Pride v. Lewis

• Citation: 179 S.W.3d 375
• Decision Date: 06 December 2005
• Docket Number: No. WD 65124.,WD 65124.
• Parties: Andrew Berton PRIDE and Joyce Kay Pride, Respondents, v. Larry L. LEWIS, Appellant.
• Court: United States State Supreme Court of Missouri

179 S.W.3d 375

Andrew Berton PRIDE and Joyce Kay Pride, Respondents, v. Larry L. LEWIS, Appellant.

No. WD 65124.

Missouri Court of Appeals, Western District.

December 6, 2005.

Kenneth C. Hensley, Raymore, MO, for Appellant.

Robert E. Sundell, Maryville, MO, for Respondents.

Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE and JAMES M. SMART, JJ.

ROBERT G. ULRICH, Presiding Judge.

Larry L. Lewis appeals the judgment of the Circuit Court of Nodaway County, Associate Circuit Division, finding that he breached a real estate contract and ordering him to pay damages in the amount of $20,900.00, such sum to bear interest at the rate of nine percent per annum. Mr. Lewis presents three points on appeal. First, he contends the trial court erred in finding a breach of contract because he and his wife were both intended to be parties to the contract but Mrs. Lewis never signed the contract. Second, Mr. Lewis contends the trial court's finding that a contract had been entered into was against the weight of the evidence because the sellers presented a counteroffer, thereby extinguishing Mr. Lewis's offer, and neither Mr. Lewis nor his wife accepted the counteroffer. Finally, Mr. Lewis contends that the trial court erred when it sustained the sellers' objection, based on relevance and the parol evidence rule, to a question asked by Mr. Lewis's counsel's question during trial. Mr. Lewis's second point is granted and the judgment of the trial court is reversed.

Facts

Andrew and Joyce Kay Pride, husband and wife, owned a house located in Nodaway County. In 2002, they moved to a farm and placed the house for sale with Priority One Realty. The house sat empty for some time; Mr. and Mrs. Pride then found a tenant to rent the house until such time as it sold. The tenant rented the house for a sum of $450 per month.

In April 2003, Mr. and Mrs. Pride were informed that Mr. Lewis made an offer to purchase the house for $55,000, with earnest money in the amount of $1500. During this time, Mr. Lewis was married to Issoline Lewis. The first contract offered by Mr. Lewis through his realtor required Mr. and Mrs. Pride to owner finance the transaction. This offer was rejected by Mr. and Mrs. Pride. Mr. Lewis's realtor then presented a second contract. Mr. and Mrs. Pride's realtor presented them with the second contract, already signed by Mr. Lewis and his realtor. This contract specified conventional bank financing would be used. The contract stated that Mr. and Mrs. Pride were selling the house to Larry and Issoline Lewis. Mr. Lewis signed the contract on April 9, 2003. His realtor also signed the contract, although the date is not indicated. Mrs. Lewis never signed the contract. Mr. and Mrs. Pride, as well as their realtor, signed the real estate contract on April 11, 2003. Upon signing the contract, Mr. and Mrs. Pride informed their tenant that she would have to vacate the house by June 1, 2003. The contract provided by Mr. Lewis had a closing date of May 15, 2003. Mr. and Mrs. Pride changed this date, by hand, to June 1, 2003. This change was initialed by Mr. and Mrs. Pride, but not by Mr. Lewis or Mrs. Lewis.

Mr. and Mrs. Pride became aware that there was a problem with closing on the property in June, when the closing was scheduled to occur. They, along with their realtor, were prepared to close on the property but neither Mr. Lewis, Mrs. Lewis, nor their realtor ever appeared. Mr. and Mrs. Pride's realtor contacted Mr. Lewis's realtor and was informed that Mr. Lewis had not responded to phone calls or otherwise communicated with his realtor. Mr. Lewis testified that he thought "they were going to try to [close] early June, and that's the last I knew." He further testified that he had been travelling and had attempted to contact his real estate agent a couple of times but, upon not reaching her, "opted to wait and let them contact me." When the closing with Mr. Lewis failed to occur, Mr. and Mrs. Pride sent him a letter notifying him of his default and their electing not to take the $1500 earnest money as damages.

After the closing with Mr. Lewis failed to occur, Mr. and Mrs. Pride re-listed the house with a realtor. Before Mr. Lewis made his offer, the house's listing price had changed several times; when the house was listed again, after the closing with Mr. Lewis failed to occur, the house was listed for $55,000 and the price never changed. The house sold in June 2004 for $40,000. This was the highest offer Mr. and Mrs. Pride received for the house. During the additional year the house was for sale, Mr. and Mrs. Pride were unable to secure another tenant to rent the property.

The two contracts offered by Mr. Lewis and the contract wherein the house actually sold for $40,000 were the only three offers ever made for the property. Mr. and Mrs. Pride's realtor testified that the house may have been worth only $40,000 when the offer for $40,000 was made and the subsequent sale occurred.

Mr. and Mrs. Pride sued Mr. Lewis for breach of contract. They sought damages for the difference between the $55,000 contract price with Mr. Lewis and the $40,000 for which the house actually sold, for the lost rent the year they were unable to find another tenant, and for attorney's fees, as provided in the contract. The trial court entered judgment in favor of Mr. and Mrs. Pride and awarded them $20,900 in damages. No findings of fact or conclusions of law were requested or made and the judgment recites "the Court finds that the allegations in Plaintiff's Petition are true."

Mr. Lewis's timely appeal followed.

Standard of Review

As set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), the judgment of the trial court will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Spencer Reed Group, Inc. v. Pickett, 163 S.W.3d 570, 573 (Mo.App. W.D.2005). As neither party requested and the trial court did not make specific findings of fact and law, the trial court is assumed to have made findings consistent with the judgment issued. Id. The evidence and all reasonable inferences drawn therefrom will be viewed in the light most favorable to the trial court's judgment, and all contrary evidence and inferences are disregarded. L.L. Lewis Constr., L.L.C. v. Adrian, 142 S.W.3d 255, 259 (Mo.App. W.D.2004). The trial court is the trier of fact and, as such, determines the credibility of witnesses and is free to believe or disbelieve all or part of witness testimony. Id.

This court is primarily concerned with the correctness of the result and not the route taken by the trial court to reach that result. Citibank (South Dakota), N.A. v. Mincks, 135 S.W.3d 545, 549 (Mo.App. S.D.2004). Because of this, the trial court's judgment will be affirmed under any reasonable theory supported by the evidence. Spencer Reed Group, Inc., 163 S.W.3d at 573. An appellate court will set aside a judgment on the grounds that it is against the weight of the evidence with caution and only with the firm belief that the judgment is wrong. State ex rel. Nixon v. Alternate Fuels, Inc., 158 S.W.3d 811, 813 (Mo.App. S.D.2005). Weight of the evidence refers to the evidence's weight in probative value or its effect in inducing belief, not its quantity. Austin v. Pickett, 87 S.W.3d 343, 346-47 (Mo.App W.D.2002). Further, the fact that there is evidence of testimony in the record which may have supported a different conclusion than that reached by the trial court does not demonstrate that the judgment is against the weight of the evidence. Silver Dollar City, Inc. v. Kitsmiller Constr. Co., 931 S.W.2d 909, 913 (Mo.App. S.D.1996). An appellate court independently evaluates the trial court's application of the law in determining whether there was a misapplication of the law. AAA Uniform & Linen Supply, Inc. v. Barefoot, Inc., 17 S.W.3d 627, 629 (Mo.App. W.D.2000).

Analysis

As resolution of Mr. Pride's second point is dispositive, it is the only point addressed in this opinion. In his second point on appeal, Mr. Lewis argues that the trial court's finding that a contract had been entered into was against the weight of the evidence. He contends that when Mr. and Mrs. Pride changed the closing date, they made a counteroffer for the sale of the real estate. He further argues that, because neither he nor his wife signed or initialed the change in closing date, he never accepted the counteroffer and thus there was no contract.

Before a plaintiff can establish a breach of contract, he or she must first establish the existence of a contract. Volker Court, LLC v. Santa Fe Apartments, LLC, 130 S.W.3d 607, 611 (Mo.App. W.D.2004). "A contract does not exist without a definite offer and a `mirror-image' acceptance." Id. Any acceptance that includes new or variant terms from the offer presented amounts to a counter-offer and a rejection of the original offer. Tirmenstein v. Cent. States Basement & Found. Repair, Inc., 148 S.W.3d 849, 851 (Mo.App. E.D.2004); Tower Props. Co. v. Allen, 33 S.W.3d 684, 688 (Mo.App. W.D.2000). The unequivocal acceptance of the offer is fundamental to the existence of a contract. Medicine Shoppe Int'l., Inc. v. J-Pral Corp., 662 S.W.2d 263, 269 (Mo.App. E.D.1983).

Mr. Lewis contends that Mr. and Mrs. Pride made a counteroffer when they changed the closing date from May 15, 2003, to June 1, 2003. While both Mr. and Mrs. Pride initialed this change, it was undisputed at trial that neither Mr. nor Mrs. Lewis initialed the change to the contract. Mr. and Mrs. Pride acknowledge that changing the closing date amounted to a counteroffer.

The question is, was the counteroffer ever accepted? Mr. Lewis argues that he never accepted this counteroffer, and, thus, there was no contract. Mr. and Mrs. Pride argue that Mr. Lewis accepted their counteroffer through his conduct and failure to act. They specifically list three facts that manifest Mr. Lewis's...