Flavan v. Cundiff

83 S.W.3d 18, 2002 Mo. App. LEXIS 1005, 2002 WL 985782
CourtMissouri Court of Appeals
DecidedMay 14, 2002
DocketNo. ED 79834
StatusPublished
Cited by8 cases

This text of 83 S.W.3d 18 (Flavan v. Cundiff) 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
Flavan v. Cundiff, 83 S.W.3d 18, 2002 Mo. App. LEXIS 1005, 2002 WL 985782 (Mo. Ct. App. 2002).

Opinion

MARY R. RUSSELL, Judge.

David Flavan (“Client”) appeals the trial court’s grant of summary judgment in favor of Ellsworth Cundiff (“Attorney”) and Cundiff, Turken, and Londoff, LLP (“Firm”). Attorney and Firm unsuccessfully defended Client in an action filed against him by James D. Lundstrom and John Kanas to recover sales commission for the sale of Client’s riverboat. Client then brought a malpractice suit against Attorney and Firm, claiming Attorney was negligent in several respects in Client’s defense. The trial court granted Attorney and Firm’s motion for summary judgment, and Client now appeals.

Client asserts five points of error. First, he argues the trial court erred by deciding whether the statute of frauds defense was applicable in the underlying case because that was an issue for a jury to determine. In his second and third points, he claims the trial court incorrectly determined that the statute of frauds was not a viable defense in the underlying action because the sale of the boat was contingent upon the passage of specific legislation and because the purchaser did not meet the Client’s specifications. Fourth, Client alleges Attorney and Firm did not meet their burden of proof in that their motion for summary judgment violated Rule 74.04(c). In his final point, Client claims the trial court granted summary judgment without addressing his arguments that Attorney and Firm failed to inform him of his right to a jury, to request a jury trial, and to request specific findings of fact and conclusions of law in the underlying case.

We address Client’s first and fifth points on appeal, affirming the trial court’s ruling as to his first point as a matter of first impression and dismissing his fifth point. With respect to Client’s second, third, and fourth points on appeal, we affirm the trial court’s judgment pursuant to Rule 84.16(b).

Client Is Sued For Sales Commission In the Underlying Lawsuit

Over the last few decades, Lundstrom and Kanas occasionally combined efforts in [20]*20land development opportunities. One such development possibility was a water park in St. Charles- County. Client owned a motel and restaurant in the area and was interested in the project. Lundstrom and Kanas first met with Client in 1985. Lundstrom and Kanas eventually purchased property in St. Charles County, and Client agreed to pursue an investor for their proposed water park. Meanwhile Lundstrom and Kanas developed a close relationship with Client over the next several years.

Lundstrom moved to Las Vegas in June or July of 1991, and Client, upon learning this, mentioned the possibility of gambling coming to St. Charles. Client told Lund-strom and Kanas that he owned a riverboat in St. Charles and hoped to operate it if gambling were legalized in Missouri. In July or August of 1991, Lundstrom called Client and suggested that he and Kanas find a purchaser for the riverboat in exchange for a commission. Client agreed and offered them 10 percent commission. The subject of the water park did not arise during this discussion. Kanas, who was not a party to the conversation, later learned of the agreement from Lundstrom.

When proposing that he and Kanas sell Client’s boat, Lundstrom asked Client for pictures, brochures, and other information about the boat, and Client complied with the request. Lundstrom and Kanas thereafter began their campaign to sell Client’s boat. They contacted Palace Station, later Station Casinos, Inc. (“Purchaser”), as a potential buyer, and entered into discussions with Purchaser on August 30, 1991.

Lundstrom and Kanas met with Purchaser’s representatives for three days in mid-September 1991 to negotiate and tour the riverboat. In addition, Lundstrom and Kanas showed Purchaser’s representatives the water park site, but they learned early in the discussion that Purchaser’s only interest was in the riverboat and not the water park. Purchaser’s representatives testified that as a result, ensuing discussions between Lundstrom and Kanas and Purchaser involved only the riverboat and not the water park.

Purchaser’s representatives presented a proposal to purchase Client’s boat on October 9, 1991. Client never saw the proposal. Kanas discussed it with Purchaser’s representatives. Later that month, Purchaser’s representatives and its attorney met with Lundstrom and Kanas in St. Charles so Purchaser’s representatives could present another proposal to Client, but Lundstrom and Kanas never saw the proposal.

At some point in the negotiation process, Purchaser’s representatives and its attorney, Lundstrom and Kanas, and Client met in Client’s attorney’s office. Client and his attorney and Purchaser’s representative and its attorney conversed in a conference room while Lundstrom and Ka-nas were not present. Following this meeting, Lundstrom and Kanas did not have any communication with Purchaser.

Lundstrom and Kanas prepared and sent Client a written contract on December 6, 1991, regarding their commission agreement. Client did not sign the writing. In addition, even though he was in communication with Lundstrom and Kanas regarding the sale negotiations with Purchaser, he did not inform them of the eventual sale of his boat to Purchaser. Lundstrom and Kanas learned of the sale through the Las Vegas newspapers.

Lundstrom’s trial testimony indicated that he asked Client whether he wanted Lundstrom and Kanas to find a purchaser for the riverboat, and Client answered affirmatively and offered a 10 percent commission to be paid on closing. He said that the sale was contingent on the pas[21]*21sage of the proposed riverboat gambling legislation to be voted on in November 1992.

In his testimony at trial, Client denied any agreement between himself and Lund-strom and Kanas and attributed their efforts to sell his boat as collateral to their efforts to develop their own water park. Lundstrom and Kanas admitted that they initially hoped to promote the water park in conjunction with selling Client’s riverboat, but they abandoned the water park effort with respect to Purchaser once they realized Purchaser was only interested in the boat. In his deposition, a Purchaser representative testified that without the gaming site, Purchaser’s representatives otherwise would not have addressed the water park opportunity.

Purchaser’s representatives further testified in depositions that they first met Client when Lundstrom and Kanas introduced them and, until the October meeting with Client’s attorney, their only contact with Client was through Lundstrom and Kanas. They testified that Lundstrom and Kanas’ role in their acquisition of Client’s riverboat was critical, and they believed Lundstrom and Kanas’ efforts were deserving of a commission for selling the boat. Purchaser’s representatives testified that on January 13, 1993, the asset purchase agreement for the riverboat’s purchase was entered between Purchaser and the corporation that Client, as its only shareholder, controlled.

Lundstrom and Kanas subsequently brought suit against Client to recover their commission per their oral contract with him. Following the presentation of Lund-strom and Kanas’ evidence, Attorney made an oral motion for directed verdict wherein he argued that an oral agreement to answer for someone else’s debt violates section 432.010 RSMo 2000,1 commonly known as the statute of frauds. Attorney had not argued the statute of frauds defense previously, either in his answer or earlier in the trial, and he did not seek to amend his answer.

The case was tried in the Circuit Court of St.

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Cite This Page — Counsel Stack

Bluebook (online)
83 S.W.3d 18, 2002 Mo. App. LEXIS 1005, 2002 WL 985782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flavan-v-cundiff-moctapp-2002.