Sharpton v. Lofton

• Decision Date: 16 December 1986
• Docket Number: No. 50991,50991
• Citation: 721 S.W.2d 770
• Parties: James R. SHARPTON and Melba I. Sharpton, Plaintiffs-Appellants, v. Gerald J. LOFTON, Jacqueline Lofton, Patsy J. Richter and Aetna Casualty and Surety Co., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 770

721 S.W.2d 770

James R. SHARPTON and Melba I. Sharpton, Plaintiffs-Appellants, v. Gerald J. LOFTON, Jacqueline Lofton, Patsy J. Richter and Aetna Casualty and Surety Co., Defendants-Respondents.

No. 50991.

Missouri Court of Appeals,

Eastern District,

Division Three.

Dec. 16, 1986.

Leonard Lomen, St. Louis, for plaintiffs-appellants.

Richard K. Zerr, St. Charles, for defendants-respondents.

KAROHL, Judge.

This appeal arises from plaintiff-grantors' attempt to set aside a general warranty deed to defendants Gerald and Jacqueline Lofton as grantees. Grantors, James and Melba Sharpton, also sought money damages from the Loftons for fraud in inducing plaintiffs to execute the sale contract and deed, and claimed damages for breach of oral contract promising to provide personal services to plaintiffs as additional consideration for the land. Finally, plaintiffs sought damages against defendant Patsy Richter, a notary public, and her surety, Aetna Casualty and Surety Company, because Ms. Richter notarized plaintiffs' signatures on the general warranty deed without plaintiffs personally appearing before her.

Defendants Lofton counterclaimed against plaintiffs alleging they had breached an express covenant in the warranty deed to defend title and an implied covenant of quiet enjoyment by filing this suit and two related notices of lis pendens. The case was tried in equity and the court entered judgment against plaintiffs on their entire petition and in favor of all defendants and found for defendants Lofton on their counterclaim. The court entered judgment for $3,000 in actual damages and $1,000 in punitive damages. Pursuant to plaintiffs' motion, the trial court later reduced the judgment for actual damages to $1,500 and the punitive damages to $1. Plaintiffs appeal. We affirm in part and reverse in part.

Plaintiffs James and Melba Sharpton are senior citizens residing in St. Louis County. Mr. Sharpton was 86 years old and Mrs. Sharpton was 75 years old during trial. The Sharptons have little formal education; Mr. Sharpton completed the fourth grade and Mrs. Sharpton may have finished the fifth. Before retiring, Mr. Sharpton was in the landscaping business which entailed driving a truck, laying sod and landscaping. Over his life, he bought two parcels of land and sold one before engaging in the transactions at issue. He considers himself intelligent, manages his own affairs and knew what he was doing while dealing with the Loftons. Mrs. Sharpton has become increasingly disabled over the years due to arthritis, surgery in 1981 and a stroke in 1983. Mr. Sharpton had to assume all the household chores and care for his wife, which became increasingly difficult as he aged.

The Loftons are much younger than the Sharptons. Mr. and Mrs. Sharpton had known Mrs. Lofton for about fifteen years. They were social friends when Mrs. Lofton was married to her previous husband. After her divorce, Mrs. Lofton moved away for a year then returned and married Mr. Lofton. She resumed visiting the Sharptons, seeing them several times each week.

The Sharptons owned an unimproved one acre lot adjacent to their home. This adjacent lot was worth about $15,000. In March, 1982, the Sharptons signed a written contract to sell this lot to a neighbor for $15,500. After the contract was signed, Mr. Sharpton found out the neighbor was planning to fence in the lot for his dog. Mr. Sharpton requested that the neighbor "return the lot back to us because [the dog] was too close and would annoy the wife." Mr. Sharpton recognized that the neighbor "could have held me to the lot if he had wanted to."

About a month later, Mr. Sharpton initiated discussions with the Loftons about selling the lot to them. Mr. Sharpton thought that if he sold the lot for a lower price, then the Loftons would help him to take care of his wife and home. He wanted the Loftons to build their house on the purchased lot so that they could be available to help him. He offered to sell the lot to the Loftons for $3,000. They accepted. Three thousand dollars was the entire consideration recited in the contract, although Mr. Sharpton understood that the additional consideration would be that "she would help me take care of the wife and he would help me take care of the yard."

The Loftons and the Sharptons had many conversations regarding this transaction over the next two months, but the exact consideration for the sale remained vague. Mrs. Lofton visited frequently and testified that she always offered to help Mr. Sharpton. She expected that she might continue to be able to help him from time to time. The Loftons testified, however, that the only personal services they ever agreed to was to be sure plaintiffs were buried properly after their deaths. The Sharptons knew that the Loftons lived in St. Charles, worked full time and could not be readily available to help them until they built their new house on the purchased lot.

On June 22, 1982, the Loftons came by the Sharptons' home and brought the sale contract which Mrs. Lofton had arranged to have drafted by a real estate agent, a friend of hers. The contract specified only the purchase price and did not mention any agreement to take care of the Sharptons. All parties knew that the market value of the land was substantially greater than the purchase price. The parties signed the contract and deed.

Mr. Sharpton both denied and admitted his signature and that of his wife. Both plaintiffs recalled signing only one document, the deed, although two signatures were on both the deed and the contract. Mr. Sharpton said that he understood the significance of what he was doing, had sold real estate before, but called the sales contract a "sales slip" and appeared confused regarding the effect of the sale. Defendants produced a qualified hand-writing expert at trial who identified the signatures as those of plaintiffs.

The documents were not notarized when signed. A few days later, Mrs. Lofton took them to her friend, defendant Patsy Richter, who was a notary public. Ms. Richter admitted that she notarized the plaintiffs' signatures without having plaintiffs before her or telephoning them to verify the signatures. The Sharptons testified that Mrs. Lofton was to bring a notary to their house later to notarize the signatures. Mrs. Lofton testified that she offered to have a notary come over to the Sharptons' house, but that Mr. Sharpton refused because the house was too dirty saying, "Oh, Jackie, you don't have to do that. Just I will sign it and the wife here will sign it, and you just get it notarized and give me the $3,000 and everything will be fine."

In August or September of 1982, Mr. Sharpton approached Mrs. Lofton and asked her to give the lot back. His motivation was disputed. Mr. Sharpton said that, after they signed the "sales slip," he saw Mrs. Lofton only two or three more times at his home but this was because "I told her to stay away from there." Since the deed and contract were signed, Mr. Sharpton testified that Mr. Lofton took care of cutting the lot's grass, but that he "didn't want anything more to do with [Mr. Lofton] because he wasn't doing what he was supposed to be." Apparently, Mr. Lofton had told a neighbor that he would not push a lawn mower for "that old man." Mr. Lofton wanted to use a riding mower. This remark made Mr. Sharpton angry. A month or so later, Mr. Sharpton wanted to cancel the deed because "I found out there was something fishy about this deed that wasn't signed ... by a notary public." In his deposition, denied at trial, Mr. Sharpton said that he told Mrs. Lofton that "I didn't want [Mr. Lofton] around no more." Finally, Mr. Sharpton complained at trial that the Loftons failed to "get things done", that they went bowling and watched football games each weekend instead of helping him.

Mrs. Lofton testified that Mr. Sharpton just asked her to see that "they were put away properly." She recalled no mention, during their many discussions, of Mr. Sharpton's desire that she and her husband perform personal services for the Sharptons. She did agree, during cross-examination, that she expected that she "might be able to help him out or help him from time to time." The Loftons put their home up for sale but could not begin constructing their new home on the lot, as Mr. Sharpton wanted, until their present home was sold. Mr. Sharpton asked for the lot back between 60 and 90 days after the documents were signed because he became angry with Mr. Lofton.

Mr. Sharpton asked for the lot back, was refused, then hired an attorney to set the deed aside. Mr. Sharpton also had his attorney file two notices of lis pendens, the second substituted for the first, in order to "block" the Lofton's use of the lot.

On appeal, the Sharptons assert six claims of error: 1) that they were entitled to summary judgment absent affidavits from the Loftons maintaining a disputed factual issue; 2) they were entitled to a summary judgment to void the deed because the notary undisputedly failed to notarize the documents in plaintiffs' presence and by their authority; 3) the court's judgment for the Loftons on plaintiffs' claim of fraud was against the weight of the law and evidence; 4) the judgment for the Loftons on plaintiffs' breach of oral contract claim was against the weight of the law and evidence; 5) the judgment for the notary and her surety on plaintiffs' claims was contrary to the law and evidence; 6) the court erred in finding for the Loftons on their counterclaim for slander of title because the first lis pendens did not constitute slander of title, the second notice caused no damage and both filings are privileged. We affirm in part and reverse in part, addressing plaintiffs' points in order.

The Sharpton's first two points assert error in denying their motions for partial summary judgment which requested the court to order the recorded deed removed from the records of the recorder's office because...