Taryen Development Inc. v. Phillips 66 Company

• Decision Date: 22 August 2000
• Citation: 31 S.W.3d 95
• Parties: (Mo.App. E.D. 2000) . Taryen Development, Inc., Plaintiff/Appellant, v. Phillips 66 Company and Phillips Petroleum Company, Defendants/Respondents. Case Number: ED77149 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

31 S.W.3d 95 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Taryen Development, Inc., Plaintiff/Appellant, v. Phillips 66 Company and Phillips Petroleum Company, Defendants/Respondents.

Case Number: ED77149

Missouri Court of Appeals Eastern District

Handdown Date: 08/22/2000

Appeal From: Circuit Court of St. Louis County, Hon. Maura B. McShane

Counsel for Appellant: Marvin Max Klamen

Counsel for Respondent: Ian P. Cooper

Opinion Summary: Plaintiff Taryen Development Inc. appeals summary judgment in favor of defendants Phillips 66 Company and Phillips Petroleum Company.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

Division One holds: The trial court erred in granting summary judgment in favor of defendants on Count I, fraud in the execution and Count II, fraud in the inducement because genuine issues of material fact remain as to whether defendants made a misrepresentation to Taryen and as to whether Taryen relied upon it. Further, as to Count II, there is a genuine issue of material fact as to whether all conditions precedent to the contract had been satisfied at closing, and if they had not been satisfied, Taryen was not under a legal obligation to close. However, the trial court properly granted summary judgment on Count III for breach of the slope easement, because the slope easement agreement did not obligate defendants to utilize the easement and construct the slope.

Opinion Author: Paul J. Simon, Judge

Opinion Vote: JUDGMENT AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. Gaertner, P.J., and J. Dowd, J., concur.

Opinion:

Plaintiff, Taryen Development Inc. (Taryen), appeals the judgment of the Circuit Court of St. Louis County granting summary judgment in favor of defendants, Phillips 66 Company and Phillips Petroleum Company, on all three counts of Taryen's Third Amended Petition.

On appeal, Taryen contends that the trial court erred in granting summary judgment on: (1) Count I for fraud in the execution because: (a) Count I alleges all of the essential elements of a fraud claim; (b) defendants have failed to negate at least one essential element of the claim; (c) it alleges recoverable damages; (d) it is not barred by the statute of limitations; (2) Count II for fraud in the inducement because: (a) Count II alleges the essential elements of a fraud claim; (b) Taryen was not under a legal obligation to convey real property; (c) defendants have failed to negate at least one essential element of the claim; (d) it is not barred by the statute of limitations; (3) Count III for breach of contract because: (a) Count III alleges the essential elements of a breach of contract claim; (b) a document does not need to be signed to be a contract; (c) defendants had a duty to construct slope in a manner prescribed in agreement; (d) defendants have failed to negate at least one of the essential elements of the count; (e) it is not barred by the statute of limitations. We affirm in part and reverse and remand in part.

We initially note that the legal file, comprising more than 380 pages, is poorly organized with a short superficial index. Neither party provided an index identifying specific page numbers for the exhibits referenced in their motions. This lack of organization necessitated a page by page search of the record. However, since we were able to find the needed documents, we address the merits of the appeal.

It is well-settled that when considering an appeal from summary judgment, we review the record in the light most favorable to the non-movant. ITT Commercial Finance v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). Our review is essentially de novo. Id. at 376. The criteria on appeal for testing the propriety of summary judgment are no different from those employed by the trial court to determine the propriety of sustaining the motion initially. Id. The burden on a summary judgment movant is to show a right to judgment flowing from facts about which there is no genuine dispute. Id. at 378.

A "defending" party may establish a right to judgment by showing: (1) facts that negate any one of the claimant's elements facts; (2) that the non-movant, after an adequate time for discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements; or (3) that there is no genuine dispute as to the existence of the facts necessary to support the movant's properly pleaded affirmative defense. Id. at 381. Where, as here, the trial court grants summary judgment without specifying the basis upon which it was granted, we will uphold the summary judgment if it is appropriate under any theory. Southwestern Bell Yellow Pages v. Robbins, 865 S.W.2d 361, 369 (Mo.App. E.D.1993).

The non-movant must show by affidavit, depositions, answer to interrogatories, or admissions on file, that one or more of the material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed. ITT at 381. A "genuine issue" exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. Id. at 382. A "genuine issue" is a dispute that is real, not merely argumentative, imaginary or frivolous. Id.

The record, reviewed in the light most favorable to Taryen, the non-movant, reveals that Taryen, incorporated in 1974, is a commercial entity dealing in real estate and has participated in numerous real estate transactions. Harold Klamen, Taryen's past president and part owner, has been in the business of dealing with real estate for approximately fifty years. Past president and part owner, Forrest Crump, now deceased, had been in the real estate business for about twenty years in 1990.

On or about, March 29, 1990, Taryen agreed to sell to defendants certain real estate located at the corner of Imperial Main and I-55 in Jefferson County, Missouri (the property). On that date, Taryen executed a Contract to Purchase Real Estate, (contract) providing that the contract price was $350,000. Subparagraph D of the contract provided, in pertinent part:

"the failure of any jurisdiction to grant zoning, special use permits, development standard variances and building permits for the above uses and facilities shall result in the cancellation of the Contract and Seller shall return all contract consideration to Buyer."

The contract also provided for special conditions, which were attached as exhibit B to the real estate contract. The special conditions provided, in pertinent part:

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2. Seller agrees to assign to Buyer the Seller's access easement across the property located at the Northwest Corner of Main Street and Old State Road. Seller reserves the right to utilize said easement appurtenant and further reserves a thirty-foot (30-foot) access easement appurtenant along the East thirty (30) feet of the subject Premises from Main Street to the North Property line of the subject premises from Main Street to the North property line of the subject premises. Seller reserves the right to assign all or a portion of its rights in the above-referenced easements.

3. Seller agrees to grant Buyer a slope easement of such distance along the North property line of the subject Premises to accommodate a three-to one grading slope. Buyer shall present the proposed Slope Easement Agreement to Seller not less than thirty (30) days prior to closing. The determination of the size of the easement area and the execution of the easement agreement containing the terms and conditions of the easement shall be completed prior to closing.

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On August 20, 1990 defendants provided Taryen with formal written notice of corporate approval of the contract, stating that purchase was contingent upon satisfaction of all terms and conditions of the contract.

In October 1990, defendants prepared a subdivision plat encompassing the property for a subdivision known as the Janie Lee Meadows Subdivision (Janie Lee plat). This plat contained an easement running across the property in favor of Taryen, as provided for in Exhibit B. On October 4, 1990, defendants advised Taryen in writing that the approval of the Janie Lee plat by Jefferson County would be necessary and on October 19, the Jefferson County Planning and Zoning Commission (commission) advised Taryen that a hearing for approval of the Janie Lee plat would occur on October 25.

On October 26, 1990, Taryen was notified by commission that the Janie Lee plat in its preliminary form was approved subject to at least fourteen conditions. On November 20, 1990, Taryen was notified by the Jefferson County Planning and Zoning Department (department) that the final Janie Lee plat would be considered by the commission on December 13, 1990. On or about December 13, 1990, commission recommended final approval of the Janie Lee plat subject to only two conditions, acceptance of the escrow agreement by commission and that Lot 3 of Phase II be designated as non-buildable until final approval of the plat is granted.

On or about December 17, 1990 the closing on the property occurred. Taryen did not attend the closing, but had submitted a general warranty deed transferring title to the property and a slope easement in favor of defendants to the title company. The slope easement, a separate document, was prepared by defendants and signed by Taryen. It was desired by defendants because the property to be purchased by defendants and Taryen's remaining property were below the grade of Main Street. In order to make defendants' property commercially usable, defendants added a substantial amount of fill to raise the level of its property. The easement was to grant defendants access across the Taryen property for the purposes of transporting fill material onto defendants' property. The slope easement provided, in pertinent part:

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