Three-O-Three Investments, Inc. v. Moffitt

• Decision Date: 25 August 1981
• Docket Number: No. WD,THREE-O-THREE,WD
• Citation: Three-O-Three Investments, Inc. v. Moffitt, 622 S.W.2d 736 (Mo. App. 1981)
• Parties: INVESTMENTS, INC., Plaintiff-Respondent, v. Gene R. MOFFITT, John S. Evans, James H. Block, Allen J. Block, d/b/a Summit Development Co., Defendants-Appellants. 31404.
• Court: Missouri Court of Appeals

Page 736

622 S.W.2d 736

THREE-O-THREE INVESTMENTS, INC., Plaintiff-Respondent, v. Gene R. MOFFITT, John S. Evans, James H. Block, Allen J Block, d/b/a Summit Development Co., Defendants-Appellants.

No. WD 31404.

Missouri Court of Appeals, Western District.

Aug. 25, 1981.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied Oct.

6, 1981.

David R. Frensley, R. Stephen Parris, Ryder, Rose & Frensley, Kansas City, for defendants-appellants.

William C. Partin, Matt Partin, Kansas City, for plaintiff-respondent.

Before KENNEDY, P. J., and SHANGLER and SOMERVILLE, JJ.

SOMERVILLE, Chief Judge.

A decree in favor of the buyer for specific performance of a real estate contract is the subject of an appeal by the seller.

Initially, cognizance is taken that the decree in this court tried case will not be disturbed on appeal "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Accord: Zoellner v. Carty, 585 S.W.2d 289, 291 (Mo.App.1979).

The points on appeal, reduced to essentials are as follows: (1) the provision in the real estate contract providing for grant of an easement by the seller to the buyer was nothing more than an "agreement to agree" and was too indefinite and uncertain to support specific performance; (2) the trial court prejudicially erred in permitting the buyer to amend its petition at the close of all the evidence and plead waiver of timely compliance with the closing date set forth in the real estate contract; and (3) the trial court erred in holding that the seller had waived timely compliance with the closing date set forth in the real estate contract.

Certain basic facts need to be set forth in order to put the above points in perspective. On June 30, 1977, Gene Moffitt, John S. Evans, James H. Block, Allen J. Block, a general partnership doing business as Summit Development Company (Seller), and Three-O-Three Investments, Inc., a corporation (Buyer), executed a real estate contract for purchase of a fee tract and an easement situate in a shopping center under development by seller at the intersection of M-291 and Third Street, Lee's Summit, Missouri. The buyer intended to use the fee tract and easement for the purpose of establishing a commercial car washing business.

The contract, prepared by seller, consisted of certain insertions, additions and deletions to a printed "standard form" captioned "Missouri Real Estate Contract." The total purchase price was $26,500.00 and the terms of payment were spelled out. Exhibit "A", attached to the contract and made a part thereof by reference, was an "architectural" drawing of the shopping center site, to scale, from which the legal descriptions of both the fee tract and the easement could be ascertained.

Regarding the easement, the contract contained the following provision: "Seller and Buyer agree to execute and record a mutually acceptable COMMON AREA EASEMENT AGREEMENT covering a portion of Tract 4 as shown on Exhibit 'A' attached hereto and made a part hereof at the closing of this transaction." The contract provided that time was "of the essence" and provided for a closing date of "on or before March 1, 1978." The contract was not closed on March 1, 1978, as stipulated. However, an abundance of evidence, consisting of both oral and written statements by the seller to the buyer showing seller's waiver of the March 1, 1978, closing date, went in without objection. Although buyer formally alleged in its petition that there had been an extension of the March 1, 1978, closing date, it sought and received leave of court at the close of all the evidence to amend its petition and plead that seller had waived the March 1, 1978, closing date.

Seller's first point purports to rest on several general principles of law peculiar to specific performance. The seller leans heavily upon the well established principle that "in order to justify specific performance, a contract must not be indefinite, uncertain or incomplete, for the Court will not make a contract for the parties." Biggs v. Moll, 463 S.W.2d 881, 887 (Mo.1971). In the same general vein, "a contract to be specifically enforceable must be complete in its essential and material terms, and capable of being enforced without adding to its terms." Ray v. Wooster, 270 S.W.2d 743, 751 (Mo.1954). The "essential terms" of a contract for the sale of real property are: "(1) the parties; (2) the subject matter; (3) the promises upon both sides; (4) the price; and (5) the consideration." Id. at 752.

Seller's recitation of such principles does not ipso facto resolve its first point. Doing so merely provides a legal template to assist in gauging the evidence and certain definitive legal principles upon which resolution of seller's first point rests.

Seller puts great stock in that portion of the easement provision which recites that seller and buyer "agree to execute and record a mutually acceptable COMMON AREA EASEMENT AGREEMENT." This language is seized upon by seller out of context and characterized as nothing more than an "agreement to agree". The fact that subsequent execution of a "COMMON AREA EASEMENT AGREEMENT" was contemplated, standing alone, did not reduce the written contract to the bare stature of an "agreement to agree" if the "essential terms" of the easement agreement are found in the written contract. See: New York P. E., etc., Co. v. New York P. Exch., 208 App.Div. 421, 203 N.Y.S. 648, 652-53 (1924); and Schlageter Estate Co. v. Koontz, 97 Cal.App.2d 814, 218 P.2d 814, 817 (1950). Seller would exclude Exhibit "A", attached to and made a part of the contract, as an additional source to look to for the "essential" terms of the easement agreement. It is well established that matters incorporated into a contract by reference are as much a part of the contract as if they had been set out in the contract in haec verba. Welch v. North Hills Bank, 442 S.W.2d 98, 101 (Mo.App.1969).

Regarding the easement, the contract is principally faulted by the seller as being indefinite and uncertain in six respects: (1) it contained no legal description of the easement; (2) it failed to delineate whether an easement appurtenant or an easement in gross was contemplated; (3) it was silent as to its duration; (4) it was silent as to who had the duty of maintenance; (5) it lacked specificity as to the "extent of use"; and (6) it failed to spell out whether an exclusive or nonexclusive easement was contemplated.

A look at Exhibit "A" in conjunction with the easement provision contained in the body of the contract effectively dispels seller's contention that the easement provision was too indefinite and uncertain to support specific performance.

Seller's contention that the real estate contract failed to contain a legal description of the easement is untenable. Exhibit "A" and the contractual provision viewed together provided an adequate source from which the legal description of the easement could be ascertained. Herzog v. Ross, 355 Mo. 406, 196 S.W.2d 268, 270 (banc 1946).

Seller's claim that it is unclear whether an easement appurtenant or an easement in gross was intended is equally untenable. In this state, an easement is never presumed to be a mere personal right when it can fairly be construed to be appurtenant to another estate. Engelhardt v. Gravens, 281 S.W. 715, 718 (Mo.1926). Two of the principal legal attributes of an easement appurtenant for right of way purposes are the existence of both a dominant and servient tenement and that one terminus of the right of way "must lie on the land to which it is claimed to be appurtenant." Downey v. Sklebar, 261 S.W. 697, 698 (Mo.App.1924). Even a perfunctory look at Exhibit "A" clearly discloses that the fee tract which seller contracted to sell to buyer for a car wash site constituted the dominant tenement and contiguous property retained by seller to be burdened by the easement constituted the servient tenement. Moreover, Exhibit "A" discloses with equal clarity that the easement provided for under the contract (1) terminated at one end on the fee tract which seller contracted to sell to buyer, (2) ran across contiguous property retained by seller, and (3) terminated on the other end at a general right of way coursing through the shopping center. The existence of a dominant tenement resolves any doubt as to whether an easement appurtenant or an easement in gross was intended, as an easement in gross has no dominant tenement. See Wooldridge v. Smith, 243 Mo. 190, 147 S.W. 1019, 1023 (1912).

Seller also insists that the contractual provision regarding the easement was silent as to its duration, thereby excluding enforcement of the contract by way of specific performance. This does not render the contract fatally infirm for a number of reasons. Having concluded that the real estate contract provided for conveyance of an easement appurtenant, an analysis of certain characteristics of easements appurtenant is in order. One of the chief characteristics of an easement appurtenant is that it runs with the dominant tenement, Downey v. Sklebar, supra, 261 S.W. at 698, and passes with the conveyance of the dominant tenement although not specifically mentioned in the instrument of conveyance, Beldner v. General Electric Company, 451 S.W.2d 65, 75 (Mo.1970). Words of limitation such as "heirs" or "assigns" of the grantee are not required to create an easement appurtenant. Brown v. Redfern, 541 S.W.2d 725, 729-30 (Mo.App.1976). The court in Brown, citing Section 442.460, RSMo 1969, ¹ interchangeably spoke of an easement created by reservation in a deed as "perpetual" and an "appurtenant easement", notwithstanding the absence of any words of limitation such as "heirs" or "assigns". In at least two other jurisdictions having statutes comparable or substantially...