335 S.W.3d 110
Mo. Ct. App.2011Background
- Barnett bid at a real estate auction and entered a contract to buy 205 North 12th Street for $154,000, with $15,400 earnest money due at closing.
- Closing was scheduled for November 4, 2008 at 10:00 a.m. at the Title Company; time was of the essence and Davises were to deliver a general warranty deed at closing.
- Barnett halted payment on the earnest-money check, later replaced it after Davises asserted potential felony consequences and after notification by Mary Davis.
- Barnett sought to rescind and recover the earnest money; Davises counterclaimed for liquidated damages.
- Summary judgment in favor of Barnett was entered by the trial court; the Missouri Western District Court of Appeals reversed and remanded.
- The appellate court held that unresolved questions about whether Davises’ conduct constituted a material breach precluded summary judgment as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Barnett first breach the contract, excusing Davises’ performance? | Barnett first breached by not paying; Davises’ breach excuses performance. | Barnett’s alleged breaches are not material; Davises still owed closing. | No material first breach; summary judgment inappropriate |
| Did Davises’ failure to appear at closing constitute a material breach? | Davises’ non-appearance at 10:00 a.m. on closing day breached the contract. | Davises were ready to close via their agent; appearance not strictly necessary per contract. | Not a per se material breach as a matter of law |
| Was Barnett entitled to summary judgment given the contract’s time-is-of-the-essence clause? | Davises’ breach allowed Barnett to terminate and recover earnest money. | Breach was not proven to be material; genuine issues remained. | Summary judgment improper; factual and legal questions remained |
Key Cases Cited
- R.J.S. Security, Inc. v. Command Security Services, Inc., 101 S.W.3d 1 (Mo.App. W.D.2003) (first breach rule; materiality limits excuse of performance)
- Fugate v. Rice, 815 S.W.2d 466 (Mo.App. S.D.1991) (cure of breach by correcting deficiency in performance)
- F.J. Miceli & Slonim Development Corp. v. Dierberg, 773 S.W.2d 154 (Mo.App. E.D.1989) (closing presence and performance expectations compared)
- Eagle ex rel. Estate of Eagle v. Redmond, 80 S.W.3d 920 (Mo.App. W.D.2002) (burden to cite authorities; summary judgment standards)