In the Estate of George Mounts

• Decision Date: 07 December 2000
• Citation: 39 S.W.3d 499
• Parties: (Mo.App. S.D. 2000) In the Estate of George Mounts, Deceased. Chris Thornton and Joann Thornton, Plaintiffs/Respondents v. Kay Barrett, Personal Representative, Defendant/Appellant. 23511
• Court: Missouri Court of Appeals

39 S.W.3d 499 (Mo.App. S.D. 2000)

In the Estate of George Mounts, Deceased. Chris Thornton and Joann Thornton, Plaintiffs/Respondents v. Kay Barrett, Personal Representative, Defendant/Appellant.

23511

Missouri Court of Appeals Southern District

12/07/2000

Appeal From: Circuit Court of Laclede County, Hon. Greg Kays

Counsel for Appellant: Mark C. Fels

Counsel for Respondent: Randall R. Sutter

Opinion Summary: None

Montgomery, J., concurs. Shrum, J., concurs in separate opinion filed.

John E. Parrish, Judge

Kay Barrett, personal representative of the Estate of George Mounts, deceased, appeals a judgment granting specific enforcement of a contract to which decedent was a party. The finding that the contract is entitled to specific enforcement is affirmed. The judgment, as entered, is reversed for lack of specificity. The case is remanded with directions to enter judgment consistent with this opinion enforcing the contract in question.

The decedent was a resident of Laclede County, Missouri, prior to his death. Chris Thornton and Joann Thornton are residents of Laclede County. According to an agreed statement of facts on which the trial court decided this case, "on or about the 9th day of March, 1998[,] Decedent and [Chris Thornton and Joann Thornton] entered into [a] contract" whereby decedent would sell certain real estate to Mr. and Mrs. Thornton. Decedent's date of death was April 25, 1998.

The contract that is the subject of this appeal described the real estate to which it applied as:

The North Half of Lot 1 Southwest Quarter, the North Half of the Southeast Quarter and the Southeast Quarter of the Northeast Quarter, all in Section 18, Township 33, Range 16, containing 160 acres, more or less (full legal description to govern)[.]

The agreed statement of facts filed with the trial court states:

That at all times herein pertinent, Decedent was the owner of the following described real estate located in Laclede County, Missouri, to-wit:

The Southeast Quarter of the Northeast Quarter (SE 1/4 NE 1/4), and the Northeast Quarter of the Southeast Quarter (NE 1/4 SE 1/4) of Section Eighteen (18), Township Thirty-three (33), Range Sixteen (16), containing Eighty (80) acres, more or less, in Laclede County, Missouri.

AND

The Northwest Quarter of the Southeast Quarter and the North Half of Lot One of the Southwest Quarter of Section Eighteen (18), Township Thirty-three (33), Range Sixteen (16) and containing 80 acres more or less[.]

The Thorntons rented the property decedent owned in Laclede County "for six or seven years prior to his death." They paid $700 per year.

Chris Thornton and Joann Thornton filed a petition in decedent's probate estate requesting an order that decedent's personal representative convey the property described in the contract to them. The probate division of the Circuit Court of Laclede County entered judgment in favor of the Thorntons. It ordered that the agreement be specifically enforced stating:

That upon payment by [the Thorntons] to [decedent's personal representative] of the sum of Ninety Thousand Dollars ($90,000.00) [decedent's personal representative] shall execute and deliver to [the Thorntons] a deed with the usual covenants, conveying to [the Thorntons] [the real estate decedent owned in Laclede County as described in the agreed statement of facts filed in the trial court.]

The personal representative's first point on appeal asserts that the trial court erred in ordering specific enforcement of decedent's contract because Chris Thornton and Joanne Thornton had not fully performed their obligations under the contract prior to the death of decedent. Point I contends that the applicable provisions of the probate code, sections 473.303 - .313,¹ do not permit the granting of specific enforcement of a contract under those circumstances.

The personal representative, Ms. Barrett, relies on In the Estate of Wooley, 701 S.W.2d 440 (Mo.App. 1985), to support Point I. She relies on a statement referring to section 473.303, RSMo Supp. 1984,² that provides, "That statute serves only to give authority for recovery of judgment on a contract specifically enforceable against the decedent lacking only the execution by the decedent." 701 S.W.2d at 443. She argues that because the purchase price of the real estate owned by decedent at the time of his death had not been paid or tendered, the contract was not subject to enforcement by reason of section 473.303 because the contract was not "lacking only the execution by the decedent." Wooley, supra. This court does not agree.

To give the meaning Ms. Barrett attributes to the sentence quoted ignores the sentence that follows the one on which she relies. After stating the statute serves only to give authority to specifically enforce a contract "lacking only the execution by the decedent," Wooley states, "As the facts here demonstrate, the contract for the discounted payment of the note was not specifically enforceable up to and including the date of Mrs. Wooley's death." Id. at 443. That is not the situation in this case.

Wooley dealt with an agreement to discount a promissory note. The note was payable to Mrs. Wooley and her daughter, Madeline McCabe. Mrs. Wooley had agreed with the debtors³ to discount the promissory note in exchange for its payment at a time prior to its maturity date. However, Ms. McCabe was not a party to the agreement to discount the promissory note. Wooley concluded that the agreement between Mrs. Wooley and the owners of the real estate was a bilateral contract. Its terms were:

[The owners of the land that secured payment of the promissory note] agreed that if the note were assigned and released, they would pay $55,000.00. Mrs. Wooley promised that if the money were paid, she would assign and release the note. These promises were, however, subject to the condition that Mrs. Wooley procure from Madeline McCabe the assignment of her interest in the note. Had Mrs. McCabe persisted in her refusal to assign her interest in the note, the agreement would not have been specifically enforceable . . . against Mrs. Wooley because Mrs. Wooley was incapable of transferring full ownership of the debt.701 S.W.2d at 443.

Wooley explains, "Until that assignment vested Mrs. Wooley with full ownership of the note, she could not specifically perform the undertaking to sell respondents the note nor would a judgment for specific performance have been of any practical effect." Id. Ms. McCabe had not assigned her interest in the promissory note to Mrs. Wooley prior to Mrs. Wooley's death. Thus, the contract was not "specifically enforceable in equity" as required in order to pursue the remedy provided by section 473.303.1, RSMo Supp. 1984.

In this case, the decedent, Mr. Mounts, had promised to convey land to the Thorntons before his death. In return, the purchasers were to pay Mr. Mounts an agreed sum. As in Wooley, there was a bilateral contract, "a promise for a promise." 701 S.W.2d at 443. However, unlike Mrs. Wooley, Mr. Mounts was capable of performing his promise to convey the real estate in question. His agreement was enforceable.

The argument portion of the personal representative's brief directed to Point I further argues that the Thorntons were not entitled to specific enforcement of their contract with decedent because they had not tendered full performance of their obligation at the time of decedent's death.⁴ However, the "Agreed Statement of Facts" on which the trial court decided the claim now on appeal includes no agreed statement regarding whether or not performance was tendered. (Albeit that the agreed statement includes a numbered paragraph stating, "[The Thorntons] allege that at the time of Decedent's death, [they] were ready, willing and able to close on the Earnest Money Contract . . . and Estate lacks knowledge of any contrary evidence.")

The record on appeal does not reveal that the personal representative sought determination of this issue in the trial court. A party to an appeal is not entitled to raise an issue on appeal not previously placed before the trial court. Boshers v. Humane Soc. of Missouri, Inc., 929 S.W.2d 250, 254 (Mo.App. 1996). "On appeal, a party is bound by the position taken in the trial court, and an appellate court will not convict the trial court of error on an issue which was not put before it." Id. Point I is denied.

Point II asserts the trial court erred in entering judgment for specific enforcement because:

A. The contract was not specifically enforceable in equity as of the date of the decedent's death in that the contract's condition precedent of approval of the transaction by the decedent, as owner of the real estate, had not been satisfied as of the date of his death.

B. The contract was not specifically enforceable in equity as of the date of the decedent's death in that the decedent died prior to the time for either party to perform under the contract.

C. The contract was not specifically enforceable in equity as of the date of the decedent's death in that it was not supported by any consideration in the form of earnest money.

Part A of Point II is directed to language in the contract that states, "THIS SALE under above terms and conditions is made subject to the approval of the OWNER of this property." As this court perceives the personal representative's argument, she contends decedent was required to do something more than execute the March 9, 1998, agreement in order for it to have been binding and, therefore, enforceable against decedent's estate.

The "subject to approval" language quoted above is the last sentence in the contract. The contract appears to be on a printed form with blanks that were filled in before it was signed. It is entitled "EARNEST MONEY CONTRACT." "LEBANON, MISSOURI" is printed immediately below and to the right of the title, followed by the typewritten date "March 9, 1998" on a printed line provided for that purpose. The agreement...