get the home warranty implemented.

Meanwhile, the check Buyers had used to pay the insurance premium had been dishonored because of a bank error. A cancellation notice was...