Shell v. Shell, WD 30899.

• Decision Date: 02 September 1980
• Docket Number: No. WD 30899.,WD 30899.
• Citation: 605 S.W.2d 185
• Parties: Kenneth SHELL and Dorothy Shell, Plaintiffs-Appellants, v. Raymond SHELL and Dorothy Farrell, as Co-executors of the Estate of Purl D. Shell, Raymond Shell and Dorothy Farrell, as Individuals, Benjamin Farrell, Jr. and Nancy L. Farrell, Nodaway Valley Bank of Maryville, Missouri, Carl Graham, Ed Brown and Ambrose Berg, Defendants-Respondents, v. Ada Mae NELSON, Helen Rice, Bonnie Lee Heriford, Danny James Shell, Kirby Shell, Dinah Shell Gaa, Rudy Shell (Deceased, by Eldon H. Asbell, Administrator of the Estate of Rudy Shell), and Dixie Shell Barber (Michael), Third-Party Defendants-Respondents.
• Court: Missouri Court of Appeals

605 S.W.2d 185

Kenneth SHELL and Dorothy Shell, Plaintiffs-Appellants, v. Raymond SHELL and Dorothy Farrell, as Co-executors of the Estate of Purl D. Shell, Raymond Shell and Dorothy Farrell, as Individuals, Benjamin Farrell, Jr. and Nancy L. Farrell, Nodaway Valley Bank of Maryville, Missouri, Carl Graham, Ed Brown and Ambrose Berg, Defendants-Respondents, v. Ada Mae NELSON, Helen Rice, Bonnie Lee Heriford, Danny James Shell, Kirby Shell, Dinah Shell Gaa, Rudy Shell (Deceased, by Eldon H. Asbell, Administrator of the Estate of Rudy Shell), and Dixie Shell Barber (Michael), Third-Party Defendants-Respondents.

No. WD 30899.

Missouri Court of Appeals, Western District.

September 2, 1980.

Frank H. Strong, Roger M. Prokes, Maryville, for plaintiffs-appellants.

W. H. Utz, Jr., Frank Thackery, St. Joseph, for defendants-respondents Raymond Shell and Dorothy Farrell, as Co-Executors of the Estate of Purl D. Shell and as Individuals.

Larry L. Zahnd, Maryville, for defendants-respondents Nodaway Valley Bank, Carl Graham, Ed Brown, Ambrose Berg.

J. Nelson Happy, Kansas City, for third-party defendants-respondents Ada Mae Nelson and Bonnie Lee Hertford.

John H. Fraze, Maryville, for third-party defendant-respondent Eldon H. Asbell, Adm. of the estate of Rudy Shell.

James W. Whan, Maryville, for defendants-respondents Benjamin Farrell and Nancy L. Farrell.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

CLARK, Presiding Judge.

In this multiple-party, multiple-claim action arising out of a real estate contract for the sale of farm property, three counts of plaintiffs' five-count petition were severed for separate trial to the court. The judgment was adverse to plaintiffs' contentions that reformation and other relief be granted them and, after designation of that judgment under Rule 81.06 as final for purposes of appeal, plaintiffs now contend error in the result adjudged. Upon the grounds hereafter stated, the appeal is dismissed as premature.

A statement of facts and recitation of the claims, cross claims and counterclaims by the numerous parties to this action cannot be avoided because these details are pertinent to analysis of the dispositive question-are the detached claims of the plaintiffs susceptible of final, independent resolution? Also requiring consideration is the related question of the latitude which Rule 81.06 accords the trial court to designate partial judgments as final and, hence, to present cases for appellate review piecemeal.

The present controversy had its inception on December 9, 1974, when Purl D. Shell entered into an agreement for a deferred sale to his sons, Kenneth and Raymond, of approximately 385 acres of land in Nodaway County. Purl Shell was a widower at the time and of advanced age. The agreement gave Kenneth and Raymond the opportunity to acquire the real estate during a period of nineteen months following the death of Purl Shell. The price was to be ascertained by appraisal as of the date of death and the sale proceeds were to be distributed by the executors of the estate as provided in Purl Shell's will.

Although the agreement provided only for a sale of the entire tract to both sons, a division of the property had apparently been arranged. This division was evidenced by two deeds which Purl Shell executed, one to Kenneth and his wife and one to Raymond and his wife. To implement the deferred features of the agreement, the services of the Nodaway Valley Bank, a defendant in this case, were enlisted to act as escrow agent and the two deeds were deposited with it. Also deposited with the bank were certificates of deposit amounting to $20,000.00 payable to Kenneth and Raymond. These were indicated to be earnest money to be credited on the sale price.

The appraisal, which would establish the price for the property, was directed by the agreement to be obtained from three appraisers, two selected by the interested parties and a third chosen by the first two. After the value had been set, Kenneth and Raymond were entitled to obtain the deeds from the bank upon payment of the purchase price. The sums so received were to be paid over by the bank to the executors of the Purl Shell estate. The bank was named in the agreement but the bank did not execute the document and no separate escrow agreement was drawn.

Purl Shell died February 15, 1976. Selection of the appraisers, Ed Brown, Carl Graham and Ambrose Berg, also defendants in the case, was promptly made and their report was given April 26, 1976. The total tract as described in the sale contract was valued by the appraisers at "$288,750 or $750 per acre." The appraisers separately valued the tract described in the deed to Raymond at $58,725.00. To reach a value of the property included in the deed to Kenneth, the appraisers merely deducted $58,725.00 from the total and reached a figure of $230,025.00, a calculation which was challenged in this suit.

Although Kenneth and Raymond were entitled to defer their purchases for nineteen months, Raymond elected to close earlier, he paid his share of the price and received his deed from the bank December 2, 1976. The money so paid, $58,725.00, was credited by deposit to the account of the Purl Shell estate. Executors of the estate were Raymond and his sister Dorothy Farrell, also defendants in the case, both individually and in their representative capacities.

Kenneth was dissatisfied with the report of appraisers Brown, Graham and Berg, primarily because he believed the acreage content of the larger tract assigned to him had been overestimated. It was his opinion, supported to some extent by an independent land survey, that after excluding highway and railroad right-of-way, a multiplication of the per-acre price set by the appraisers, $750.00, times the acreage, resulted in a price of $209,376.00 rather than $230,025.00 as calculated by the appraisers through deduction of the price set for Raymond's purchase. Also of concern to Kenneth was the occupancy of the land by defendants Benjamin and Nancy Farrell who had obtained a three-year lease extension from Purl Shell executed before the latter's death but effective March 1, 1976.

After unsuccessfully attempting to resolve the controversy over the price to be paid to obtain the deed held by the bank, Kenneth and his wife instituted this action by a five-count petition. Count I sought damages against Raymond Shell and Dorothy Farrell as co-executors of the Purl Shell estate and individually for various acts of negligence and deliberate wrongdoing in managing the property in question and in obstructing Kenneth's attempts to conclude the contract purchase. Counts II and III named the appraisers and the bank as defendants and sought a "reformation" of the appraisal and direction that the bank close the sale at the revised price of the reformed appraisal. Count IV was against Benjamin and Nancy Farrell and sought termination of their lease and damages. Count V against the bank and the co-executors sought an extension of the time for plaintiffs to conclude the purchase pending final determination of the litigation and also asked construction of the contract as to the date for the purchasers to acquire possession, a problem attributable to the tenancy of Benjamin and Nancy Farrell under the post-mortem lease extension. At the time suit was filed, expiration of the nineteenth-month period was imminent and, in fact, the date passed before the pleading in the case closed.

Defendant Nodaway Valley Bank answered Counts III and V of plaintiffs' petition and filed a counterclaim against plaintiffs and defendants Raymond Shell and Dorothy Farrell and a cross claim interpleading by a third-party petition some eight additional third-party defendants identified as heirs at law, devisees and beneficiaries of Purl Shell, deceased, not already parties to the action. The contract contained no provisions for remedies on default by the buyers and no instructions for disposition of the earnest money deposit if the funds were not applied to payment of the purchase price. The bank therefore alleged in its cross claim and counterclaim its position as a stakeholder and asked instructions for delivery of the remaining deed and disposition of the escrowed funds.

Defendants Raymond Shell and Dorothy Farrell answered Counts I and V of plaintiffs' petition and, individually and as co-executors, they counterclaimed against plaintiffs and cross claimed against other defendants. They asserted that the nineteenth-month period available for plaintiffs to conclude the real estate purchase had passed subsequent to the filing of plaintiffs' petition but before filing the counterclaim and cross claims and that plaintiffs by their default had forfeited any entitlement to performance of the agreement because they had made no tender of any purchase price payment. Upon this theory, Raymond and Dorothy contended that title to the property had passed to the heirs of Purl Shell, there being no devise of the real estate by will, and because the heirs were numerous and the land was not divisible in kind, they asked the court to decree a sale in partition.

Defendant appraisers Brown, Graham and Berg answered Count II by way of a general denial and asked no affirmative relief.

Third-party defendants Ada Mae Nelson and Bonnie Lee Heriford, who were heirs and devisees of Purl Shell and who had entered the case by the vehicle of the bank's third-party petition, filed third-party counterclaims and cross claims. Nelson and Heriford contended that the agreement made by Purl Shell on December 9, 1974 created no rights in plaintiffs or in defendant Raymond Shell because the contract was an attempt to accomplish a post-mortem property disposition and not being drawn or executed in the manner required of testamentary documents, it was invalid from inception. The bank was charged with negligence and misconduct in delivering the deed to Raymond when it should have perceived the defects...