Howard v. Youngman, ED 79283.

Citation81 S.W.3d 101
Decision Date16 April 2002
Docket NumberNo. ED 79302.,No. ED 79283.,No. ED 79710.,No. ED 79303.,ED 79283.,ED 79302.,ED 79303.,ED 79710.
PartiesKenneth HOWARD, Plaintiff/Appellant/Cross-Respondent, v. T. French YOUNGMAN and Beverly A. Youngman, Defendants/Third-Party Plaintiffs/Respondents/Cross-Appellants, Patricia J. Waelter, Defendant/Respondent, Coldwell Banker Ira E. Berry, Inc., Defendant/Respondent, and David Goings, Defendant/Respondent/Cross-Appellant, v. Gordon A. Gundaker Real Estate Co. Inc., Third-Party Defendant/Cross-Respondent, Gordon A. Gundaker, Third-Party Defendant, and Marilyn B. Doorack, Third-Party Defendant.
CourtCourt of Appeal of Missouri (US)

W. Stanley Walch, Jeffrey R. Fink, Thompson Coburn LLP, St. Louis, MO, for appellant.

Steven L. Leonard, P.C., Clayton, MO, for respondents/cross-appellants.

Steven M. Cohen, Berger, Cohen & Brandt, L.C., Clayton, MO, for respondents Coldwell Banker, Ira E. Berry, Inc. and Patricia Waelter.

Gregg M. Lemley, Michael E. Franklin, Bryan Cave LLP, St. Louis, MO, for respondent/cross-appellant David Goings.

Paul F. Devine, Vatterott, Shaffar & Dolan, P.C., Maryland Heights, MO, for third-party/cross-respondent Gordon A. Gundaker Real Estate Co.

KATHIANNE KNAUP CRANE, Judge.

This appeal involves multiple contract and tort issues arising from the parties' treatment of the waiver provisions of a financing contingency clause in a standard residential real estate contract. Plaintiff contracted to purchase a home from the defendant homeowners but did not timely apply for the loan described in the contingency clause and obtained different financing. The homeowners treated their contract with plaintiff as terminated, contracted to sell the home at a higher price to a different buyer, also a defendant, and refused to close on plaintiff's contract. Plaintiff, who took the position that he had waived the financing contingency by not making a timely loan application, filed a lawsuit against homeowners, the subsequent buyer, and the homeowners' real estate broker to declare and enforce his rights under the contract and to recover damages for breach of contract and tortious interference with contract. Defendants responded with counterclaims, cross-claims, and a third-party claim against plaintiffs real estate broker.

The trial court entered summary judgment against plaintiff, holding that the contract had terminated and that plaintiff had not met his burden with respect to any of the elements of his tortious interference claim against the homeowners' real estate broker. It awarded the homeowners and the subsequent buyer costs and attorney's fees. By summary judgment or dismissal, the trial court denied relief on the remaining counts of the homeowners' counterclaim against plaintiff, the homeowners' third-party claim against plaintiff's real estate broker, and the subsequent buyer's counterclaim against plaintiff for tortious interference with the subsequent buyer's contract.

The buyer, homeowners, and subsequent buyer each appeal from the trial court's judgment. We reverse the summary judgment entered against plaintiff and remand. We also reverse the awards of attorney's fees. In all other respects, we affirm.

FACTUAL BACKGROUND

On July 7, 1998, plaintiff, Kenneth Howard, entered into a contract with defendants, T. French Youngman and Beverly Youngman, for the purchase of the Youngmans' home in Creve Coeur, Missouri. The parties used the St. Louis Association of Realtors Residential Form # 2090, dated 9/97. The contract contained the following financing provision:

4. METHOD OF FINANCING

Conventional, FHA or VA Financing. Buyer agrees to apply for a loan, as described below, within two days after "Acceptance Deadline" date. If Buyer does not apply within that time for the loan described below, Buyer waives this financing contingency. Buyer agrees to do all things necessary, including but not limited to, the execution of loan applications and other instruments, and to cooperate fully in order to obtain the financing necessary to complete this transaction. If Buyer does not obtain a written commitment for a loan on the same terms as described below, or waive this contingency in writing, by 5:00 p.m. on July 24, 1998 (or any written extension), this contract is terminated and earnest deposit will be returned to Buyer subject to paragraph 12, less any expenses incurred by or in behalf of Buyer. If Buyer wants to accept a loan commitment on terms other than described below, he must either notify Seller in writing of his acceptance of different terms, or waive the financing contingency in writing by the loan commitment deadline. If commitment is not obtained or waived by the loan commitment deadline, Buyer expressly waives any right to close this sale and acknowledges Seller's right to sell this property to another party. Any loan commitment requiring any of buyer's property to be sold and/or closed shall not be considered a commitment hereunder. (Note: Failure to "lock in", if available, may constitute a waiver by Buyer of the financing contingency.) Buyer to provide (and authorizes lender to provide) Seller and agents a copy of the loan commitment. Buyer to pay mortgage insurance, if required.

The "Acceptance Deadline" was July 7, 1998. The described loan was a conventional fixed or adjustable rate loan for 80% of the sale price with the initial interest rate not to exceed the prevailing market rate and an amortization of 15 or 30 years. The contract set closing on July 30, 1998.

"Gundaker Realtors/BHG" (defendant Gordon A. Gundaker Real Estate Co., Inc. (Gundaker)) was shown on the contract as the "selling agency" and Marilyn Middlekauff as the "selling agent". The contract provided that the "selling agent" was the "buyer's agent," acting on Howard's behalf as buyer. "Coldwell Banker" (defendant Coldwell Banker Ira E. Berry, Inc. (Coldwell Banker)) was shown as the Youngmans'"listing agency." Defendant Patricia Waelter was the Youngmans'"listing agent."

Howard did not apply for any loan by July 9, 1998. On July 10, 1998, Howard applied for a loan from Carrollton Bank in a lesser amount than described in the contingency clause and obtained a loan commitment for the lesser amount on July 14, 1998. Accordingly, Howard did not obtain a written loan commitment for a loan on the same terms as described in the contract. Further, he did not notify the Youngmans of his acceptance of different terms or execute a written waiver of the contingency by 5:00 p.m. on July 24, 1998.

On July 27, 1998, Waelter informed Howard's agent, Middlekauff, that Howard no longer had a contract for the property. Waelter told the Youngmans that Howard was "out of contract." On July 28, 1998, David Goings entered into a contract with the Youngmans to purchase the property for $15,000 more than Howard had contracted to pay. Goings' contract showed Gundaker and Patrick Tierney as his "buyer's agents."

On July 30, the Youngmans notified Howard, in a letter prepared by their attorney, that they believed their contract with Howard had terminated on July 24, 1998. Howard appeared for closing, but the Youngmans did not. That same day Howard filed an action against the Youngmans for specific performance. As a result of the litigation, Goings never purchased the home, but he has been leasing it from the Youngmans.

PROCEDURAL BACKGROUND

Howard's Claims

Howard subsequently filed a second amended petition in which he sought declaratory judgment, injunction, and specific performance against the Youngmans and Goings with respect to the real estate contract (Count I), damages for breach of the real estate contract from the Youngmans (Count II), and damages for tortious interference with that contract from Waelter and Coldwell Banker (Count III). The Young-mans, Goings, Waelter, and Coldwell Banker each filed motions for summary judgment on the counts in which they were defendants.

The Youngmans' Claims

The Youngmans filed a counterclaim against Howard seeking a declaratory judgment in their favor with respect to the real estate contract (Count I). They also sought damages from Howard on a respondeat superior theory for tortious interference with the Howard contract by Gundaker (Count II) and for negligent misrepresentation by Gundaker (Count III). They further sought damages from Howard for breach of the Howard contract (Count IV), and for abuse of process (Count V). The Youngmans moved for summary judgment on their declaratory judgment count. Howard filed a motion to dismiss the remaining counts of the Youngmans' counterclaim for failure to state a claim for which relief could be granted.

The Youngmans filed a third-party petition against Gundaker and Gordon A. Gundaker1 for damages for tortious interference with the Howard contract (Count I) and negligent misrepresentation (Count II). Gundaker filed a motion for summary judgment on both counts of the Youngmans' third-party petition.

Goings' Claims

Goings filed a counterclaim against Howard to recover damages for tortious interference with the Goings contract (Count I) and for declaratory judgment with respect to the Howard contract (Count II). Goings filed a motion for summary judgment on his' declaratory judgment count. Howard filed a motion to dismiss the tortious interference count for failure to state a claim upon which relief can be granted.

Judgment

The judgment is composed of a series of orders entered by the trial court. The trial court entered summary judgment against Howard and in favor of the Youngmans and Goings on the counts of the second amended petition and counterclaims relating to the construction and breach of the real estate contract. It also entered summary judgment against Howard and in favor of Coldwell...

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