Shellabarger v. Gene, No. ED 93618 (Mo. App. 4/27/2010)

• Decision Date: 27 April 2010
• Docket Number: No. ED 93618.,ED 93618.
• Parties: KARL SHELLABARGER, Plaintiff/Appellant, v. GENE AND EUGENIA SHELLABARGER, individually and as TRUSTEES OF THE GENE L. SHELLABARGER and EUGENIA L. SHELLABARGER TRUST, Defendants/Respondents.
• Court: Missouri Court of Appeals

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KARL SHELLABARGER, Plaintiff/Appellant, v. GENE AND EUGENIA SHELLABARGER, individually and as TRUSTEES OF THE GENE L. SHELLABARGER and EUGENIA L. SHELLABARGER TRUST, Defendants/Respondents.

No. ED 93618.

Court of Appeals of Missouri, Eastern District, Slu Division.

April 27, 2010.

Appeal from the Circuit Court of Audrain County, Honorable Keith M. Sutherland

Introduction

SHERRI B. SULLIVAN, J.

Karl Shellabarger (Appellant) appeals from the trial court's partial summary judgment entered in favor of Gene and Eugenia Shellabarger, individually (Gene and Eugenia, respectively) and as trustees of the Gene L. Shellabarger and Eugenia L. Shellabarger Trust (Trust) (collectively Respondents), as to Counts I, II, III and IV of Appellant's five-count petition.¹ We reverse and remand.

Factual and Procedural Background

The following facts are gleaned from the Respondents' statement of undisputed material facts in support of their motion for summary judgment, and Appellant's response to Respondents' statement of undisputed material facts.

Appellant and Gene entered into a contract involving an interest in real estate. Appellant composed a contract to memorialize their agreement. This contract, dated April 12, 1995, is signed by Gene and Appellant. The contract provided that Appellant could purchase the real estate in the future, following an 18-month holding period after Respondents had purchased the real estate. On November 12, 1996, the holding period was no longer in effect. The contract did not provide a definite date for performance or closing.

On April 22, 2008, Appellant filed a five-count petition against Respondents, alleging in Count I — Specific Performance; Count II — Breach of Contract; Count III — Fraud; Count IV — Unjust Enrichment/Constructive Trust, and Count V — Damages for Crop Loss. Respondents filed a motion for partial summary judgment on Counts I though IV alleging that they were entitled to summary judgment based on the statute of frauds, the statute of limitations, and laches. Appellant filed his response to said motion. After hearing argument and taking the matter under advisement, the trial court granted Respondents' motion, without explication, other than noting that it found "that there is no general [sic] dispute as to any material facts and, accordingly, Defendants are entitled to judgment as a matter of law on Counts I through IV of Plaintiff's petition." Appellant filed a motion for reconsideration, which was denied. Appellant dismissed Count V without prejudice. This appeal follows.

Points on Appeal

In his first point, Appellant claims that the trial court erred in sustaining Respondents' motion for summary judgment based on the statute of frauds because (a) the contract for the sale of real property was in writing and contained all the essential elements of a contract in that it is signed by the parties and recites the subject matter, the consideration, the price, and the promises for both sides; and

(b) both parties performed under this contract for over twelve (12) years and therefore the statute of frauds does not apply; and

(c) Count III of Appellant's petition pled fraud which is an exception to the statute of frauds; and

(d) Count IV of Appellant's petition specifically sought additional equitable remedies which also creates an exception to the statute of frauds.

In his second point, Appellant contends that the trial court erred in sustaining Respondents' motion for summary judgment based on either a five-year or a ten-year statute of limitations because there are genuine issues of fact regarding when the statute of limitations started to run, in that Appellant's evidence demonstrates that Respondents never sought to repudiate the contract until 2006 and this action was first brought in 2008.

In his third point, Appellant asserts that the trial court erred in sustaining Respondents' motion for summary judgment based on laches because there was a "general [sic] issue of fact" regarding Respondents' claim of laches because Respondents cannot rely on equity as a defense in that Respondents have "unclean hands" as Appellant's evidence clearly demonstrates that he made every payment due under the contract, changed his position in reliance on the contract, expended substantial amounts of money improving the real property, and at no time did Respondents indicate that they were not going to honor the contract until, at best, 2006.

Standard of Review

Our review of the trial court's grant of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). The propriety of summary judgment is purely an issue of law. Id. Summary judgment is proper only in those situations in which the movant can establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. ITT, 854 S.W.2d at 377; Rule 74.04.² The movant has the burden to show a right to judgment flowing from facts about which there is no genuine dispute. ITT, 854 S.W.2d at 378. We review the record in the light most favorable to the party against whom judgment was entered, and accord the non-movant the benefit of all reasonable inferences from the record. ITT, 854 S.W.2d at 376.

If there is no contradiction and the movant has shown a right to judgment as a matter of law, the non-movant must create a genuine dispute by supplementing the record with competent materials that establish a plausible, but contradictory, version of at least one of the movant's essential facts. ITT, 854 S.W.2d at 376. It is not the "truth" of the facts upon which the court focuses, but whether those facts are disputed. Id. Where they are not, the facts are admitted for purposes of analyzing a summary judgment motion. Id.

If the trial court grants summary judgment without specifying the basis upon which it was granted, we will uphold the decision if it was appropriate under any theory. Taryen Dev., Inc. v. Phillips 66 Co., 31 S.W.3d 95, 97-8 (Mo.App. E.D. 2000). Here, the trial court's grant of summary judgment is premised upon affirmative defenses raised by Respondents. To affirm the judgment below, therefore, we must conclude that Respondents' motion sets forth undisputed facts which establish every element of one of those affirmative defenses. Transatlantic Ltd. v. Salva, 71 S.W.3d 670, 674 (Mo.App. W.D. 2002).

Discussion

Statute of Frauds — Point I

Respondents' motion for summary judgment raised a single alleged violation of the statute of frauds, to-wit: the lack of a date certain for transfer of the real estate. Respondents cite no applicable authority in support of their assertion that the lack of a date certain for transfer in the agreement sub judice violates the statute of frauds.³ The statute of frauds provides that "[n]o action shall be brought ... upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them ... unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith ...." Section 432.010.⁴ To satisfy the statute of frauds, when the party to be charged is the putative seller of real estate, there must be a writing signed by that party reflecting a promise to sell. Smith v. International Paper Co., 87 F.3d 245, 247 (8th. Cir. 1996); Gillespie v. Pulsifer, 655 S.W.2d 123, 125 (Mo.App. W.D. 1983). The existence of a writing signed by Appellant and Gene reflecting a promise to sell the real estate is an uncontested fact in this case.

A writing satisfies the statute of frauds' "memorandum" requirement if it sets forth the essential terms of a contact. In re Estate of Looney, 975 S.W.2d 508, 515 (Mo.App. S.D. 1998). The essential elements of an agreement to convey real property are: the parties, the subject matter, the consideration, the price, and promises upon both sides. Id., Skaggs v. Dial, 861 S.W.2d 188, 192 (Mo.App. W.D. 1993). When these essential provisions exist in a document, it is specifically performable even though it may leave something to be desired in draftsmanship or could have been more clearly stated. Looney, 975 S.W.2d at 515. A writing need not be an explicit and complete contract, and the terms therein need not be definite, as long as the substance of the agreement appears from the writing. Id. The terms may be made certain when the circumstances are shown by extrinsic evidence. Id.; see also, Teets v. American Family Mut. Ins. Co., 272 S.W.3d 455, 465 (Mo.App. E.D. 2008), quoting G.H.H. Inv. L.L.C. v. Chesterfield Mgmt., 262 S.W.3d 687, 695 (Mo.App. E.D. 2008) ("While we agree the Agreement contains no date marked on a calendar or specific time period that delineates the end of the Agreement, this Court has held that `[t]ime for performance may be specifically determined by external events.'").

Here, although the contract at issue does not contain a date certain for performance, that omission does not implicate a violation of the statute of frauds. The "essential" terms of unperformed promises must be stated; "details or particulars" need not. Restatement (Second) of Contracts: The Statute of Frauds § 131 General Requisites of a Memorandum (1981). What is essential depends on the agreement and its context and also on the subsequent conduct of the parties, including the dispute which arises and the remedy sought. Id. In the instant case, the date of Gene's sale of the property to Appellant was not essential or pertinent to their particular agreement. What was essential in terms of time constraints was that the property not be sold before 18 months. That was the nature of their agreement, and the time for it to be sold by Gene to Appellant was not of the essence in their agreement. "A memorandum of an agreement for the sale of land is not necessarily insufficient to satisfy the requirements of the statute of frauds because...