Branson Hills Associates, L.P. v. Millington

907 S.W.2d 231, 1995 Mo. App. LEXIS 1572, 1995 WL 555659
CourtMissouri Court of Appeals
DecidedSeptember 19, 1995
DocketNo. 19984
StatusPublished
Cited by5 cases

This text of 907 S.W.2d 231 (Branson Hills Associates, L.P. v. Millington) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Branson Hills Associates, L.P. v. Millington, 907 S.W.2d 231, 1995 Mo. App. LEXIS 1572, 1995 WL 555659 (Mo. Ct. App. 1995).

Opinion

PARRISH, Judge.

This is an appeal of a judgment entered pursuant to a settlement agreement. Appellants contend the trial court erred in enforc-[232]*232mg the settlement agreement (1) because respondent faded to tender performance of its part of the agreement and (2) because the judgment imposes terms on appellants that were not part of the settlement agreement. The judgment, as hereafter modified, is affirmed.

Respondent is a limited partnership. It and appellants were parties to a contract by which appellants agreed to sell and respondent agreed to purchase certain real estate in Taney County, Missouri. The contract was dated October 14, 1992. The sale was not consummated.

Respondent filed suit for specific performance of the real estate contract. The case was set for trial June 6, 1994. On April 26, 1994, the parties negotiated a settlement agreement. A court reporter was present when the settlement agreement was reached. The agreement was dictated to the court reporter and, thereafter, transcribed. It required the parties to take certain actions prior to June 6,1994, and for judgment to be entered that date. The judgment was to include directives that would be completed at a June 9, 1994, “closing.” Satisfaction of judgment would then be entered.

The subject of the original contract between appellants and respondent was a 70-foot strip of land near the entrance to respondent’s real estate development, Branson Hills. Respondent was acquiring the real estate so that Flynn Road, the road leading to Branson Hills, could be expanded. Flynn Road was a two-lane road, 40 feet wide. It was to be expanded to a five-lane road, 110 feet wide.

After respondent brought its lawsuit, appellants contracted to sell real estate that adjoined the 70-foot strip to a third party, Prairie Point. Prairie Point also purchased an option to buy the 70-foot strip if appellants prevailed in the lawsuit. The contract with Prairie Point was conditioned on Prairie Point obtaining financing for the purchase of the property.

The settlement agreement between appellants and respondent provided three options — A, B and C. Option A would apply if Prairie Point acquired the property adjoining the 70-foot strip and exercised its option to purchase the 70-foot strip. Option B would apply if Prairie Point acquired the property adjoining the 70-foot strip but did not exercise the option to purchase the 70-foot strip. Option C would apply if Prairie Point did not acquire the property adjoining the 70-foot strip.

If Option C applied, appellants would be required to convey to respondent the 70-foot strip of land together with a small part of appellants’ adjoining land. Respondent wanted the additional land to improve the entrance to Branson Hills.

The settlement agreement further provided that respondent would pay costs necessary “to determine the boundaries of the modified 70-foot strip.” That provision was prefaced with the statement that “as far as the surveys are concerned,” respondent was “agreeing to do the absolute minimum” necessary for that determination. When the settlement agreement was dictated, respondent’s representative was asked if the dictated words were his understanding of the agreement. He said they were, adding, “But, specifically, we’ll have corner pins set.”

A discussion followed concerning the parties’ obligations to provide title insurance and the timing required “to get the surveys done.” Appellants imposed the requirement, “Ten days for survey, ten days for title.” The parties then agreed “that the surveys are to be completed within ten days and the title insurance commitments will be exchanged within ten days thereafter.”

The date of the settlement agreement was April 26,1994. The descriptions of the tracts of land involved in the transaction were prepared within ten days. The comer pins were set during the third week of May. A proposed judgment was prepared by respondent’s attorney and reviewed by appellants’ attorney.1 The proposed judgment was [233]*233changed in accordance with suggestions made by appellants.

The proposed judgment provided that appellants would pay one-half of the court reporter’s fee for the settlement agreement transcript. On June 2, 1994, appellants’ attorney forwarded payment of that amount to the court reporter. Shortly thereafter, the attorney who represented appellants told respondent’s representative that he was no longer representing appellants; that someone else would have to schedule the closing. He withdrew as appellants’ attorney.

The proposed judgment was not submitted to the trial court. Judgment was not entered June 6. Prairie Point did not obtain the financing it sought. It did not close the transactions that were the subject of its contracts with respondent. The transaction between appellants and respondent did not close on June 9.

Respondent filed its pleading entitled “Motion to Enforce Settlement Agreement and Motion for Judgment and Affidavit in Support Thereof’ on June 15, 1994. The trial court heard evidence on the motion September 14, 1994. It found respondent was entitled to the relief requested. On November 8, 1994, the trial court entered judgment enforcing “Option C” of the settlement agreement.

Appellants present two points on appeal. Point I is directed to respondent’s duties under the terms of the settlement agreement. It contends that a condition precedent to respondent obtaining specific performance was tender of performance of respondent’s obligations under the terms of the agreement; that respondent failed to meet this requirement. Point II is directed to the content of the judgment. It contends the terms of the judgment are not consistent with applicable provisions in the settlement agreement.

Point I

Before addressing Point I on its merits, this court must resolve whether it preserves anything for review. Respondent contends the point does not comply with Rule 84.04(d); that it states no evidentiary basis for the ruling it contends the trial court should have made.

Rule 84.04(d) requires that points relied on “state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.” The “wherein” requirement is met by including a statement in the point relied on that “inform[s] the appellate court wherein the evidence at trial supports the position the party asserts the trial court should have taken.” Bentlage v. Springgate, 793 S.W.2d 228, 229 (Mo.App.1990).

Point I states:

The trial court erred in enforcing the settlement agreement because Branson Hills is not entitled to specific performance of the agreement, in that it failed to tender performance of its portion of the agreement, which is a condition precedent to seeking specific performance.

As respondent suggests, the point does not identify “wherein” the record on appeal supports the ruling appellants contend the trial court should have made. Point I does not identify what actions respondent was required to take nor what evidence supports the claim that respondent did not fulfill its obligations. Point I, therefore, preserves nothing for appellate review. See In Interest of S.J.G., 871 S.W.2d 638, 641 (Mo.App.1994).

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Bluebook (online)
907 S.W.2d 231, 1995 Mo. App. LEXIS 1572, 1995 WL 555659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/branson-hills-associates-lp-v-millington-moctapp-1995.