Peet v. Randolph

• Decision Date: 07 November 2000
• Parties: (Mo.App. E.D. 2000) Frederick J. Peet and Judith S. Keen, Appellants, v. George Randolph and Cecelia Randolph, Respondents ED77184
• Court: Missouri Court of Appeals

33 S.W.3d 614 (Mo.App. E.D. 2000)

Frederick J. Peet and Judith S. Keen, Appellants, v. George Randolph and Cecelia Randolph, Respondents

ED77184

Missouri Court of Appeals Eastern District

11/07/2000

Appeal From: Circuit Court of Franklin County, Hon. Walter A. Murray

Counsel for Appellant: John G. Young, Jr.

Counsel for Respondent: Frank K. Carlson

Opinion Summary: Frederick J. Peet for himself and as assignee of co-plaintiff Judith S. Keen (collectively referred to as "Purchasers") appeals the trial court's grant of summary judgment in favor of George and Cecelia Randolph (collectively referred to as "Sellers") in Purchasers' suit against Sellers for specific performance of a real estate sales contract.

Division Three Holds: (1) The trial court erred in ruling there was no genuine issue of material fact as to whether the subject realty was adequately described; (2) the trial court erred in ruling the right-of-first-refusal clause was not enforceable and that there was no final agreement as to that clause; and (3) the Statute of Frauds does not justify the grant of summary judgment.

Lawrence E. Mooney, Judge

Opinion modified by Court's own motion on November 14, 2000. This substitution does not constitute a new opinion.

The question we must decide is whether a real estate contract lacked such definiteness and finality that it was incapable of specific performance, thereby justifying summary judgment. Because we conclude the issue is fairly disputable, we reverse summary judgment and remand for a trial on the merits.

Frederick J. Peet (Peet), for himself and as assignee of co-plaintiff Judith S. Keen (Keen) (collectively referred to as Purchasers), appeals from summary judgment entered in favor of George Randolph (Mr. Randolph) and Cecelia Randolph (Mrs. Randolph) (collectively referred to as Sellers) in Purchasers' suit against Sellers for specific performance of a real estate sales contract. Purchasers argue that the trial court erred in granting summary judgment because: (1) Rule 74.04(c) was not followed; (2) there was a genuine issue of material fact concerning the realty in the real estate sale contract such that the identification of the realty to be conveyed was certain; and (3) the real estate sale contract did include all of the essential terms necessary to the parties' agreement on the right of first refusal and the fact that a document needed to be executed by the parties for recording purposes at the time of the closing was not fatal to a claim for specific performance.

Facts

Purchasers and Sellers entered into a real estate sales contract involving Sellers' 140-acre farm in Franklin County. The petition asserts the contract included: (1) Exhibit A, the Residential Sale Contract dated May 23, 1996; (2) Exhibit B, the Supplemental Agreement to Contract dated May 23, 1996; (3) Exhibit C, an aerial photo with the 120-acre property outlined and the approximate boundaries for the 20-acre parcel; and (4) Seller's Disclosure Statement. Sellers planned to retain a 20-acre parcel adjoining their son's property.

The Residential Sale Contract described the property to be sold as follows: "120 acres and All Improvements as per MLS Listing #532264, 3547 Hwy EE, Beaufort, Mo. Legal to govern." The handwritten terms of the Supplemental Agreement included, inter alia:

_Survey: Buyer acknowledges orig. tract is 140 A. Seller, with P&Z approval, is retaining no more than 20 A. Seller agrees to have corners of 20 A. tract marked at his expense. Excepting the prior mentioned 20 A tract, Buyer accepts the property lines as per existing plat.

_Buyers to have first right of refusal to any offer on the above mentioned 20 A tract if said tract is ever sold, wholly or in part, written first right of refusal to be executed at the time of closing of this contract.

Purchasers agreed to buy from Sellers approximately 120 acres for $270,000. Purchasers were ready, willing, and able to close although Sellers failed to appear at closing. Mr. Randolph claimed he could prevent closing by neglecting his duty to have the property surveyed.

Purchasers filed suit seeking specific performance, and after substantial discovery on both sides, Sellers filed a motion for judgment on the pleadings against Peet and a motion to dismiss against Keen. In both motions, Sellers claimed the contract was not enforceable because (1) it fails to identify with sufficient particularity the realty to be conveyed; and (2) it is contingent upon the parties' future agreement on an instrument yet to come into existence, the right of first refusal. Purchasers filed a response including excerpted deposition testimony of Sellers' real estate agent.

Thereafter, the trial court conducted a hearing on the motions at which Sellers presented several evidentiary items. The evidence included Sellers' partial deposition testimony, Peet's partial deposition testimony, a 182-acre plat map of the farm, and the photo contained in Exhibit C. The court advised the parties that pursuant to Rule 55.27(b), it would consider the Sellers' motions as motions for summary judgment and set a further briefing schedule.

After receiving briefs from both parties and additional evidence from Purchasers, the trial court entered summary judgment in favor of Seller. It found that "the purported contract on which Plaintiffs' suit is based fails to adequately describe the subject realty," and further that "the purported contract is dependent upon a document yet to come into evidence, as to the contents of which the parties have no agreement whatsoever." Peet filed "Separate Plaintiff Frederick J. Peet's Motion for Reconsideration and to Amend Judgment" with attached affidavits of Sellers' agent and a registered land surveyor. The motion was heard and denied by the court. This timely appeal follows.¹

Analysis

We review the trial court's grant of summary judgment in favor of Sellers de novo. ITT Commercial Finance Corp., et al. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). To succeed on a motion for summary judgment, the movant must show there is no genuine issue of material fact and that movant is entitled to judgment as a matter of law. Id. at 380. The record is viewed in the light most favorable to the non-movant, who is given the benefit of all reasonable inferences. Id. at 382. "Therefore, it is not the 'truth' of the facts upon which the court focuses, but whether those facts are disputed." Id. Because our disposition of Points II and III require a remand, we need not address Purchasers' claim on Point I that the trial court failed to follow proper summary-judgment procedure.

I: Insufficient Description of Land

Purchasers allege the trial court erred when it determined that the real estate contract failed to adequately describe the subject realty. To obtain specific performance, a contract must not be indefinite, uncertain, or incomplete. Biggs v. Moll, 463 S.W.2d 881, 887 (Mo. banc 1971). It must provide the essential terms and be enforceable without adding to its terms for a court will not make a contract for the parties. Assemblies of God v. Hendricks, 807 S.W.2d 141, 146 (Mo.App. S.D. 1991). A sufficient description of real property is one of the essential terms of a contract for the sale of real property. Id. However, "[t]he land does not need to be fully and actually described in the paper; but the writing must afford the means whereby the identification may be made perfect and certain through parol evidence." Herzog v. Ross, 196 S.W.2d 268, 270 (Mo. banc 1946).

Applying these principles to this case, we find a genuine issue of material fact exists as to whether the subject realty was adequately described. Sellers' and Buyers' agents and Peet testified that the contract included Exhibits A, B, and C and that the Sellers not only knew the lines on Exhibit C represented the retained 20-acre parcel, but also that Sellers participated in drawing those lines.

Sellers dispute that they had ever discussed where the 20-acre parcel would be located or that they had any part in drawing the lines on Exhibit C. Furthermore, Mr. Randolph stated he believed the "existing plat" referred to the 182-acre plat map that no one else had ever seen or even knew about. However, at another deposition, Mr. Randolph testified that at around the time of signing, he and a surveyor marked on an aerial map where the 20 acres would be located.

Viewing the record in the light most favorable to Purchasers, there is a genuine issue of material fact as to whether Exhibit C was part of the contract and whether the lines on it provide a sufficient description of the real estate for specific performance.

II: Right of First Refusal

Purchasers allege the trial court erred when it entered summary judgment for Sellers since the right-of-first-refusal clause was specific enough to enforce and the parties agreed on that clause. Purchasers argue the clause is enforceable because only a formality remained of executing a document for recordation and the real estate contract contained all the essential terms necessary to the parties' agreement on the right of first refusal. Furthermore, Purchasers dispute the trial court's finding that there was no meeting of the minds regarding the right of first refusal.

First, we address the issue of enforceability. Other jurisdictions have held clauses similar to the one in this case are specific enough to be enforced. Winberg v. Cimfel, 532 N.W.2d 35 (Neb. 1995); Briggs v. Sylvestri, 714 A.2d 56 (Conn.App. 1998). Right-of-first-refusal clauses are often stated in general terms because the right may be exercised at some remote time in the future. Auerbach v. County of Hanover, 478 S.E.2d 100 (Va. 1996). Missing terms such as the price of the land or the duration of the right does not render the clause unenforceable. Kellner v . Bartman, 620 N.E.2d 607, 611-612 (Ill.App.Ct. 1993). Moreover, in upholding a general...