Rabius v. Brandon, No. WD 67890.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtAlok Ahuja
Citation257 S.W.3d 641
Decision Date01 July 2008
Docket NumberNo. WD 67890.,No. WD 67921.
PartiesM. William RABIUS, Appellant-Respondent, v. Larry BRANDON and Cheryl Brandon, Respondent-Appellants.
257 S.W.3d 641
M. William RABIUS, Appellant-Respondent,
v.
Larry BRANDON and Cheryl Brandon, Respondent-Appellants.
No. WD 67890.
No. WD 67921.
Missouri Court of Appeals, Western District.
July 1, 2008.

[257 S.W.3d 642]

Mark D. Murphy, Overland Park, KS, for appellant-respondent.

Danne W. Webb, Kansas City, MO, for respondent-appellants.

Before VICTOR C. HOWARD, C.J., JAMES E. WELSH, and ALOK AHUJA, JJ.

ALOK AHUJA, Judge.


M. William ("Bill") Rabius appeals the trial court's judgment against him on Count II of his Petition, which alleged that Larry and Cheryl Brandon breached a settlement agreement contract. The trial court found that Mr. Rabius could not recover on this claim because it was based on an assignment that was insufficiently specific to transfer to him any legal rights of his former spouse under the Settlement Agreement. Because we find that the trial court erred in its interpretation of the assignment, we reverse and remand for further proceedings.

257 S.W.3d 643
I. Factual Background

In 1990, Sterling Homes, Inc. was in the business of developing residential housing. Bill Rabius and Larry Brandon were the only shareholders of Sterling, but both of their wives, Sharon Rabius and Cheryl Brandon, were an integral part of Sterling's business.

After building a number of homes, the members of Sterling decided to terminate the business. Accordingly, Bill and Sharon Rabius, along with Larry and Cheryl Brandon, entered into a Settlement Agreement on September 1, 1990, to govern the termination of Sterling's business affairs. Among other things, the Settlement Agreement deeded to Sharon Rabius three completed residential units and their corresponding debt, in order for her to sell these units. The Settlement Agreement specified how the sale proceeds should be allocated, including paying various debts, costs, expenses, interest and fees. The Settlement Agreement provided in Paragraph Seven that the Brandons would be liable for, among other things, one half of certain expenses Bill or Sharon Rabius incurred in winding up Sterling's affairs. In addition, under the Settlement Agreement the Brandons executed and delivered to Sharon Rabius an interest-bearing Promissory Note in the amount of $6,000.00.

The Rabiuses apparently incurred substantial expenses subject to Paragraph Seven which could not be recouped from the sale of the Units.1

In 1993, Bill and Sharon Rabius divorced. In dividing their assets, Sharon Rabius executed a written Assignment to Bill Rabius on December 15, 1993. The Assignment stated that Sharon Rabius assigned (1) "any and all of the right, title and interest I have in and to" the September 1, 1990 Promissory Note, and (2) "all of the right, title and interest I have in and to a receivable from Larry and Cheryl Brandon created in a 9/1/90 Agreement between them, myself and M. William Rabius."

On March 12, 2002, Mr. Rabius filed his Verified Petition for Damages in Jackson County Circuit Court against Larry and Cheryl Brandon. The Petition contained two counts,2 both alleging breach of contract. Count I alleged that the Brandons had not paid the principal ($6,000.00) and interest owing under the Promissory Note. Count II alleged that the Brandons had not paid their share of Bill and Sharon Rabius's unrecouped expenses and debt owed under Paragraph Seven of the Settlement Agreement. The Petition alleged that the Brandons were liable to Mr. Rabius based in part on the contractual rights that were transferred to him by his ex-wife, Sharon, in the Assignment.

The case was tried to the court on October 3-4, 2005.3 On December 11, 2006, the trial court issued an Amended Judgment containing detailed findings of fact and

257 S.W.3d 644

conclusions of law. On Count I (breach of the Promissory Note), the trial court found in Mr. Rabius' favor, and awarded him $16,019.88 plus post-judgment interest. Additionally, the trial court awarded Mr. Rabius costs, expenses and attorneys fees of $8,000.00 "for collecting and enforcing the note under Count I of Plaintiff's petition."

However, the trial court found in favor of the Brandons on Count II (breach of the Settlement Agreement). The court concluded that the Assignment of "a receivable" to Mr. Rabius "does not sufficiently identify the subject matter sought to be assigned so as to vest in [Mr. Rabius] all the rights of Sharon Rabius in and to the Settlement Agreement," and therefore "such purported assignment is ineffective and not enforceable."4

II. Analysis

On appeal, Mr. Rabius argues that the trial court erred in entering judgment against him on Count II on the basis that the Assignment was insufficiently specific and thus unenforceable. The Brandons cross-appeal. They first argue that the trial court erred in entering judgment for Mr. Rabius on Count I because his claim under the Promissory Note is barred by the doctrine of laches. In their second Point the Brandons argue that the trial court erred in denying their request for costs and attorneys fees, since they were the substantially prevailing parties in the litigation as a whole.

For the reasons stated below, we reverse and remand the trial court's ruling on Count II of Mr. Rabius's Petition; the trial court's enforcement of the Promissory Note under Count I is affirmed.

A. Mr. Rabius' Appeal

Count II of Mr. Rabius's Petition, alleging breach of the Settlement Agreement, was predicated in part on his rights pursuant to an Assignment from his ex-wife, Sharon Rabius, concerning "a receivable" owed to Sharon by the Brandons under the Sterling Settlement Agreement. The Assignment stated in full:

ASSIGNMENT

For Value Received and pursuant to that certain "Modification of Property Settlement Agreement" date December 15, 1993, I Sharon K. Rabius, of 12737 W. 110 Terrace, Overland Park, Kansas, hereby assign transfer and set over to Maurice William Rabius, Jr. of 11204 Foster, Overland Park, Kansas, and to his successors and assigns, any and all of the right, title and interest I have in and to a 9/1/90, $6,000.00 Promissory Note from Larry and Cheryl Brandon to Sharon K. Rabius and any and all of the right, title and interest I have in and to a receivable from Larry and Cheryl Brandon created in a 9/1/90 Agreement between them, myself and M. William Rabius.

(underlining original).

The trial court concluded that the Assignment did not effectively convey to Mr. Rabius his wife's right to reimbursement under Paragraph Seven of the Sterling Settlement Agreement, because the Assignment was ambiguous, and extrinsic evidence did not resolve the purported ambiguity. We disagree.

The resolution of this appeal turns on the application of several well-settled

257 S.W.3d 645

principles of contract law.5 First, "[t]he question of whether a contract is ambiguous and the interpretation of the contract itself are issues of law that are reviewed de novo on appeal." Executive Bd. of Mo. Baptist Convention v. Carnahan, 170 S.W.3d 437, 447 (Mo.App. W.D.2005)(citing Sonoma Mgmt. Co. v. Boessen, 70 S.W.3d 475, 479 (Mo.App. W.D.2002)).

"A contract is ambiguous when we find that `it is reasonably susceptible to different constructions.'" Monsanto Co. v. Garst Seed Co., 241 S.W.3d 401, 407 (Mo. App. E.D.2007) (quoting J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. banc 1973)). "`An ambiguity exists when there is duplicity, indistinctness, or uncertainty in the meaning of the language in the policy.'" Ethridge v. Tierone Bank, 226 S.W.3d 127, 131 (Mo. banc 2007) (quoting Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007)). "`A contract is not ambiguous merely because the parties disagree as to its construction.'" Id. (quoting State ex rel. Vincent v. Schneider, 194 S.W.3d 853, 860 (Mo. banc 2006)). Instead, "`[t]he test for ambiguity is whether the disputed language is reasonably susceptible of more than one meaning when the words are given their plain meaning as understood by an average person.'" Lacey v. State Bd. of Registration for the Healing Arts, 131 S.W.3d 831, 839 (Mo.App. W.D.2004) (emphasis added) (quoting Daniels Express & Transfer Co. v. GMI Corp., 897 S.W.2d 90, 92 (Mo.App. E.D.1995)). "[C]ourts are prohibited from creating ambiguities by distorting contractual language that may otherwise be reasonably interpreted." Care Ctr. of Kansas City v. Horton, 173 S.W.3d 353...

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    ...unless it cannot be avoided, language should not be interpreted to nullify contractual [631 F.3d 533] provisions.” Rabius v. Brandon, 257 S.W.3d 641, 645–46 (Mo.App.2008). Further, the subcontract expressly states that partial payment will not constitute acceptance of a subcontractor's work......
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    ...susceptible of more than one meaning when the words are given their plain meaning as understood by an average person." Rabius v. Brandon, 257 S.W.3d 641, 645 (Mo.Ct.App.2008) (quoting Lacey v. St. Bd. of Registration for the Healing Arts, 131 S.W.3d 831, 839 (Mo.Ct.App.2004)).Dubinsky v. Me......
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    ...susceptible of more than one meaning when the words are given their plain meaning as understood by an average person." Rabius v. Brandon, 257 S.W.3d 641, 645 (Mo.Ct.App.2008) (quoting Lacey v. St. Bd. of Registration for the Healing Arts, 131 S.W.3d 831, 839 (Mo.Ct.App.2004)).Dubinsky v. Me......
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10 cases
  • The Weitz Co. v. Mh Wash., Nos. 09–3116
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 15, 2011
    ...unless it cannot be avoided, language should not be interpreted to nullify contractual [631 F.3d 533] provisions.” Rabius v. Brandon, 257 S.W.3d 641, 645–46 (Mo.App.2008). Further, the subcontract expressly states that partial payment will not constitute acceptance of a subcontractor's work......
  • Dubinsky v. Mermart, LLC, No. 09-2072.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 10, 2010
    ...susceptible of more than one meaning when the words are given their plain meaning as understood by an average person." Rabius v. Brandon, 257 S.W.3d 641, 645 (Mo. Ct.App.2008) (quoting Lacey v. St. Bd. of Registration for the Healing Arts, 131 S.W.3d 831, 839 In this case, the Indenture and......
  • Edmonds Grp. LLC v. Platinum Prot. LLC, Case No. 4:10CV2317 HEA
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • August 8, 2011
    ...susceptible of more than one meaning when the words are given their plain meaning as understood by an average person." Rabius v. Brandon, 257 S.W.3d 641, 645 (Mo.Ct.App.2008) (quoting Lacey v. St. Bd. of Registration for the Healing Arts, 131 S.W.3d 831, 839 (Mo.Ct.App.2004)).Dubinsky v. Me......
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    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
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    ...susceptible of more than one meaning when the words are given their plain meaning as understood by an average person." Rabius v. Brandon, 257 S.W.3d 641, 645 (Mo.Ct.App.2008) (quoting Lacey v. St. Bd. of Registration for the Healing Arts, 131 S.W.3d 831, 839 (Mo.Ct.App.2004)).Dubinsky v. Me......
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