Kackley v. Burtrum, 21140
| Decision Date | 10 June 1997 |
| Docket Number | No. 21140,21140 |
| Citation | 947 S.W.2d 461 |
| Parties | Leon KACKLEY and Mary Kackley, Respondents, v. Norma BURTRUM, Appellant. |
| Court | Missouri Court of Appeals |
John M. Garrity, Susanna Jones, Garrity and Jones, Joplin, for appellant.
Henry S. Clapper, Monett, for respondents.
Plaintiffs, Leon Kackley and Mary Kackley, 1 sued Defendant, Norma Burtrum, praying for enforcement of an alleged contract wherein Defendant agreed to sell a parcel of real estate (on which a house is situated) to Plaintiffs. Defendant counterclaimed, seeking ejectment of Plaintiffs from the subject property, together with a monetary award for the fair rental value of the property during the time Plaintiffs occupied it.
The trial court heard the case without a jury. Plaintiffs produced no written contract, but presented evidence of an oral contract wherein (a) Defendant agreed to sell the property to Plaintiffs for $8,000, (b) Plaintiffs agreed to perform work for Defendant at specified rates, (c) the earnings due Plaintiffs from Defendant for the work were to be credited against the purchase price, and (d) Plaintiffs performed work entitling them to a $4,236 credit.
The trial court found for Plaintiffs and entered judgment commanding Defendant to convey the property to Plaintiffs upon payment by Plaintiffs to Defendant of $3,764. The trial court denied Defendant's counterclaim.
Defendant appeals.
Our review of this court-tried case is governed by Rule 73.01(c), 2 as construed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id. at 32.
Defendant testified she did not enter into any contract to sell Plaintiffs the property. Although the trial court found otherwise, the judgment contains no finding as to whether the contract was written or oral.
On appeal in a court-tried case, all fact issues upon which the trial court made no specific findings shall be considered as having been found in accordance with the result reached. Rule 73.01(a)(3); Reed v. Reberry, 883 S.W.2d 59, 61 (Mo.App. S.D.1994); Brown v. Mercantile Bank of Poplar Bluff, 820 S.W.2d 327, 334 (Mo.App. S.D.1991). The appellate court assumes the trial court believed the testimony consistent with its judgment. Matthews v. Moore, 911 S.W.2d 664, 668 (Mo.App. S.D.1995); In re Marriage of Dempster, 809 S.W.2d 450, 456 (Mo.App. S.D.1991).
In compliance with the authorities set forth in the preceding paragraph, we shall base our review in this appeal on the premise that the trial court found the contract between Plaintiffs and Defendant was oral, as Plaintiffs testified.
The law governing enforcement of an oral contract for the sale of real estate is set forth succinctly in Skaggs v. Dial, 861 S.W.2d 188 (Mo.App. W.D.1993), cited in Defendant's brief (and also in Plaintiffs' brief):
Skaggs, 861 S.W.2d at 191[3-5].
Defendant's sole point relied on reads:
Rule 84.04(d) reads, in pertinent part:
"The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous...."
The purpose of the rule and the necessity of obeying it are fully explained in the oft-cited case of Thummel v. King, 570 S.W.2d 679, 684-88 (Mo. banc 1978). Anyone drafting a point relied on can find guidance there.
The first sentence of Defendant's point relied on states the trial court erred in granting specific performance. Neither that sentence nor the two sentences which immediately follow it enlighten us as to wherein or why that ruling was erroneous. The only clue the first sentence provides is the averment that there was no claim of a written contract for the sale of the property or evidence of a written memorandum signed by the parties.
Skaggs, cited by Defendant, clearly explains that equity will decree specific performance of an oral contract for the sale of real estate if a party has acted to such a degree upon the contract that denying the party the benefit of it would be unjust. 861 S.W.2d at 191[3-5]. Consequently, where (as here) a record on appeal indicates that a trial court found the parties made an oral contract for the sale of real estate, an assignment of error averring there was no claim of a written contract or evidence of a memorandum signed by the parties sets forth no explanation as to wherein or why it was error for the trial court to grant specific performance.
The second sentence of Defendant's point relied on avers the trial court failed to apply the Statute of Frauds to the facts of this case. The third sentence of Defendant's point relied on avers that had the trial court properly applied the Statute of Frauds, specific performance would have been denied.
Nowhere in either of those sentences do we find any hint as to wherein or why it was error for the trial court to fail to apply the Statute of Frauds, nor do we discover any inkling as to wherein the trial court allegedly misapplied the Statute of Frauds.
It is thus manifest that the first three sentences of Defendant's point relied on fail to satisfy the requirements of Rule 84.04(d), hence they present nothing for review. Thummel, 570 S.W.2d at 684-88.
The final two sentences of Defendant's point relied on do not cure the deficiency. Those sentences merely state that had the trial court denied specific performance, the court would have ruled for Defendant on her counterclaim. While that is a reasonable hypothesis, it fails to set forth wherein or why the trial court erred in granting specific performance.
We therefore hold Defendant's point relied on presents nothing for our review. However, Rule 84.13(c) grants an appellate court discretion to consider plain errors affecting substantial rights, though not raised or preserved, if the appellate court finds that manifest injustice or miscarriage of justice has resulted therefrom. Accordingly, we have seined the argument portion of Defendant's brief in an effort to discover the theory of error she meant to assert in her point relied on--a task we are not obliged to undertake. Tripp v. Harryman, 613 S.W.2d 943, 950 (Mo.App. S.D.1981); Cole v. Cole, 516 S.W.2d 518, 520 (Mo.App.1974).
The argument portion of Defendant's brief refers to a segment of Skaggs, 861 S.W.2d at 191-92, which quotes a passage from Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024, 1028-29 (1912), setting forth eight elements of proof required for specific performance of an oral contract to convey real estate. Defendant points out that the fifth element is stated thus: "the proof of the contract as pleaded must be such as to leave no reasonable doubt in the mind of the chancellor that the contract as alleged was in fact made, and that the full performance, so far as lies in the hands of the parties to perform, has been had." 147 S.W. at 1028-29.
Three pages later in the argument portion of Defendant's brief, we find an averment that Plaintiffs' petition contains no allegation that Defendant agreed to sell the property.
Although Plaintiffs' petition is not a paradigm of precise draftsmanship, it can reasonably be read to plead that Defendant agreed to the sale. More importantly however, both Plaintiffs testified that Defendant agreed to sell the property to them for $8,000, and that Defendant agreed to give Plaintiffs credit against that sum for the work they did for Defendant. Defendant registered no objection to that testimony on the ground that it pertained to an unpled theory.
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