Shelton v. Williamson

975 S.W.2d 508, 1998 Mo. App. LEXIS 1660
CourtMissouri Court of Appeals
DecidedSeptember 18, 1998
DocketNo. 21978
StatusPublished
Cited by1 cases

This text of 975 S.W.2d 508 (Shelton v. Williamson) 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
Shelton v. Williamson, 975 S.W.2d 508, 1998 Mo. App. LEXIS 1660 (Mo. Ct. App. 1998).

Opinion

SHRUM, Presiding Judge.

Mark D. Shelton (Plaintiff) filed a claim in the probate division of the Lawrence County Circuit Court seeking “specific execution of the contract for the sale of real estate” pursuant to § 473.303-310, RSMo 1994. The claim was filed in the Estate of Herbert Looney (“Decedent”).

At trial, Plaintiff produced no single written contract, but presented what the court characterized as “extensive memoranda by the deceased [that] sufficiently set forth the terms of the agreement between [Decedent] and Plaintiff, including the parties, subject matter, consideration, price and their mutual promises to satisfy [§ ] 432.010 RSMo.”1 The court granted Plaintiff’s request for specific performance and ordered Monica Williamson, personal representative (“Defendant”) to convey the subject real estate once Plaintiff paid the consideration yet due.2 This appeal followed.

[512]*512Defendant’s brief presents six points relied on. First, Defendant charges the “best evidence” rule was violated when exhibits “A” and “B” (the “extensive memoranda” mentioned in the judgment) were admitted. Her second and third points assert that exhibits “A” and “B” were not sufficient to satisfy the statute of frauds requirement of a writing to memorialize the contract. Defendant’s fourth point is that the trial court committed reversible error when it admitted parol evidence to prove the contract without first requiring evidence of part performance of the contract. Her fifth point claims that there was insufficient evidence to support a finding of part performance of the contract. Defendant’s final point further complains about the sufficiency of the evidence. We affirm in part and reverse in part with directions.

FACTS

Plaintiff’s association with Decedent began in the early 1980s. Their relationship included Plaintiff working for Decedent and doing business together.

When Decedent died in February 1996, Austin Barrett was initially appointed personal representative of his estate. Barrett testified that soon after his appointment, Plaintiff called and said that he was “buying the property in the back of [Decedent’s] property.” When Barrett asked if he had “proof of that,” Plaintiff answered that he did and “he [Plaintiff] brought me in the original canceled cheeks.” Plaintiffs original checks were admitted at trial as exhibit “C.” They showed monthly payments of $250 by Plaintiff to Decedent from August 1992 through July 1994 and $300 monthly payments from August 1994 through May 1996.

About the time Plaintiff produced his checks, Barrett received a “folder” of papers fi*om Mary Morris (Decedent’s mother). At trial, these documents were marked exhibit “A” and put in evidence over Defendant’s objection that they violated the best evidence rule.

Barrett testified that Mary Morris had removed the exhibit “A” documents from a filing cabinet in Decedent’s house soon after his death. Barrett explained: “[S]he [Mary Morris] ... went over there and felt like it needed to be up to — so nobody would take them ... because I guess she was concerned about ... the other lady that was living there.”

The folder (exhibit “A”) contains 36 pages. For the most part, the documents are photocopies of the monthly cheeks shown in exhibit “C.” Also, many pages contain Decedent’s handwritten notes about why the payments were being made. In part, the notations are original writings, but most are photocopies. Barrett testified: “It appears that [Decedent] had taken one of these [pages that contained handwritten notations] ... and put a check ... with a staple when he was copying it ... each time.” Barrett further explained: “I think that’s what [Decedent] was trying to do, is make copies of the checks so he’d have it as a receipt for himself that he was paid.”

As to the whereabouts of the original exhibit “A” documents, Barrett testified:

“Q. Did you ask her [Mary Morris] where the originals were on these?
“A No. I didn’t ask her that_ That’s all she said she had, and that’s all she said was there.
[[Image here]]
“Q. And you didn’t ask her where the originals were or why these had copies on them?
“A. Well, because I didn’t know at the time until [Plaintiff] got ahold of me and said he had the original checks. Since they were copies of checks, I assumed that [Decedent] was making copies of checks, that he [Plaintiff] had the original cheeks since it was his checking account, and that the copies — you know, [Decedent] was making a copy for himself.”

At trial, Plaintiff identified exhibit “B” as “receipts ... [Decedent] gave me [on] the purchase of 80 acres of land.” Plaintiff described exhibit “B” as a record of his “transaction” with Decedent concerning the subject real estate. He explained the creation of this record as follows.

Plaintiff personally delivered each payment to Decedent, whereon Decedent would [513]*513give. Plaintiff a receipt. Each receipt, however, was for the previous month’s payment and consisted of a photocopy of the prior month’s check with Decedent’s handwritten notations or other materials describing their transaction. Generally, the handwritten notations and other materials (such as real estate tax receipts containing legal descriptions) were also photocopies. Plaintiff testified that it appeared to him that Decedent had established a “matrix” to serve as a receipt and as monthly confirmation of their agreement. Continuing, Plaintiff testified that apparently each time Plaintiff paid Decedent, he (Decedent) put that month’s check on the matrix and then made two copies, one for himself and one for Plaintiff. Consequently, exhibits “A” and “B” are identical in many respects.

The documents in exhibits “A” and “B” contained various handwritten explanations by Decedent concerning the photocopied cheeks. For example, on one of the forms repeatedly used by Decedent, he wrote:

“Started Aug 1-1992 on land below
[[Image here]]
“land in Rear
“357.00 Per A AT 6% INT.”

At the bottom of this particular form, Decedent photocopied two tax receipts containing land descriptions. One receipt describes “59.50 ACRES-S 1/2 SW NE (Ex W 2 rds) & N pt NW SE (Ex W 2 rds) & 6 acres W side NE SE ... See ... 31 Twp ... 27 Range ... 28.” The other describes “19.73 ACRES — E 1/2 NE NW ... Sec ... 31 Twp_ 27 Range ... 28.” Decedent’s original signature appears on at least two of these forms.

On another form used by Decedent, he wrote the following above each photocopied check: “Started Aug 1-1992 on 80 acres more or less on the Rear of 140 acres.”

After Austin Barrett verified Plaintiffs cancelled checks against the receipts prepared by Decedent, he calculated the balance due on the land. Barrett intended to consummate the sale. However, he resigned as personal representative without closing the land sale with Plaintiff. Defendant was appointed as successor personal representative and this suit followed.

The trial court found that the documents in evidence were sufficient to satisfy all requirements of the statute of frauds and ordered all parties to specifically perform the contract. Defendant appeals from that judgment.

STANDARD OF REVIEW

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Related

In Re Estate of Looney
975 S.W.2d 508 (Missouri Court of Appeals, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
975 S.W.2d 508, 1998 Mo. App. LEXIS 1660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shelton-v-williamson-moctapp-1998.