Johnson v. Cook

• Citation: 167 S.W.3d 258
• Decision Date: 19 July 2005
• Docket Number: No. ED 85285.,ED 85285.
• Parties: Eda M. JOHNSON, Plaintiff/Appellant, v. George H. COOK and Patricia S. Cook, Defendants/Respondents.
• Court: United States State Supreme Court of Missouri

Page 258

167 S.W.3d 258

Eda M. JOHNSON, Plaintiff/Appellant, v. George H. COOK and Patricia S. Cook, Defendants/Respondents.

No. ED 85285.

Missouri Court of Appeals, Eastern District, Division One.

July 19, 2005.

COPYRIGHT MATERIAL OMITTED

Ronald R. Fralicx, Warrenton, MO, for appellant.

George H. Cook & Patricia S. Cook, Wright City, MO, pro se.

SHERRI B. SULLIVAN, J.

Introduction

Eda M. Johnson (Appellant) appeals from a trial court judgment in favor of George H. Cook (Mr. Cook) and Patricia S. Cook (Mrs. Cook) (collectively Respondents), husband and wife, and against Appellant on her Petition for Specific Performance and Breach of Contract (Petition) regarding a purported real estate transaction. We affirm in part and reverse and remand in part.

Factual and Procedural Background

In January 2001, Appellant purchased a 9-acre parcel of real estate from Respondents for $43,000. Appellant built a house and now lives on the property. Adjacent to the 9 acre parcel is a 3.68-acre parcel of real estate also owned by Respondents. Around the time Appellant purchased the 9-acre parcel, Appellant and Mr. Cook discussed Appellant having the right of first refusal to purchase the 3.68-acre parcel, which Mr. Cook also was interested in selling.

Mr. Cook employed Appellant as an independent contractor from May 2001 until August 2002. Appellant earned commissions for soliciting clients to file siding claims. In December 2001, Mr. Cook was doing business as a sole proprietor using the name Magic Marketing.

On December 11, 2001, Appellant entered into an Agreement to Sell Real Estate (the Agreement) with Respondents as "Seller" and Appellant as "Buyer." Paragraph one of the Agreement states: "LEGAL DESCRIPTION of real estate located in WARREN County, State of MISSOURI:" "WARREN" and "MISSOURI" are handwritten. Nothing is written, typed or referred to in the space after the colon following "MISSOURI."

The Agreement includes a purchase price of $27,000 cash, with a deposit of $500 to be held in trust by Mr. Cook, and a handwritten closing date of "asap." The Agreement is signed by Appellant and Mr. Cook. The Agreement is not signed by Mrs. Cook.

On October 9, 2002, Appellant filed a two-count petition (the Petition) against Respondents. Count I sought specific performance of the Agreement. Count II sought damages for breach of contract. Each count also included a prayer "for such other relief as the court may deem proper."

Among the exhibits submitted into evidence by Appellant at trial on the Petition were the following. Exhibit E was a Boundary Survey prepared for Mr. Cook in January 2001 indicating two neighboring parcels of land in Warren County, Missouri, one labeled Parcel "A" and the other labeled Parcel "B." Parcel "A" is the property Appellant purchased from Respondents in January 2001. Parcel "B" is the property intended as the subject matter of the Agreement.

Exhibit B was a receipt for a wire transfer on December 27, 2001 from Appellant to "Magic Marketing, Inc." in the amount of $12,000. According to Appellant, the wire transfer was a payment towards the purchase price of the property under the Agreement, and she wired it to the Magic Marketing account because Mr. Cook did not have his personal checking account number available. Appellant testified that the $12,000 came from the proceeds, $68,000, from the sale of her house in California on December 26, 2001, and that she offered to pay Mr. Cook in full for the property but he said he did not need all of the money at that time. According to Mr. Cook, in December 2001, Magic Marketing was at risk of shutting down for two to three weeks and having to lay off everybody until an investor provided additional capital. Mr. Cook testified that Appellant asked him how much money was needed to sustain the company until the investor provided the additional capital and that he indicated about $12,000 to $15,000. Mr. Cook stated that because she thought it was "an opportunity of a lifetime," Appellant offered to loan the company $12,000 from the California house sale proceeds.

Exhibit C was a personal check dated December 31, 2001 from Appellant to "George Cook" in the amount of $5,500. The check contains a notation of "Land."

The trial court entered a judgment in favor of Respondents and against Appellant. The parties did not request findings of fact. As to Count I, the court concluded that the Agreement violates the statute of frauds because the Agreement does not have Mrs. Cook's signature, who owns the property with Mr. Cook, and therefore the Agreement is void as to Mrs. Cook and unenforceable as to Mr. Cook. The court also concluded that the Agreement is void for vagueness because it does not contain a legal description of the property or a date for performance. As to Count II, the court concluded that the count is based on "common law breach over the sale of the land and it, too, violates the statute of frauds."

Appellant filed a Motion to Amend Judgment and/or Motion for New Trial, which the trial court denied. Appellant appeals from the trial court's judgment.

Standard of Review

In a court-tried case, we will affirm the judgment of the trial court unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We accept the evidence and inferences favorable to the prevailing party and disregard all contrary evidence. Mullenix-St. Charles Properties, L.P. v. City of St. Charles, 983 S.W.2d 550, 555 (Mo.App. E.D.1998). Because the parties did not request findings of fact, and the trial court did not make specific findings of fact, we consider all controverted fact issues as having been found in accordance with the result reached. Rule 73.01(c).¹ We independently evaluate the trial court's conclusions of law. Mullenix-St. Charles Properties, L.P., 983 S.W.2d at 555. We defer to the trial court's superior ability to assess the credibility of witnesses. Flooring Systems, Inc. v. Staat Constr. Co., 100 S.W.3d 835, 837 (Mo.App. E.D.2003).

Discussion

Appellant raises five points on appeal.² In her first point, Appellant argues that the trial court erred in not ordering specific performance of the Agreement because the Agreement is legally enforceable against Respondents and Appellant was at all times ready, willing and able to perform.

The statute of frauds prohibits an action to be brought "upon any contract made for the sale of lands ... unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized, and no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract." Section 432.010.³

Whether a writing satisfies the statute of frauds is a question of law. Ahrens v. Dodd, 863 S.W.2d 611, 613 (Mo.App. E.D.1992). To satisfy the statute of frauds, a writing must contain the essential terms of the contract, including the parties, the subject matter, the consideration or price, and the promises on both sides. Id. The subject matter, i.e., the real property to be conveyed, need not be fully and accurately described as long as the writing affords means whereby identification may be made perfect and certain by parol evidence. Id. The writing must be a guide to find the property and must contain sufficient particulars to point out and distinguish the tract from any other. Fox v. Courtney, 111 Mo. 147, 20 S.W. 20, 21 (1892). The description cannot be supplied altogether by parol evidence. Id. A writing is insufficient where parol evidence is necessary to supply the description, or part thereof, to determine and to define the property and to show the intention and agreement of the parties as to the property. Shy v. Lewis, 321 Mo. 688, 12 S.W.2d 719, 721 (1928).

Appellant concedes in her brief that the Agreement did not contain the legal description of the property intended as the subject matter of the real estate sale. The Agreement contains neither a description of the property nor any reference or means by which to guide a party to any extrinsic evidence from which the property can be found and identified.

Appellant argues that although the Agreement did not contain the legal description of the property, her testimony and Mr. Cook's testimony at trial identified the property intended as the subject matter of the Agreement. However, if a writing contains no description or an insufficient description, then oral evidence is not admissible to aid the writing. Shy, 12 S.W.2d at 721.

Further, the Agreement is not signed by Mrs. Cook. Mr. Cook testified that although Mrs. Cook became aware that he signed the Agreement, he never got permission from her to sell her interest in the 3.68-acre parcel and she never gave him authority in writing to negotiate on her behalf for the sale of the parcel.⁴ He stated that Mrs. Cook was adamant about not selling any more land to Appellant.

Therefore, because the Agreement does not include an essential term, namely, a description of the subject matter, and because the Agreement is not signed by Mrs. Cook, see Austin & Bass Builders, Inc. v. Lewis, 359 S.W.2d 711, 715 (Mo. banc 1962), it is barred by the statute of frauds.

Appellant also argues that barring the Agreement by application of the statute of frauds would perpetrate a fraud. One equitable exception to the statute of frauds is to prevent perpetration of a fraud by application of the bar of the statute. Lederle v. Lederle, 916 S.W.2d 423, 428 (Mo.App. E.D.1996). This exception requires the party seeking enforcement of the contract to prove, at a minimum: (1) the performance of acts which constitute cogent evidence of the existence of the contract; (2) the terms of the contract by means of clear,...