Hendricks v. Northcutt

• Decision Date: 06 December 1991
• Docket Number: No. 17260,17260
• Citation: 820 S.W.2d 689
• Parties: C.R. HENDRICKS, et al., Plaintiffs-Respondents, v. Bobby NORTHCUTT and Delores Northcutt, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 689

820 S.W.2d 689

C.R. HENDRICKS, et al., Plaintiffs-Respondents, v. Bobby NORTHCUTT and Delores Northcutt, Defendants-Appellants.

No. 17260.

Missouri Court of Appeals,

Southern District,

Division Two.

Dec. 6, 1991.

Motion for Rehearing or Transfer to

Supreme Court Denied Dec. 30, 1991.

James M. Turnbow, Hayti, Michael B. Hazel, Caruthersville, and William M. Barvick, Jefferson City, for plaintiffs-respondents.

Jim R. Bruce, Kennett, for defendants-appellants.

MAUS, Judge.

On August 7, 1985, Joe Agnes Holly (Holly) sold defendants Bobby Northcutt and Delores Northcutt, his wife, (Northcutts), 16.4 acres of land in Pemiscot County. As a part of that transaction, Holly granted the Northcutts a right of first refusal upon sale and an option to purchase, on Holly's death, 50 acres of an adjoining tract of 224 acres. Within the same month, Holly transferred the entire adjoining tract of 224 acres to her daughter, Josephine Claire Turnage (Turnage). Holly died. Eight months later, Turnage died. Forty-seven months after Holly's death, the plaintiffs, as the successors in interest of Holly and Turnage, brought this action to declare that the right of first refusal and option to purchase had expired and that the Northcutts had no right, title or interest in the 50 acres. Northcutts counterclaimed and sought damages for loss of crop rental, the denial of their ownership rights, legal expenses, punitive damages and specific performance. They also sought an adjudication that the plaintiffs and their predecessors breached the option contract by their failure "to offer the 50-acre tract to defendants." The trial court dismissed Northcutts' counterclaim. After a trial on the merits of the petition, the trial court found Northcutts failed to timely exercise their option to purchase and that the Northcutts have no interest in the 50 acres. Northcutts appeal.

Northcutts' first contention on appeal is that the trial court erred in dismissing their counterclaim because "the facts alleged for claim is for fraudulent conveyance and the non-claim statutes are inapplicable." Ordinarily, the propriety of that dismissal would be reviewed under the following standard:

"Our review of the dismissal of the petition allows the pleading its broadest intendment, we treat all facts alleged as true, construe the allegations favorably to the plaintiff and determine whether the averments invoke principles of substantive law." Shapiro v. Columbia Un. Nat. Bank & Trust Company, 576 S.W.2d 310, 312 (Mo. banc 1978), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979).

Northcutts' second contention is the trial court erred in finding they failed to timely exercise their option to purchase and in entering judgment that they have no right, title or interest in the 50 acres. Whether the trial court erred in entering judgment for the plaintiffs upon the merits is to be measured by the standards of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

For the reasons hereafter stated, this court holds that the trial court did not err in entering judgment for the plaintiffs upon their petition. Northcutts' counterclaim was, of necessity, founded upon the propositions that their right of first refusal was breached and their option to purchase had not terminated. Upon trial on the merits of the petition, those issues were determined adversely to the Northcutts.

"Thus it clearly appears that plaintiff had available a full trial on all of its contentions on the singular ultimate issue presented by its petition and defendant's counterclaim. The court therefore holds that in these particulars, and in a sense peculiar circumstances, no purpose would be served by considering and deciding procedural matters which occurred prior to the trial as they would not affect the ultimate decision on the merits of this appeal." Lakewood Park Cemetery Ass'n v. Met. St. Louis Sewer Dist., 530 S.W.2d 240, 245 (Mo. banc 1975).

That being so with respect to the ultimate issues presented by Northcutts' counterclaim, it is not necessary to consider the propriety of the dismissal of that counterclaim. Lakewood Park Cemetery Ass'n v. Met. St. Louis Sewer Dist., supra; Duenke v. Brummett, 801 S.W.2d 759 (Mo.App.1991); Longmore v. Merwin, 585 S.W.2d 545 (Mo.App.1979).

The following is an outline of the facts necessary to determine the propriety of the judgment on the petition in favor of the plaintiffs. As stated, on August 7, 1985, Holly sold 16.4 acres to the Northcutts. As a part of that transaction, Holly executed an instrument entitled "Option to Purchase Real Estate" granting to Northcutts "the following option with respect to a Fifty Acre tract of land [description omitted]:

1. Seller hereby gives and grants to Buyer, their heirs and assigns, the exclusive option and privilege of purchasing from my estate, after my death, all right, title, or interest which my estate may have in or to the above described property at a purchase price of Fourteen Hundred Dollars ($1,400.00) per acre. Purchaser may exercise this option and privilege by tendering to my executor or administrator the purchase price at any time not later than one (1) year after my death.

2. In the event that Seller shall decide, during her life time, to Sell the above described property, she shall first offer the property to Buyer for the sale price of Fourteen Hundred Dollars ($1,400.00) per acre. Buyer shall have sixty (60) days from such offering in which to accept or reject the same.

3. This agreement shall inure to the benefit of and be binding upon the heirs, representatives, and assigns of the parties."

On August 30, 1985, Holly, by way of gift, conveyed a tract of 224 acres which included the "Fifty Acre tract" to her daughter Turnage. On February 11, 1986, Holly died testate. On March 25, 1986, Letters Testamentary on her estate were issued to Arline Avery. On May 19, 1986, attorney William O. Welman, on behalf of the personal representative of Holly, returned to attorney Jim R. Bruce, representing Northcutts, U.S. Department of Agriculture forms pertaining to the 224 acres leased by Holly to the Northcutts. Welman explained that he learned that Holly had conveyed the 224 acres to Turnage and therefore the personal representative could not execute the forms pertaining to the farm. On June 4, 1986, Bruce, on behalf of Northcutts, again wrote Welman concerning the leased real property. He also stated "they [Northcutts] are now interested in exercising the option but are reluctant to do so as long as the ownership of the real property is unresolved." He asked that Welman inform him of the action the estate intended to take concerning title to "the real estate in question" and whether or not the estate would give the Northcutts a quitclaim deed to the 50 acres. On June 13, 1986, Welman replied. He stated that he did not know if the estate would institute any action in respect to the real property. He further stated that he did not believe there was any authority for the estate to give the Northcutts a quitclaim deed.

In May of 1986, Northcutts entered into negotiations to purchase the Fifty Acre tract from Turnage for $1,200 per acre. On October 12, 1986, Turnage died testate. In November of 1986, Margie Ann Bennett was appointed Personal Representative of the Turnage estate.

On a date not disclosed by the record, Jessie Mead, Allie Bowman and Hazel Thweatt, sisters of Holly, instituted an action against Margie Bennett as Personal Representative of the Estate of Turnage, to set aside the conveyance of August 30, 1985, by which Holly conveyed the farm to Turnage. The status of the sisters as the "real parties in interest" is not disclosed by the petition. As a basis for recovery, they alleged the incapacity of Holly. They further alleged that if the deed of August 30, 1985 is set aside, they "will inherit the above described real estate through the Jo [sic] Agnes Holly Estate." A lis pendens concerning this action was filed on January 29, 1987. This action was settled by Margie Bennett, as Personal Representative of the Turnage estate, executing an instrument dated August 31, 1988, which on its face purported to convey an undivided one-half interest in the farm to Arline Avery, as Personal Representative of the Estate of Joe Agnes Holly. The record does not show any judicial authorization for this purported conveyance. For this reason, and other deficiencies in the record, and because of the limited issues presented, this opinion should not be construed as determining the status of the title to the 224 acres, except the determination that the defendants have no right, title or interest in that 224 acres.

The record discloses that on September 8, 1989, Northcutts filed a Notice of Lis Pendens. This notice advised that Northcutts, as plaintiffs, had commenced an action in the Circuit Court of Dunklin County against Margie Bennett, Individually and as Personal Representative of the Estate of Turnage. The notice further stated: "The action asserts the option was breached as the result of undue influence on the part of Margie Bennett and intentional interference with the legal rights of the Northcutts." This action was subsequently dismissed.

The petition in the action before this court was filed January 3, 1990. The plaintiffs are C.R. Hendricks, as Successor Personal Representative of the Estate of Turnage, Jessie Mead, as Successor Personal Representative of the Estate of Holly, and seven individuals claiming under a deed of a one-sixth interest in the farm executed by Margie Bennett, as Personal Representative of the Estate of Turnage. The defendants are Northcutts. The allegations of the petition and the Northcutts' counterclaim have been noted. The counterclaim was dismissed....