Wills v. Whitlock

• Court: Missouri Court of Appeals
• Writing for the Court: Joseph M. Ellis
• Citation: Wills v. Whitlock, 139 S.W.3d 643 (Mo. App. 2004)
• Decision Date: 03 August 2004
• Docket Number: No. WD 62943.,WD 62943.
• Parties: Dwane Allen WILLS, II, et al., Appellants, v. Julie R. WHITLOCK, et al., Respondents.

139 S.W.3d 643

Dwane Allen WILLS, II, et al., Appellants, v. Julie R. WHITLOCK, et al., Respondents.

No. WD 62943.

Missouri Court of Appeals, Western District.

August 3, 2004.

Appeal from the Circuit Court, Saline County, Rex Gabbert, J James A. Kessinger, Kansas City, MO, for appellants.

William J. Daily, Glasgow, MO, for respondents.

Weldon W. Perry, Jr., Lexington, MO, for respondent Whitlock.

Before JOSEPH M. ELLIS, C.J., PATRICIA BRECKENRIDGE, and THOMAS H. NEWTON, JJ.

JOSEPH M. ELLIS, Chief Judge.

Appellants, Dwane A. Wills II ("Wills") and Wills Professional Services, Inc. ("WPS"), appeal the grant of summary judgment to respondents, Julie R. Whitlock ("Whitlock," formerly Julie R. Wills), Scott and Julie Fuemmeler ("the Fuemmelers"), and Audsley Monument Company, LLC ("AMC"), on their actions against one or more of the respondents to enforce collateral restrictions on the sale of a private cemetery contained in a contract executed by Whitlock, and for prima facie tort. The Circuit Court of Saline County entered summary judgment against Wills and WPS on all but one of the nine claims asserted in their second amended petition, and certified its judgments as final for purposes of immediate appellate review pursuant to Rule 74.01(b), expressly determining that there was "no just reason for delay with respect thereto." In this appeal, Wills and WPS claim the circuit court erred in entering summary judgment against them because genuine issues of material fact remain in dispute and respondents were not entitled to judgment as a matter of law, in that appellants pleaded one or more viable causes of action against respondents. We reverse the trial court's grant of summary judgment to respondents and remand for a trial on the merits of the petition.

Standard of Review

The standard of review governing this case was aptly summarized in Butler v. Burlington Northern & Santa Fe Railway Co., 119 S.W.3d 620 (Mo.App. W.D.2003):

A movant is entitled to summary judgment if the motion for summary judgment and the response thereto show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. We view the record in the light most favorable to the party against whom summary judgment is entered and accord the non-movant the benefit of all reasonable inferences from the record. We take as true the facts set forth by affidavit or otherwise in support of the moving party's motion unless they are contradicted by the nonmoving party's response to the summary judgment motion. The non-moving party's response must show the existence of some genuine dispute as to one of the material facts necessary to the plaintiff's right to recover.

Id. at 621-22 (quoting Peck v. Alliance Gen. Ins. Co., 998 S.W.2d 71, 74 (Mo.App. E.D.1999)). Furthermore, as stated by the Missouri Supreme Court in Harjoe v. Herz Financial, 108 S.W.3d 653, 654 (Mo. banc 2003): "Review is de novo. Because the trial court makes its decision based upon the record submitted and the law, this Court need not defer to the order of the trial court granting summary judgment." "To succeed on summary judgment, a defendant must show: (1) undisputed facts negating any of plaintiffs' required elements; (2) the plaintiffs, after adequate time for discovery, cannot produce evidence sufficient to find one of plaintiffs' required elements; or (3) there is no genuine dispute as to each fact necessary to support a properly-pleaded affirmative defense." Chouteau Auto Mart, Inc. v. First Bank of Mo., 55 S.W.3d 358, 360 (Mo. banc 2001) (emphasis omitted).

Facts, Background, and Procedural History of the Case

Viewed in the light most favorable to Wills and WPS, the record reflects the following. On December 11, 1997, after protracted, expensive, and bitter divorce litigation which took place over a period of several years, the Circuit Court of Saline County entered a judgment dissolving the marriage of Wills and Whitlock, who had executed, earlier the same day, a privately-negotiated Separation and Property Settlement Agreement ("Separation Agreement"). Part of the Separation Agreement, which the circuit court expressly incorporated into its judgment of dissolution "by reference as though fully set forth herein," was a document titled Contract and Agreement ("Contract"). Among other things, the Contract (which was executed on or about December 9, 1997 by Wills, WPS, Whitlock, and another party not involved in this appeal) required Wills and WPS to convey to Whitlock, by quitclaim deed, all their interest in certain real property — namely, a fifteen-acre tract of land known as the Sunset Memorial Gardens Cemetery ("Cemetery") located in Marshall, Saline County, Missouri.¹ The Contract further provided that "[u]ntil December 9, 2000, [Whitlock] shall not directly or indirectly sell this real property to any person, directly or indirectly, competing with [Wills] or [WPS],² or any successor or assignor. Further, [Whitlock] will not compete, directly or indirectly, by operation of [Cemetery] with [Wills or WPS]. Operation of the cemetery, alone, shall not be competition with [Wills or WPS]." Whitlock further agreed that:

Should [she] receive an offer to buy or make an offer to sell [Cemetery], [Wills] or [WPS] shall be given forty-five days written notice of the proposed sale and the terms thereof and a first option to purchase [Cemetery] on the same terms and conditions as such proposed sale, with a five (5) percent increase in the purchase price, such purchase by [Wills] and [WPS] to close within forty-five business days after receipt of written notice as herein provided.³

Moreover, the parties to the Contract agreed that these "provisions may be enforced by a court of equity, by injunction or as otherwise provided by law." Finally, the parties all expressly waived their rights to trial by jury "with regard to any disputes arising under" either the Contract or the Separation Agreement.⁴

In performance of their obligations under the Contract, on February 23, 1998, Wills and WPS executed a quitclaim deed, which was prepared by one of Whitlock's divorce attorneys, transferring their ownership interest in the Cemetery to Whitlock. The deed, which was recorded on March 19, 1998, contained none of the restrictions on direct or indirect sale to a competitor that were set forth in the Contract, nor any language regarding a right of first refusal. Less than two weeks later (March 30, 1998), Whitlock entered into a contract to sell the Cemetery to the Fuemmelers⁵ for the sum of $55,000.00.⁶ By certified letter dated the same day, Whitlock notified Wills of the proposed sale as follows: "This is notice per addendum that a contract has been signed and accepted by me on [Cemetery]. According to our agreement this is your legal 45 day notice of first option to purchase property per the addendum. The sales price exceeded at 5% would be $57,750.00 with 2,000 earnest money down." This letter, which did not identify the buyers and, therefore, did not allow appellants to determine if they were direct or indirect competitors of theirs, was received by Wills on March 31, 1998. Upon subsequent independent investigation by appellants, within a week or so they discovered that the buyers were the Fuemmelers. Later, Wills notified Whitlock of his objections to the proposed sale.

After receiving notice of the pending sale of the Cemetery, independently discovering the identity of the buyers, and notifying Whitlock of their objections to the proposed sale, appellants did not exercise their Contractual right of first refusal within the forty-five business day window specified in the Contract. Instead, on May 25, 1998, they filed a petition in the Circuit Court of Saline County seeking, among other forms of both equitable and legal relief, the issuance of an injunction preventing the proposed sale to a competitor based on the restrictions contained in the Contract. Shortly thereafter, appellants also filed a notice of lis pendens. Upon learning of the May 25, 1998 lawsuit and accompanying notice of lis pendens, the title company which was to have been involved in the sale, which was scheduled to close on June 2, 1998, refused to issue title insurance on the property. By May 28, 1998, respondents all knew that the title company had refused to issue a title insurance policy on the Cemetery "because Dwane had filed" either the May 25, 1998 lawsuit, the notice of lis pendens, or both. Whitlock did not tell either of the Fuemmelers why appellants had objected to the proposed sale.

Around March or April 1998, after seeking out and initiating contact with the holder of a negotiable promissory note and deed of trust securing a Nevada, Vernon County, Missouri, funeral home owned by appellants, Whitlock purchased the note. In May 1998, Whitlock foreclosed on the mortgage and forced the sale of the funeral home in June 1998.

On August 28, 1998, while appellants' May 25, 1998 lawsuit was still pending and three months after the proposed sale had died on the vine due to Whitlock's failure to obtain title insurance, Whitlock signed and delivered a quitclaim deed conveying her ownership interest in the Cemetery to the Fuemmelers.⁷ The Fuemmelers then immediately took possession of and began operating the Cemetery. The August 28, 1998 quitclaim deed, which was recorded the very same day, recited that Whitlock,

in consideration of the sum of TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION, to her paid by the Grantees [the Fuemmelers] (the receipt of which is hereby acknowledged), does by these presents REMISE, RELEASE, AND FOREVER QUIT CLAIM unto the [Fuemmelers] the following described lots, tracts or parcels of land, being and situate in the County of Saline, and State of Missouri, to wit: [the Cemetery].

In addition to similar deposition testimony we need not recount here, the record contains sworn affidavits signed by Whitlock and the...