Lead Opinion
The question we must decide is whether a real estate contract lacked such definiteness and finality that it was incapable of specific performance, thereby justifying summary judgment. Because we conclude the issue is fairly disputable, we reverse summary judgment and remand for a trial on the merits.
Frederick J. Peet (Peet), for himself and as assignee of co-plaintiff Judith S. Keen (Keen) (collectively referred to as Purchasers), appeals from summary judgment entered in favor of George Randolph (Mr. Randolph) and Cecelia Randolph (Mrs. Randolph) (collectively referred to as Sellers) in Purchasers’ suit against Sellers for specific performance of a real estate sales contract. Purchasers argue that the trial court erred in granting summary judgment because: (1) Rule 74.04(c) was not followed; (2) there was a genuine issue of material fact concerning the realty in the real estate sale contract such that the identification of the realty to be conveyed was certain; and (3) the real estate sale contract did include all of the essential terms necessary to the parties’ agreement on the right of first refusal and the fact that a document needed to be executed by the parties for recording purposes at the time of the closing was not fatal to a claim for specific performance.
Facts
Purchasers and Sellers entered into a real estate sales contract involving Sellers’ 140-acre farm in Franklin County. The petition asserts the contract included: (1) Exhibit A, the Residential Sale Contract dated May 23, 1996; (2) Exhibit B, the Supplemental Agreement to Contract dated May 23, 1996; (3) Exhibit C, an aerial photo with the 120-acre property outlined and the approximate boundaries for the 20-acre parcel; and (4) Seller’s Disclosure Statement. Sellers planned to retain a 20-acre parcel adjoining their son’s property.
The Residential Sale Contract described the property to be sold as follows: “120 ± acres and All Improvements as per MLS Listing #532264, 3547 Hwy EE, Beaufort, Mo. Legal to govern.” The handwritten terms of the Supplemental Agreement included, inter alia:
-Survey: Buyer acknowledges orig. tract is 140 ± A. Seller, with P & Z approval, is retaining no more than 20 A. Seller agrees to have corners of 20 A. tract marked at his expense. Excepting the prior mentioned 20 A tract, Buyer accepts the property lines as per existing plat.
JBuyers to have first right of refusal to any offer on the above mentioned 20 A tract if said tract is ever sold, wholly or in part, written first right of refusal to be executed at the time of closing of this contract.
Purchasers agreed to buy from Sellers approximately 120 acres for $270,000. Purchasers were ready, willing, and able to close although Sellers failed to appear at closing. Mr. Randolph claimed he could prevent closing by neglecting his duty to have the property surveyed.
Purchasers filed suit seeking specific performance, and after substantial discovery on both sides, Sellers filed a motion for judgment on the pleadings against Peet and a motion to dismiss against Keen. In both motions, Sellers claimed the contract was not enforceable because (1) it fails to identify with sufficient particularity the realty to be conveyed; and (2) it is contingent upon the parties’ future agreement on an instrument yet to come into existence, the right of first refusal. Purchasers filed a response including excerpted deposition testimony of Sellers’ real estate agent.
Thereafter, the trial court conducted a hearing on the motions at which Sellers presented several evidentiary items. The evidence included Sellers’ partial deposition testimony, Peet’s partial deposition testimony, a 182-acre plat map of the farm, and the photo contained in Exhibit C. The court advised the parties that pursuant to Rule 55.27(b), it would consider
After receiving briefs from both parties and additional evidence from Purchasers, the trial court entered summary judgment in favor of Seller. It found that “the purported contract on which Plaintiffs’ suit is based fails to adequately describe the subject realty,” and further that “the purported contract is dependent upon a document yet to come into evidence, as to the contents of which the parties have no agreement whatsoever.” Peet filed “Separate Plaintiff Frederick J. Peet’s Motion for Reconsideration and to Amend Judgment” with attached affidavits of Sellers’ agent and a registered land surveyor. The motion was heard and denied by the court. This timely appeal follows.
Analysis
We review the trial court’s grant of summary judgment in favor of Sellers de novo. ITT Commercial Finance Corp., et al. v. Mid-America Marine Supply Corp.,
I: Insufficient Description of Land
Purchasers allege the trial court erred when it determined that the real estate contract failed to adequately describe the subject realty. To obtain specific performance, a contract must not be indefinite, uncertain, or incomplete. Biggs v. Moll,
Applying these principles to this case, we find a genuine issue of material fact exists as to whether the subject realty was adequately described. Sellers’ and Buyers’ agents and Peet testified that the contract included Exhibits A, B, and C and that the Sellers not only knew the lines on Exhibit C represented the retained 20-acre parcel, but also that Sellers participated in drawing those lines.
Sellers dispute that they had ever discussed where the 20-acre parcel would be located or that they had any part in drawing the lines on Exhibit C. Furthermore, Mr. Randolph stated he believed the “existing plat” referred to the 182-acre plat map that no one else had ever seen or even knew about. However, at another deposition, Mr. Randolph testified that at around the time of signing, he and a surveyor marked on an aerial map where the 20 acres would be located.
Viewing the record in the light most favorable to Purchasers, there is a genuine issue of material fact as to whether Exhib
II: Right of First Refusal
Purchasers allege the trial court erred when it entered summary judgment for Sellers since the right-of-first-refusal clause was specific enough to enforce and the parties agreed on that clause. Purchasers argue the clause is enforceable because only a formality remained of executing a document for recordation and the real estate contract contained all the essential terms necessary to the parties’ agreement on the right of first refusal. Furthermore, Purchasers dispute the trial court’s finding that there was no meeting of the minds regarding the right of first refusal.
First, we address the issue of enforceability. Other jurisdictions have held clauses similar to the one in this case are specific enough to be enforced. Winberg v. Cimfel,
Next, we look to determine if the parties had an agreement regarding the right of first refusal. In this case, the record shows that Peet believed the clause meant that Sellers would have to offer him the property if they chose to dispose of it in any way, including sale, devise, bequest, or gift. Sellers claim that because Peet’s mistaken belief did not conform to the true nature of a right of first refusal, there was no meeting of the minds necessary for a binding contract.
Missouri, however, has applied the objective theory of contracts since 1892. Computer Network, Ltd. v. Purcell Tire & Rubber Co.,
Thus, Sellers’ contention affords them no relief. The objective test demands that a court focus on the language of the agreement to determine the parties’ intent. Here, the right of first refusal was to any offer “if said tract is ever sold, wholly or in part.” By its unambiguous terms the right of first refusal applies to a future sale, but not to other possible transfers. Therefore, the court erred in entering summary judgment because the right of first refusal clause was specific enough to enforce, and under the objective theory of contracts, the parties agreed on the clause.
Ill: The Statute of Frauds
The dissent interposes the Statute of Frauds in defense of the grant of summary judgment. Although the trial court did not rely upon the Statute of Frauds in its judgment, it is true that we will uphold summary judgment if it could have been properly granted on grounds other than those relied upon. Chancellor Dev. Co. v. Brand,
Again, in reviewing the grant of summary judgment, we must determine whether a genuine issue of material fact exists. ITT Commercial Finance,
The Statute of Frauds exists to avoid fraud, not to facilitate it. A writing satisfies the Statute of Frauds memorandum requirement if it sets forth the essential terms of the contract. In re Estate of Looney,
The dissent accuses us, under the facts of our case, of allowing the standard of review in summary judgment to “trump” the Statute of Frauds. Indeed we are. It is the standard of review that must frame our assumptions and govern our consideration of issues on appeal. Under the universally accepted guidance of ITT Commercial Finance, supra, we must view all contradictory facts in favor of the non-movant and make all reasonable inferences in the non-movant’s favor.
In applying the standard of review, we are faced with the following summary judgment facts:
1) Sellers and Purchasers signed a real estate sales contract.2
*620 2) On the same date, Sellers and Purchasers signed a supplemental agreement providing for the Seller’s right to retain 20 acres; it provides, “Excepting the prior 20 A tract, Buyer accepts the property as per existing plat.”3
3) A plat of the farm with 20 acres marked off was attached to the sales contract.4
4) The Sellers had previously participated in the demarcation of the 20 acres on the attachment.5
Here, the documents are not only “connected either by express reference or clear implication,” but also they are physically attached! The dissent’s characterization of Exhibit C, the plat attached to the sales contract, as a “separate document” is mistaken. A connection, even without the attachment present here, is sufficient to satisfy the statute of frauds.
We reverse and remand for further proceedings consistent with this opinion.
Notes
. Sellers challenge appellate court jurisdiction and have filed a motion to dismiss the appeal, arguing that the judgment became final on September 19, 1999, since only one of the Purchasers filed a post-judgment motion that would delay finality of judgment. The motion to dismiss is without merit and is denied.
. Exhibit A; George Randolph deposition pp. 43-44; Frederick Peet deposition p. 86.
. Exhibit B; George Randolph deposition pp. 43-44.
. Exhibit C; Paul Pier deposition p. 93; Frederick Peet deposition p. 88.
. Frederick Peet deposition pp. 106-107.
. 10 Samuel Williston, Williston on Contracts § 29:30 (4th ed.1999). 4 Corbin on Contracts § 23.3 (rev. ed.1997).
Dissenting Opinion
dissenting.
I respectfully dissent. The primary issue before us is whether the contract contains a description of the land to be conveyed that is sufficient to satisfy the statute of frauds. As a matter of law, it plainly does not. Additionally, there was no meeting of the minds regarding the right-of-first refusal provision. The trial court was correct on both grounds on which summary judgment was granted, and the judgment should be affirmed.
I.
Taking the latter point first, the summary judgment record is indisputably clear that the parties had no actual meeting of the minds regarding the scope and duration of the so-called “first right of refusal” referred to in the Supplemental Agreement to Contract (Exhibit B). Purchasers had in mind a scope and duration for the right of first refusal that would radically exceed the normal meaning of the term since, among other things, it would extend beyond the lifetime of the Sellers to include their heirs,
II.
Sellers’ dispositive motions alleged that the contract’s description of the subject realty was insufficient to satisfy the statute of frauds.
The statute of frauds was designed to avoid “the dangers which developed in permitting title to real estate and contracts as to other weighty matters to rest in parol.” Tuckwiller v. Tuckwiller,
Thus, a court will not enforce a contract for the sale of real estate unless the contract or a written memorandum thereof either definitely describes the land or clearly furnishes, within itself, the “means” or “key” by which the property can be identified with reasonable certainty. Macy v. Day,
The law does not require that a contract for the sale of land shall in itself be wholly sufficient to identify the property. The writing is sufficient if it clearly reveals the intent of the parties with reference to the particular tract which is the subject matter of the sale and furnishes the means of its identification; or, as some cases hold, if it provides the “key” to the identification — the applicable principle being that that is certain which can be made certain.
Ray v. Wooster,
A necessary corollary to the “key or means” rule is that parol evidence is only admissible to apply, not to supply, a description of land in a contract. Shy v. Lewis,
Applying these principles to the case at hand, the alleged contract fails to satisfy the statute of frauds, in that it does not clearly contain, within itself, a “means or key” by which the subject realty can be determined with reasonable certainty beyond dispute. Rather, this is a situation where not only does the contract fail to specifically describe the property with definiteness and certainty, but it is vigorously disputed whether the alleged “means or key” — Exhibit C, the unsigned aerial photograph with yellow line markings on it, drawn at some uncertain time by some
None of this conflicting testimony is enough to preclude Sellers’ entitlement to summary judgment. Exactly the opposite is true. To allow a trial on this record would fly in the face of the statute of frauds. It would directly contravene the principle that parol evidence is only admissible to apply, not to supply, a description of land in a contract, Shy v. Lewis,
The majority opinion suggests that summary judgment is inappropriate because, viewing the record in the light most favorable to Purchasers, “there was a genuine issue of material fact as to whether Exhibit C was part of the contract.” I respectfully disagree. There is a factual dispute as to whether Exhibit C was part of the contract. The majority’s view, however, is premised on the false assumption that the standard of review under summary judgment somehow trumps the governing principles of substantive law concerning the statute of frauds. It doesn’t. Instead, and precisely because of those principles, this is the rare case where it is the very existence of a factual dispute, resting as it does in parol, which entitles one party to judgment as a matter of law. Exhibit C is a separate document; it is not signed or initialed by anyone; it is not dated; there is no reference in either Exhibits A or B to what is meant by “existing plat;” Exhibit C does not on its face call itself a “plat;” nor does Exhibit C contain any handwritten notations on it such as “these are the property lines.” There is simply nothing in writing — in any part of the contract, or in Exhibit C itself — which in any way indicates that Exhibit C is part of the contract.
The majority thus overlooks the fact that not only is Exhibit C unsigned, but there is no internal evidence of its identity and unity with the other two documents. The only conceivable way to cure this fatal defect in the contract’s description of the property to be conveyed, would be to improperly allow parol evidence, that is, Exhibit C as part of the contract. This is precisely what the statute of frauds for-
Of course, the memorandum of a contract which satisfies the Statute of Frauds is an instrument essentially informal and imperfect .... It must, however, contain such words as will enable the court, without danger of mistake, to declare the meaning of the parties. It must obviate the necessity of going to oral testimony, and relying on treacherous memory as to what the contract itself was. Where a sufficient description is given of the land sold, for instance, oral testimony may be resorted to, to fit the description to the thing; but where an insufficient description is given, or where there is no description, no such testimony is available or admissible. Every agreement required by the statute to be in writing must be certain in itself, or capable of being made so by a reference in the contract itself, or to something else whereby the terms may be ascertained with reasonable precision; and if it is claimed that the contract is contained in several papers, one referring to the other, oral testimony cannot be introduced to ascertain what paper is referred to; this must appear from the face of the document itself.
(emphasis added) Scarritt v. St. John’s M.E. Church,
The above-quoted passage from Scarritt was a good, eloquent and correct statement of the law when it was made one hundred and twenty-two years ago; it remains a good, eloquent and correct statement of the law today — and one that directly applies to the case at hand. In deciding this case, we should not ignore the longstanding legal history, tradition and body of judicial precedent behind the statute of frauds. Because it is clear that as a matter of law the land description contained in the alleged contract here does not satisfy the statute, the trial court’s grant of summary judgment was proper and should be affirmed.
. Indeed, even still in this appeal, Purchasers have continued to insist that the right-of-first refusal provision would bind the Sellers and their heirs. They argue in their reply brief that the right would be triggered by “a sale by the Randolphs or their heirs " of any portion of the retained 20 acres, (emphasis added)
. The motions also alleged that the land’s description was insufficiently definite and certain to support specific performance. The issue of sufficient definiteness and certainty necessary to support specific performance is very closely related to, though not identical with, that of the sufficiency required to satisfy the statute of frauds. See Granato v. Bravo,
. Shy v. Lewis was cited with approval by the Supreme Court in Ray v. Wooster,
. See 72 Am Jur 2d Statute of Frauds, § 375, pp. 903-904 (an obscure reference in a signed writing "to some other unspecified document” is insufficient to permit use of parol evidence to identify the thing referred to or relate it to the signed document). Obviously, in the case at bar the term "existing plat” as used in Exhibit B is no more than a mere reference to some other unspecified document. See also generally, Annotation: Admissibility of Parol Evidence to Connect Signed and Unsigned Documents Relied Upon as Memorandum to Satisfy Statute of Frauds,