Reed v. Reberry

• Decision Date: 04 August 1994
• Docket Number: No. 19222,19222
• Citation: 883 S.W.2d 59
• Parties: Junior Elmer REED and Delores Ann Reed, Plaintiffs-Respondents, v. Eldora REBERRY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 59

883 S.W.2d 59

Junior Elmer REED and Delores Ann Reed, Plaintiffs-Respondents, v. Eldora REBERRY, Defendant-Appellant.

No. 19222.

Missouri Court of Appeals,

Southern District,

Division One.

Aug. 4, 1994.

Scott B. Stinson, Mountain Grove, for defendant-appellant.

Brad D. Eidson, Houston, for plaintiffs-respondents.

SHRUM, Judge.

In this quantum meruit case, the trial court ordered Eldora Reberry (Defendant) to pay $30,000 to Junior Elmer Reed and Delores Ann Reed, his wife, (Plaintiffs) for services performed by them for Defendant and her late husband, Raymond Reberry. Defendant appeals. We affirm.

FACTS

Plaintiffs are not related to Defendant or her late husband, Raymond. Initially their acquaintanceship was as neighbors and friends. In 1986, Defendant and her husband were living on their 80-acre farm in Wright County, Missouri, when they proposed that Plaintiffs "take care of them in return for their property." At trial, Plaintiff Delores Reed testified that the Reberrys' farm was their primary asset and the Reberrys specifically discussed it as part of what Plaintiffs were to receive for their services.

Plaintiffs agreed to the Reberrys' proposal and as part of the arrangement, they bought a mobile home and moved it to the Reberrys' 80-acre farm so that some member of Plaintiffs' family would constantly be available to provide care and assistance as agreed.

In January 1988, Raymond Reberry suffered a stroke that rendered him bedfast, incontinent, and in need of constant care. Delores Reed then stopped working at a nursing home and undertook the full-time care of Raymond Reberry at his home, a service that she performed with the aid of her family members until his death on May 29, 1989.

After Mr. Reberry's death, less was required of Plaintiffs because Defendant was healthy and active. However, Plaintiffs continued as agreed to live on the farm, assist and care for Defendant when needed, and provide her companionship. However, in October 1992, after a week's visit with her niece, Defendant moved away.

Plaintiffs then received a letter from Defendant's attorney, dated November 5, 1992, telling them that Defendant had "moved her personal residence to Willard, Missouri and has decided to sell her real estate ... (on which you are now residing)." Regarding their agreement, Defendant's lawyer asserted that Plaintiffs were "to take care of Mr. and Mrs. Reberry's physical needs and also take care of the real estate, and in exchange [Plaintiffs] would be allowed to live there rent free." He charged that Plaintiffs had breached their agreement by not providing her total care and not caring for the farm, thus entitling her to possession of the property. Continuing, Defendant's lawyer ordered Plaintiffs to remove their mobile home and belongings from Defendant's farm "as soon as possible" and told them electric service would be shut off on November 25, 1992. Accompanying the letter was a sixty-day eviction notice. Delores Reed testified that she and her husband were never allowed further contact with Defendant after she left her farm in October 1992.

Plaintiffs filed a two-count suit against Defendant, Count I for money damages on a quantum meruit theory and Count II for specific performance regarding the real estate. In her amended answer, Defendant alleged an oral "contract to make a will" in which she promised to will Plaintiffs whatever she owned at her death in return for their services. She further alleged that she had fulfilled her obligation by making a will containing such provisions in 1988, and, accordingly, Plaintiffs were not now entitled to payment because they had agreed to forego payment until Defendant died. By counterclaim, Defendant sought possession of the farm and damages based on unlawful detainer theory.

The trial court awarded Plaintiffs $30,000 on their quantum meruit count, refused to decree specific performance, and denied Defendant's counterclaim for unlawful detainer. Defendant appeals from that part of the judgment in which the trial court awarded damages. Plaintiffs do not appeal.

STANDARD OF REVIEW

Our review of a court-tried case is governed by Rule 73.01 as interpreted in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Thus, we will affirm the judgment of the trial court unless there is no evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 32. The trial court may believe all, part, or none of the testimony of various witnesses. Dukes v. Dukes, 859 S.W.2d 264, 268 (Mo.App.1993). On appeal we give due regard to the trial court's opportunity to judge the credibility of the witnesses. Estate of Moore, 802 S.W.2d 192, 194 (Mo.App.1991). All fact issues without specific findings in the court's judgment "shall be considered as having been found in accordance with the result reached," Rule 73.01(a)(3), and its judgment should be affirmed if the result was correct on any tenable basis. Brown v. Mercantile Bank of Poplar Bluff, 820 S.W.2d 327, 334 (Mo.App.1991).

DISCUSSION AND DECISION

In each of her three points relied on, Defendant prefaces her assignment of error with the proposition quoted in italics, thusly:

"I. Where the evidence established an express contract between the parties under which plaintiffs rendered services to defendant in exchange for defendant's promise to make a will to plaintiffs, the trial court erred in granting ... a money judgment based on quantum meruit while defendant was still alive, because plaintiffs' cause of action will not begin to accrue until the death of defendant.

"....

"II. Where the evidence established an express contract between the parties whereby defendant made a will to plaintiffs in exchange for personal services rendered by plaintiffs, the court erred in granting quantum meruit judgment to ... plaintiffs during defendant's lifetime, because the terms of the implied promise found by the trial court to exist were in direct conflict with the terms of the express contract alleged and proved, in that it was specifically agreed that defendant would never be required to pay monies to plaintiffs during her lifetime....

"....

"III. Where the evidence established an express contract between the parties under which defendant agreed to make a will to plaintiffs in exchange for plaintiffs' promise to render services and care for defendant for the rest of her life, the trial court erred in granting quantum meruit judgment to plaintiffs while defendant was still alive, in that defendant's conduct in moving off her farm and listing it for sale did not constitute a breach or repudiation by defendant, thereby entitling plaintiffs to rescind the contract and sue for damages."

Before we separately discuss each claim of error, we observe that Defendant's premise about what "the evidence established" appears to be based solely on the portion of the record that best supports her arguments. The "express contract" as outlined by Defendant is not among the findings of the trial court. In its judgment the trial court never used the word "contract," nor did it classify the "oral agreement" as either an "express" or "implied" agreement. Its only mention of a contract came via the phrase "oral agreement" in paragraph 11 of the judgment and the word "agreement" in paragraph 13. They read:

"11. Plaintiffs performed all of their obligations under the oral agreement with Defendant and did not breach said agreement with Defendant.

"....

"13. Plaintiffs reside in a mobile home which they own and which is located on said real estate pursuant to their agreement with the Defendant." (Emphasis ours.)

Given the paucity of specific findings regarding the oral agreement, we examine the record to find whether Defendant's version of the agreement is the only one supported by the evidence. We conclude it is not.

There is ample evidence in the record to support findings that the oral agreement between the parties was more than what is claimed by Defendant. Findings supported by the evidence in this record include (1) Defendant and her husband promised the 80-acre farm, free of debt and probate claims, as a defined part of the total consideration that Plaintiffs were to be paid for their services, and (2) Plaintiffs were to perform their services at the farm to fulfill the Defendant's requirement that she stay on the farm, either in her house or Plaintiffs' house, until she died. Such findings are far different in their consequences than is Defendant's claim that her sole obligation was to make a will for whatever she might own at her death.

Evidence that supports the foregoing findings includes the following.

"Q. (to Delores Reed) Is it your position that [Defendant] shouldn't have the right to sell that farm?

A. I think that that farm is rightly ours considering that it was told us that it would be ours for the services we provided and we provided those services.

....

Q. ... [B]ut you discussed that didn't you, the fact she couldn't pay you. [Defendant] told you that, didn't she?

A. We discussed that no wages would be given us at that time and that we would get the land and her belongings in lieu of the wages for our things that we did for them when she passed away.

....

Q. Mrs. Reed, at all times for six and a quarter years, any time there was ever a discussion about what you would receive at Mrs. Reberry's death, the farm was mentioned, wasn't it?

A. Yes, it was.

Q. The farm was always a part of the specific agreement about what you were to receive at their death?

A. Yes.

....

Q. That she wanted to stay on the farm until the date of her death?

A. Yes, she in one particular thing it was in her home or our home which meant the farm." (Emphasis ours.)

Plaintiffs placed in evidence exhibits 8 and 9, identified as documents handwritten by Defendant. They also placed in evidence exhibit 10, a beneficiary deed dated June 28, 1990, in which Defendant conveyed her farm to Plai...