Bydalek v. Brines

947 S.W.2d 135, 1997 Mo. App. LEXIS 1222, 1997 WL 358757
CourtMissouri Court of Appeals
DecidedJune 30, 1997
DocketNo. 21102
StatusPublished
Cited by8 cases

This text of 947 S.W.2d 135 (Bydalek v. Brines) 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
Bydalek v. Brines, 947 S.W.2d 135, 1997 Mo. App. LEXIS 1222, 1997 WL 358757 (Mo. Ct. App. 1997).

Opinion

CROW, Presiding Judge.

The trial court entered summary judgment declaring that an option by Plaintiff, Bobbi Bydalek, to buy certain real estate from Defendants (the Brineses and the Gehrses) expired September 12, 1995. Plaintiff appeals.

Because there was no trial (hence, no transcript), we mine the facts from the sources available to the trial court, i.e., the pleadings, three documents signed by the parties, excerpts from two depositions, and an affidavit of Defendant James P. Brines.2

On March 16, 1994, Plaintiff and all four Defendants signed two documents. One was denominated “Real Estate Purchase Agreement.” We henceforth refer to it as “the Agreement.” The other document was denominated “Option to Purchase.” We henceforth refer to it as “the Option.”

The Agreement recited that Plaintiff had earlier contracted to buy “certain unimproved real property” from Branson Commercial Property Investors Joint Venture (“BCPI”), and that Plaintiff expected that transaction “to close on or before May 2, 1994.” We henceforth refer to the “unimproved real property” that Plaintiff contracted to buy from BCPI as “the Land.”

[137]*137The Agreement declared that Plaintiff desired to sell the Land to Defendants, and that Defendants desired to buy the Land from Plaintiff. The price to be paid by Defendants to Plaintiff for the Land was $3,500,000. The Agreement required Defendants to deposit $50,000 in escrow within a week. At closing, the $50,000, together with an additional $2,950,000, was to be paid to Plaintiff. The remaining $500,000 was to be paid by two promissory notes: a $350,000 note at six percent interest per annum and a $150,000 note at no interest. Each note was to be due one year after the closing (or sooner if rights under the Option — discussed infra — were exercised).

The Agreement required Plaintiff to provide Defendants a “title commitment” showing Plaintiff to be the owner of “good and marketable fee simple title” to the Land, free and clear of all claims “including those arising out of a certain lawsuit now pending ... styled Roy Birdsong, Collier [sic] Kelling, Plaintiffs v. Bobbi Bydalek, et al., Defendants.” 3

The Agreement set the closing date as May 2,1994. As reported earlier, the Agreement recited that Plaintiff expected to acquire the Land from BCPI no later than that date. However, perhaps anticipating the possibility that Plaintiff would not acquire the Land from BCPI by that date, the Agreement provided:

“If Seller[4] is unable to acquire merchantable title to the [Land] and unable to close, through no fault of Buyer or Seller, on or before May 2,1994, Buyer and Seller agree to extend the closing through and including May 2,1995, and at the option of Buyer may be extended indefinitely thereafter pending acquisition of merchantable title by Seller. At Buyer’s option, Buyer may terminate this agreement at any. time after May 2, 1995, by giving notice as provided herein, in such event, the earnest money deposit shall be returned to Buyer, and neither Seller nor Buyer shall be obligated to the other upon such termination.”

We now turn to the Option.

The Option stated Defendants would sell the Land to Plaintiff for $4,500,000 provided that written notice “of the exercise of the option to purchase ... be given to [Defendants] by [Plaintiff] ... at any time before 5:00 p.m. Central Standard Time on the-day of_, 1995.” 5

The reason Plaintiff wanted an option to buy the Land back from Defendants for a million dollars more than she agreed to sell it to them for is found in excerpts from a deposition of Plaintiff presented to the trial court:

“Q. ... It was structured as a sale to the Gehrses and the Brineses; is that correct?
A. Well, legally, I guess, yes.
Q. Right. And then you took back an option to buy it back for roughly a million dollars more money than you were ... selling it to them for; is that correct? ... As I understand it, what you’re telling me is that this was really a disguised financing arrangement?
A. Well, I didn’t use the word ‘disguise,’ but that’s what it always was. I never would have — I did not sell this land for this ... low amount of money.
Q. Okay. But ... do you understand that it was structured as a sale?
A. Yes.
Q. And then you took back or had the right to buy it back from them within a certain period of time? ... [I]s that correct?
[138]*138A. Yes.
Q. But your testimony is that the purpose of all this was ... more or less a means of financing?
A. Yes, always.
Q. So that you could get the money, pay it to the people that were selling it to you, and then hopefully come up with the means of exercising this option and making a profit on it, presumably?
A. Correct.”

We glean from the above testimony and from deposition testimony of the lawyer who formerly represented Plaintiff that (a) Plaintiff did not have sufficient funds to buy the Land from BCPI, Ob) Defendants agreed to buy the Land from Plaintiff for $3,500,000, of which $3,000,000 was to be paid to Plaintiff in cash, (c) Plaintiff intended to use the cash she was to receive from Defendants to pay BCPI for the Land, (d) Defendants would receive title to the Land either directly from BCPI or from Plaintiff, and (e) Plaintiff would thereafter have a right under the Option to buy the Land from Defendants if Plaintiff could obtain financing to pay the $4,500,000 purchase price in the Option.

We deduce from the deposition of Plaintiffs former lawyer that after Plaintiff and Defendants signed the Agreement and the Option, the Birdsong suit went to trial. The lawyer narrated:

“[Plaintiff was] successful in the lawsuit. The losing parties who had claimed an interest in the [Land] had not put up a bond, and it was my understanding ... that if they didn’t put up a bond you could go ahead just like any judgment, and the [Land] was free of the judgment if there was no bond up and the property could be sold. And the title company had issued a title commitment agreeing to insure the title to the [Land]. Then when we got to the closing ... the title company ... changed their [sic] mind and changed the commitment at the time of closing and refused to insure the title and refused to insure over the loss. So as a consequence of the closing, supposedly good title, marketable title or whatever couldn’t be conveyed to Brines and Gehrs.... ”

Although the briefs and the record are murky as to what occurred next, we divine that the next significant event was a change in attitude by the title insurance company. We base that supposition on the following averment in the affidavit of Defendant James P. Brines: “Plaintiff was finally able to acquire a commitment for title insurance insuring merchantable title but not its marketability.”

That development was apparently the stimulus for a conference between Plaintiff and Defendants (and their lawyers) on September 9, 1994.

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Cite This Page — Counsel Stack

Bluebook (online)
947 S.W.2d 135, 1997 Mo. App. LEXIS 1222, 1997 WL 358757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bydalek-v-brines-moctapp-1997.