JOSEPH M. ELLIS, Chief Judge.
Appellants, Dwane A. Wills II (‘Wills”) and Wills Professional Services, Inc. (“WPS”), appeal the grant of summary judgment to respondents, Julie R. Whit-lock (“Whitlock,” formerly Julie R. Wills), Scott and Julie Fuemmeler (“the Fuem-melers”), and Audsley Monument Company, LLC (“AMC”), on their actions against one or more of the respondents to enforce collateral restrictions on the sale of a private cemetery contained in a contract executed by Whitlock, and for
prima facie
tort. The Circuit Court of Saline County entered summary judgment against Wills and WPS on all but one of the nine claims asserted in their second amended petition, and certified its judgments as final for purposes of immediate appellate review pursuant to Rule 74.01(b), expressly determining that there was “no just reason for delay with respect thereto.” In this appeal, Wills and WPS claim the circuit court erred in entering summary judgment against them because genuine issues of material fact remain in dispute and respondents were not entitled to judgment as a matter of law, in that appellants pleaded one or more viable causes of action against respondents. We reverse the trial court’s grant of summary judgment to respondents and remand for a trial on the merits of the petition.
Standard of Review
The standard of review governing this case was aptly summarized in
Butler v. Burlington Northern & Santa Fe Railway Co.,
119 S.W.3d 620 (Mo.App. W.D.2003):
A movant is entitled to summary judgment if the motion for summary judgment and the response thereto show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. We view the record in the light most favorable to the party against whom summary judgment is entered and accord the non-movant the benefit of all reasonable inferences from the record. We take as true the facts set forth by affidavit or otherwise in support of the moving party’s motion unless they are contradicted by the nonmoving party’s response to the summary judgment motion. The non-moving party’s response must show the existence of some genuine dispute as to one of the material facts necessary to the plaintiffs right to recover.
Id.
at 621-22 (quoting
Peck v. Alliance Gen. Ins. Co.,
998 S.W.2d 71, 74 (Mo. App. E.D.1999)). Furthermore, as stated by the Missouri Supreme Court in
Harjoe v. Herz Financial,
108 S.W.3d 653, 654 (Mo. banc 2003): “Review is de novo. Because the trial court makes its decision based upon the record submitted and the law, this Court need not defer to the order of the trial court granting summary judgment.” “To succeed on summary judgment, a defendant must show: (1) undisputed facts negating any of plaintiffs’ required elements; (2) the plaintiffs, after adequate time for discovery, cannot produce evidence sufficient to find one of plaintiffs’ required elements; or (3) there is no genuine dispute as to each fact necessary to support a properly-pleaded affirmative defense.”
Chouteau Auto Mart, Inc. v. First Bank of Mo.,
55 S.W.3d 358, 360 (Mo. banc 2001) (emphasis omitted).
Facts, Background, and Procedural History of the Case
Viewed in the light most favorable to Wills and WPS, the record reflects the following. On December 11, 1997, after protracted, expensive, and bitter divorce litigation which took place over a period of several years, the Circuit Court of Saline County entered a judgment dissolving the marriage of Wills and Whitlock, who had executed, earlier the same day, a privately-negotiated Separation and Property Settlement Agreement (“Separation Agreement”). Part of the Separation Agreement, which the circuit court expressly incorporated into its judgment of dissolution “by reference as though fully set forth herein,” was a document titled Contract and Agreement (“Contract”). Among other things, the Contract (which was executed on or about December 9, 1997 by Wills, WPS, Whitlock, and another party not involved in this appeal) required Wills and WPS to convey to Whitlock, by quitclaim deed, all their interest in certain real property — namely, a fifteen-acre tract of land known as the Sunset Memorial Gardens Cemetery (“Cemetery”) located in Marshall, Saline County, Missouri.
The Contract further provided that “[u]ntil December 9, 2000, [Whitlock] shall not directly or indirectly sell this real property to any person, directly or indirectly, competing with [Wills] or [WPS],
or any successor or assignor. Further, [Whitlock] will not compete, directly or indirectly, by operation of [Cemetery] with [Wills or WPS]. Operation of the cemetery, alone, shall not be competition with [Wills or WPS].” Whitlock further agreed that:
Should [she] receive an offer to buy or make an offer to sell [Cemetery], [Wills] or [WPS] shall be given forty-five days written notice of the proposed sale and the terms thereof and a first option to purchase [Cemetery] on the same terms and conditions as such proposed sale, with a five (5) percent increase in the purchase price, such purchase by [Wills] and [WPS] to close within forty-five business days after receipt of written notice as herein provided.
Moreover, the parties to the Contract agreed that these “provisions may be enforced by a court of equity, by injunction or as otherwise provided by law.” Finally, the parties all expressly waived their rights to trial by jury “with regard to any disputes arising under” either the Contract or the Separation Agreement.
In performance of their obligations under the Contract, on February 23, 1998, Wills and WPS executed a quitclaim deed, which was prepared by one of Whitlock’s divorce attorneys, transferring their ownership interest in the Cemetery to Whit
lock. The deed, which was recorded on March 19, 1998, contained none of the restrictions on direct or indirect sale to a competitor that were set forth in the Contract, nor any language regarding a right of first refusal. Less than two weeks later (March 30, 1998), Whitlock entered into a contract to sell the Cemetery to the Fuemmelers
for the sum of $55,000.00.
By certified letter dated the same day, Whitlock notified Wills of the proposed sale as follows: “This is notice per addendum that a contract has been signed and accepted by me on [Cemetery], According to our agreement this is your legal 45 day notice of first option to purchase property per the addendum. The sales price exceeded at 5% would be $57,750.00 with 2,000 earnest money down.” This letter, which did not identify the buyers and, therefore, did not allow appellants to determine if they were direct or indirect competitors of theirs, was received by Wills on March 31, 1998. Upon subsequent independent investigation by appellants, within a week or so they discovered that the buyers were the Fuemmelers. Later, Wills notified Whitlock of his objections to the proposed sale.
After receiving notice of the pending sale of the Cemetery, independently discovering the identity of the buyers, and notifying Whitlock of their objections to the proposed sale, appellants did not exercise their Contractual right of first refusal within the forty-five business day window specified in the Contract. Instead, on May 25, 1998, they filed a petition in the Circuit Court of Saline County seeking, among other forms of both equitable and legal relief, the issuance of an injunction preventing the proposed sale to a competitor based on the restrictions contained in the Contract. Shortly thereafter, appellants also filed a notice of lis pendens. Upon learning of the May 25, 1998 lawsuit and accompanying notice of lis pendens, the title company which was to have been involved in the sale, which was scheduled to close on June 2, 1998, refused to issue title insurance on the property. By May 28, 1998, respondents all knew that the title company had refused to issue a title insurance policy on the Cemetery “because Dwane had filed” either the May 25, 1998 lawsuit, the notice of lis pendens, or both.
Whitlock did not tell either of the Fuem-melers why appellants had objected to the proposed sale.
Around March or April 1998, after seeking out and initiating contact with the holder of a negotiable promissory note and deed of trust securing a Nevada, Vernon County, Missouri, funeral home owned by appellants, Whitlock purchased the note. In May 1998, Whitlock foreclosed on the mortgage and forced the sale of the funeral home in June 1998.
On August 28, 1998, while appellants’ May 25, 1998 lawsuit was still pending and three months after the proposed sale had died on the vine due to Whitlock’s failure to obtain title insurance, Whitlock signed and delivered a quitclaim deed conveying her ownership interest in the Cemetery to the Fuemmelers.
The Fuemmel-ers then immediately took possession of and began operating the Cemetery. The August 28, 1998 quitclaim deed, which was recorded the very same day, recited that Whitlock,
in consideration of the sum of TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION, to her paid by the Grantees [the Fuemmel-ers] (the receipt of which is hereby acknowledged), does by these presents REMISE, RELEASE, AND FOREVER QUIT CLAIM unto the [Fuemmel-ers] the following described lots, tracts or parcels of land, being and situate in the County of Saline, and State of Missouri, to wit: [the Cemetery].
In addition to similar deposition testimony we need not recount here, the record contains sworn affidavits signed by Whitlock and the Fuemmelers, dated February 17 and 18, 2003, stating that the Cemetery was “gifted” to the Fuemmelers by Whit-lock without Whitlock receiving or expecting to receive “payment or compensation of any kind whatsoever” from the Fuem-melers, either at the time of the “gift” or in the future. The record also contains a sworn August 26, 2002 affidavit signed by another former husband of Whitlock’s, Merle Minkler (“the Minkler affidavit”), which states that Minkler “had a conversation with Julie Whitlock in which she told [him] that she had an agreement with Scott Fuemmeler that Fuemmeler would pay her for the Sunset Memorial Gardens Cemetery after Dwane Wills’ lawsuit was resolved.”
On or about October 13,1999, appellants voluntarily dismissed, without prejudice, them May 25, 1998 lawsuit against respondents. Approximately six months later (April 25, 2000), they filed the action
sub judice.
On May 7, 2003, the circuit court entered summary judgment against appellants on Counts I through VII of their nine-count second amended petition,
find
ing that they were all barred as a matter of law since the Contractual provisions prohibiting Whitlock from directly or indirectly selling the Cemetery to a competitor and providing for a right of first refusal were merged into and did not survive the February 23, 1998 quitclaim deed from appellants to Whitlock. On June 12, 2003, the circuit court also entered summary judgment against appellants on Count IX of the petition (which alleged that Whitlock had committed one or more
prima facie
torts), finding that since other, more traditional tort causes of action were available, Count IX did not state a claim upon which relief could be granted.
This appeal followed.
Analysis
I.
In their first point, appellants argue that the circuit court erred in entering summary judgment against them on Counts I through VII of their second amended petition because the Contractual restrictions prohibiting sale of the Cemetery to a competitor and providing for a right of first refusal should it later be sold to any party were not merged into the February 23, 1998 quitclaim deed from appellants to Whitlock, in that those provisions were collateral matters which survived the deed.
The circuit court ruled that because the February 23, 1998 quitclaim deed from appellants to Whitlock contained no language prohibiting her from subsequently directly or indirectly selling the Cemetery to appellants’ business competitors, the deed’s execution and acceptance “resulted in a full, complete and effectual transfer of all [appellants’] right, title, interest and claims to the Cemetery premises and property” to Whitlock, who,
ex legibus,
was also no longer bound by the terms of the Contract prohibiting such a sale on her part. In their briefs, respondents contend that this ruling was correct since the obligations of the Contract were discharged by and merged into the quitclaim deed exe-
euted by appellants and accepted by respondents. We disagree, as the common law doctrine of merger by deed is patently inapplicable to this case.
The doctrine of merger is a creature of policy derived by the courts from the ancient rule of
caveat emptor. Crowder v. Vandendeale,
564 S.W.2d 879, 881 n. 3 (Mo. banc 1978). Under this doctrine, when a deed has been executed and accepted as performance of an executory contract to convey real estate, the contract becomes
functus
officio
and the rights of the parties rest thereafter solely on the deed.
Artman v. O’Brien,
398 S.W.2d 24, 27 (Mo.App. E.D.1965). In other words, the terms of the contract of sale are merged into the deed, “so that the obligations of the sale contract are extinguished when the deed is delivered.”
Smith v. Old Warson Dev. Co.,
479 S.W.2d 795, 800 (Mo. banc 1972).
However, there are several exceptions to the merger doctrine, including fraud, accident, or mistake.
Estate of Kielhafher,
639 S.W.2d 115, 117 (Mo.App. E.D.1982). Furthermore, “contractual provisions as to consideration to be paid by the purchaser are ordinarily not merged in the deed.”
Don King Equip. Co. v. Double D Tractor Parts,
115 S.W.3d 363, 374 (MoApp. S.D.2003) (internal quotation marks omitted). Moreover, collateral matters ancillary to the transfer are also excluded from operation of the merger doctrine:
The essence of that doctrine is that when a vendor offers a deed and the vendee accepts, that generally constitutes a new agreement as to the form and contents of the deed which supersedes any contrary previous agreement. By reason of that underlying rationale, the doctrine is basically confined to the sufficiency of the deed itself and does not touch other aspects of the original sales agreement. Those latter aspects are generally referred to in the cases as ‘collateral matters’ which axe not affected by the doctrine of merger.
Hutchens Bros., Inc. v. Brownsberger,
624 S.W.2d 538, 540 (MoApp. W.D.1981). Among such collateral matters are contractual obligations relating to the performance of acts in the future,
Don King Equip. Co.,
115 S.W.3d at 374, and express contractual provisions holding open a condition,
Kielhafner,
639 S.W.2d at 117, whether the contemplated future performance is due from the vendor or the vendee.
Hutchens Bros.,
624 S.W.2d at 540-41. Accordingly, this court has held that “[w]here there are items of agreement outside of and beyond the conveyance itself, particularly with respect to obligations which are to be performed at a time subsequent to the date of the deed, there can be no merger so as to cut off the future obligation.”
Id.
at 540.
Applying the foregoing principles to the case at bar, there clearly was no merger which could operate to extinguish Whitlock’s Contractual obligation to refrain from directly or indirectly selling the Cemetery to any of the direct or indirect business competitors of Wills or WPS during the future three-year period set forth
in the Contract. The same is true of appellants’ Contractual right of first refusal upon Whitlock’s proposed sale of the Cemetery to any party, as they are both obviously aspects of the transaction which were outside of and beyond the original conveyance itself and collateral thereto:
[T]he execution and delivery of the deed to the land was only an act preliminary to the fulfillment of the contract, and the deed had to be given before the other covenants pursuant to the terms of the contract could be performed.
[Thus] no presumption arises that the acceptance of the deed was an execution of the whole contract. In fact, as shown by the record, the contract contained other covenants, the performance of which could not be executed by acceptance of the deed.
Tighe v. Locke,
299 S.W. 105,108 (Mo.App. W.D.1926). “The fact that appellant executed the deed and thereby conveyed his right, title, and interest pursuant to the terms of the separation agreement cannot be interpreted as a decision to relieve respondent of her responsibility under the terms of the separation agreement.”
Hazlett v. Clark,
652 S.W.2d 135, 137 (Mo. App. W.D.1983).
In
Wilson v. Wilson,
115 Mo.App. 641, 92 S.W. 145 (W.D.1906), this court firmly rejected a litigant’s attempt to invoke the merger doctrine to relieve himself of a bothersome collateral contractual obligation as follows:
[W]hen, as in this case, the executory contract embraces other agreements, undertakings and obligations in addition to those relating to the conveyance of real estate and imposes upon both parties the duty of performing executory acts, the contract should not be classified with those exclusively pertaining to the conveyance of real estate, and the delivery of a deed made pursuant to the terms of such contract is the execution of but one of several executory acts of equal dignity, and therefore cannot in any way affect the vitality of the original contract because it does not purport to deal with the entire subject-matter, but only with a part thereof. The deed may contain covenants and agreements that change or abrogate those of the executo-ry contract, but in the absence of such special provision the contract is unaffected by the principle of merger and remains unimpaired.
⅜ * *
It would be a perversion of the doctrine of merger, and require an interpretation thereof not sustained by any of the authorities, to which we have been cited, to hold it applicable in this case.
Id.
at 147. Though decided nearly a century ago, this court’s decision in
Wilson
applies with equal force today. As in
Wilson,
on the facts of this case, it would constitute a manifest injustice and be contrary to extensive case law to hold that the policy-based common law doctrine of merger by deed operated to release Whit-lock from her various executory Contractual obligations. Accordingly, the circuit court’s sole stated legal rationale for entering summary judgment against appellants on Counts I through VII of their second amended petition was patently erroneous.
II.
While this would normally conclude our analysis of appellants’ first point relied on, in their briefs, respondents also present a number of alternative legal theories, which, they contend, are adequate to sustain the circuit court’s grant of summary judgment in their favor on Counts I through VII of appellants’ second amended petition. Since “we are to affirm the trial court’s grant of summary judgment for the
respondent if the same is correct under any theory supported by the record developed below and presented on appeal,”
Victory Hills Ltd. P’ship I v. Nations Bank, N.A.,
28 S.W.3d 322, 327 (Mo.App. W.D. 2000), we must address those additional theories.
First, citing
Hendricks v. Northcutt,
820 S.W.2d 689, 692 (Mo.App. S.D. 1991), and
Peet v. Randolph,
33 S.W.3d 614, 619 (Mo.App. E.D.2000), respondents argue that in as much as the summary judgment record establishes that there is no genuine dispute as to each fact necessary to support their entitlement to summary judgment on their affirmative defense that the August 28, 1998 conveyance of the Cemetery from Whitlock to the Fuemmelers was a “gift” rather than a “sale,” the transfer was not subject to the Contractual restriction on direct or indirect sale of the property to a direct or indirect business competitor of appellants and summary judgment was proper. We disagree.
This case involves a gift inter
vi-vos,
which our Supreme Court has defined as “a voluntary transfer of property by the owner to another, without any consideration or compensation as an incentive or motive for the transaction.”
Pilkington v. Wheat,
330 Mo. 767, 51 S.W.2d 42, 44 (1932). The essential elements for a valid
inter vivos
gift of real property are: (1) a present intention to make a gift to the grantee on the part of the grantor; (2) the grantor’s execution of and delivery to the grantee of a deed or other proper written instrument evidencing the gift; and (3) acceptance of the deed or instrument by the grantee.
Deck v. Deck,
64 S.W.3d 870, 874 (MoApp. E.D.2002).
The party claiming that an
inter vivos
gift has been made (in this case, the respondents) bears the burden of proving these three required elements by clear and convincing evidence.
In re Estate of Passman,
537 S.W.2d 380, 384 (Mo. banc 1976). The trier of fact determines whether a valid gift
inter vivos
exists.
Id.
at 383.
We turn now to the question of intent, which, in
Edie v. Coleman,
235 Mo.App. 1289, 141 S.W.2d 238 (W.D.1940), this court discussed in a general sense as follows:
The matter of intention is seldom, if ever, capable of direct or positive proof, but is arrived at by such just and reasonable deductions from the acts and facts proven. Intent is an emotion or operation of the mind, and can usually be shown only by acts, declarations, and circumstances known to the party charged with the intent. The intent of a person cannot be proven by direct and positive evidence. It is a question of fact, to be proven, like any other fact, by acts, conduct, and circumstances. The intent with which an act is done denotes
a state of the mind, and it can be proved only from expressions, or conduct, or both, considered in the light of the given circumstances.
Id.
at 245 (internal citations, quotation marks, and paragraph style omitted). Accordingly, our Supreme Court has held that whether a purported donor has the requisite donative intent to make a valid gift is a question of fact, which is to be determined “under all the facts and circumstances connected with the transaction.”
Lewis v. Lewis,
354 Mo. 415, 189 S.W.2d 557, 560 (1945). Thus, a purported donor’s “[c]onduct is an enlightening ingredient in discerning” his or her donative intent.
In re Estate of Hoffman,
490 S.W.2d 98, 103 (Mo.1973).
For all these reasons, this court has observed that summary judgment “is rarely appropriate in cases involving proof of such elusive facts as intent, motive, fraud, duress, undue influence, mental capacity, and the like — which must in nearly every case be proved by circumstantial evidence.”
Estate of Heidt, 785
S.W.2d 668, 670 (Mo.App. W.D.1990). Indeed, “[i]t has been consistently held that cases in which the underlying issue is one of motivation, intent, or some other subjective fact are particularly inappropriate for summary judgment.”
Ganaway v. Shelter Mut. Ins. Co.,
795 S.W.2d 554, 562 (Mo.App. S.D. 1990).
Respondents nevertheless maintain that on this record, there is no genuine dispute as to each fact necessary to support their affirmative defense of gift
as a matter of law.
We disagree, as this would require a finding of donative intent on the part of Whitlock, a subjective and often elusive issue of fact which must be established by clear and convincing evidence, and is particularly inappropriate for determination through the summary judgment process. That is to say, the conduct, acts, and words of the parties to the purported “gift” transaction prior to its consummation and the circumstances surrounding that transaction are sufficient to raise a triable issue of fact on the issue of Whitlock’s donative intent, particularly in light of the fact that respondents bore the burden of proving such intent by clear and convincing evidence.
“When determining whether summary judgment is proper, the evidence and all reasonable inferences are to be viewed in the light most favorable to the non-moving party.”
United Mo. Bank, N.A. v. City of Grandview,
105 S.W.3d 890, 898 (Mo.App. W.D.2003). “[T]he rule that the non-movant is ‘given the benefit of all reasonable inferences’ means that if the movant requires an inference to establish his right to judgment as a matter of law, and the evidence reasonably supports any inference other than (or in addition to) the movant’s inference, a genuine dispute exists and the movant’s prima facie showing fails.”
ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
854 S.W.2d 371, 382 (Mo. banc 1993). Whether a particular inference drawn from a given state of facts is reasonable is a question of law.
Hoock v. S.S. Kresge Co.,
230 S.W.2d 758, 760 (Mo. banc 1950);
Tharp v. Monsees,
327 S.W.2d 889, 899 (Mo. banc 1959). “[I]f the record contains competent evidence that two plausible, but contradictory accounts of essential facts exist, then a genuine issue of material fact remains to be resolved, because fair minded people, exercising reasonable judgment could reach different conclusions on the issue in controversy.”
Larison v. Pub. Water Supply Dist.
#
1,
998 S.W.2d 192, 196 (Mo. App. W.D.1999). “A ‘genuine issue’ is a dispute that is real, not merely argumentative, imaginary or frivolous. Where the ‘genuine issues’ raised by the non-movant are merely argumentative, imaginary or
frivolous, summary judgment is proper.”
ITT,
854 S.W.2d at 882. Thus, “disputes over facts that might affect the outcome of a suit under governing law preclude the entry of summary judgment. The determination of such contradictory facts is for the fact finder at a complete trial.”
Payne,
132 S.W.3d at 317 (internal citations omitted).
In this case, the general sequence of events recounted
supra
is itself suggestive that there was no actual gift. In addition, however, there are several other notable circumstances. The first is the remarkable rapidity with which the August 28, 1998 quitclaim deed conveying the Cemetery to the Fuemmelers was filed for record. The deed was recorded with the Saline County Recorder of Deeds at 11:54 a.m. that day, which was
at most
only a few minutes or hours after it had been signed by Whitlock. Under similar circumstances, our Supreme Court has held that such unusual haste in recordation, “standing unexplained upon the record, as it does, gives rise to the inference that defendant had little confidence in the regularity and good faith of the transaction.”
Vining v. Ramage,
319 Mo. 65, 3 S.W.2d 712, 720 (1928). Similarly, in
Gruetzmacher v. Hainey,
373 S.W.2d 45, 53 (Mo.1963), the Court stated that an “unseemly haste to place the deed on record may well signify doubts about the efficacy of the transaction.”
The second circumstance is that the August 28, 1998 quitclaim deed nowhere states that the conveyance was intended to be an
inter vivos
gift. To the contrary, it recites that, in exchange for the Cemetery, Whitlock expressly acknowledged her receipt of “the sum of TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION” from the Fuemmel-ers. In a case involving similar facts and almost identical deed language, the Missouri Supreme Court noted that if the deed “was intended as a donation, it fails to develop that fact” inasmuch as it recited “one dollar and other consideration in hand paid and receipt acknowledged, but fails to mention as such love and affection, or to suggest that it was gift.”
Wilkerson v. Warn,
322 Mo. 842, 16 S.W.2d 72, 75 (1929).
The Court went on to say that the language of the deed actually “tended to disprove the theory of gift” advanced by the defendant,
id.,
further observing: “[I]n writing the deed, defendant failed to insert therein the understandings. It may be inferred then, if such was the understanding, that plaintiff would have noticed the absence thereof in the deed.
The fact that the deed did not recite in substance the complete understanding of the parties tends to disprove the intention to make a donation.” Id.
at 76 (emphasis added).
While respondents were free to (and did) introduce parol evidence into the summary judgment record to contradict the language of the deed as to consideration in an attempt to support their theory of gift, the fact remains that the record contains
competent evidence that two plausible, but contradictory accounts of essential facts exist. Accordingly, summary judgment on the issue of Whitlock’s donative intent would be improper.
Finally, there is also the Minkler affidavit, which as noted
supra,
states that he “had a conversation with Julie Whitlock in which she told [him] that she had an agreement with Scott Fuemmeler that Fu-emmeler would pay her for the Sunset Memorial Gardens Cemetery after Dwane Wills’ lawsuit was resolved.” While the affidavit is not a model of clarity (for example, it does not say
when
Minkler had this conversation with Whitlock), viewing the summary judgment record and the surrounding circumstances in the light most favorable to appellants, the affidavit makes it quite clear that genuine issues of material fact remain to be resolved— namely, whether Whitlock had the required donative intent to make and did make a valid
inter vivos
gift of the Cemetery to the Fuemmelers, or whether it was actually a disguised indirect sale, which was to be consummated after this litigation had concluded in respondents’ favor.
For all these reasons, we reject respondents’ argument that they were entitled to summary judgment on the alternative ground that, as a matter of law on this summary judgment record, Whitlock gifted the Cemetery to the Fuemmelers.
III.
The Fuemmelers and AMC further argue that they were entitled to summary judgment on all counts applicable to them (ie., Counts I, II, III, VI, and VII of the second amended petition) because appellants failed to exercise their Contractual right of first refusal within forty-five business days of receiving notice of the proposed sale on March 31, 1998. As correctly noted by appellants in their brief, the essence of the Fuemmelers’ argument is that once Whitlock accepted
any offer
to sell the Cemetery,
including one from a business competitor of appellants,
appellants were required to timely exercise their Contractual right of first refusal or Whitlock could legally sell the real estate to such a competitor, even within the three-year period specified in the Contract.
This argument is nonsensical, and if accepted, would be contrary to the plain intent, meaning, and effect of the Contract. As the Fuemmelers and AMC were business competitors of appellants throughout the relevant time frame (ie., the three-year period from December 9, 1997 through December 9, 2000), Whitlock was not allowed to directly or indirectly sell the Cemetery to them during that period. Thus, even though appellants received the Contractually-required notice of proposed sale from Whitlock, the Contractual right of first refusal was never necessarily in play at any relevant time as regards the Fuemmelers or AMC, as the Contract clearly and unambiguously gave appellants the option either to sue to enforce the
clause prohibiting the direct or indirect sale of the Cemetery to a competitor, or to exercise them entirely separate right of first refusal if they chose not to enforce that clause. In other words, during the first three years, Whitlock could sell only to a non-competitor of appellants, subject to appellants’ right of first refusal. After that three-year period, Whitlock could sell to anyone, but again subject to appellants’ right of first refusal. Accordingly, the notice of proposed sale to the Fuemmelers (who were, as we have already held, business competitors of appellants within the meaning of the Contract) was not effective to start the running of the forty-five business day period during which appellants could validly exercise their Contractual right of first refusal.
Therefore, we reject the Fuemmelers’ and AMC’s second alternative argument in support of summary judgment.
Finally, the Fuemmelers and AMC present a third alternative argument in support of summary judgment in their favor on Counts I and II of appellants’ second amended petition. They argue that inasmuch as appellants’ present lawsuit was filed on April 25, 2000 (some 20 months after Whitlock purportedly “gifted” the Cemetery to the Fuemmelers on August 28, 1998), the Contractual restriction on direct or indirect sale of the Cemetery to a direct or indirect competitor of appellants can no longer be enforced as to them since (1) that clause became “moot” after December 9, 2000, thereby leaving appellants no recourse against them but only against Whitlock; and (2) by “sitting on their rights,” appellants have thereby not only “waived” their right to specific performance of the terms of their Contract with Whitlock, but also their right to seek any form of injunctive relief against the Fuemmelers and AMC. Once again, we disagree.
As we have already held, whether Whit-lock had the required donative intent to make and did make a valid
inter vivos
gift of the Cemetery to the Fuemmelers on August 28, 1998 is a genuine and disputed issue of material fact remaining to be resolved at trial. As appellants filed the present action on April 25, 2000, which was more than seven months
before
the three-year period during which the Contract prohibited Whitlock from directly or indirectly selling the Cemetery to a direct or indirect competitor of appellants had
run,
that clause of the contract (and appellants’ rights to enforce it, either by specific performance or by injunction) is not moot, as the present action tolled the running of the three-year period, thereby preserving appellants’ rights to seek relief by those mechanisms.
See Furniture Mfg. Corp. v. Joseph,
900 S.W.2d 642, 648-49 (Mo.App. W.D.1995).
Appellants’ first point is granted.
IV.
In their second point, appellants argue that the circuit court erred in entering
summary judgment against them on Count IX of their second amended petition because they pled all the required elements of a
prima facie
tort and no other recognized tort theories were available to recover under the theory of recovery pled in that count. We agree.
At the outset, Whitlock argues that this point should be summarily denied on jurisdictional grounds, contending that appellants’ notice of appeal does not meet the requirements of Rule 81.08(a), since it did not expressly refer to the circuit court’s June 12, 2003 judgment entering summary judgment against appellants on Count IX. We disagree. “[A] notice of appeal which can reasonably be construed as an attempt in good faith to appeal from a final judgment or appealable order shall be deemed sufficient.”
Weller v. Hayes Truck Lines,
355 Mo. 695, 197 S.W.2d 657, 660-61 (1946). “Technical adherence to the formal averments of a notice of appeal is not jurisdictional, and the averments are to be liberally construed to permit appellate review so long as the opposing party is not misled to his or her irreparable harm.”
L.J.B. v. L.W.B.,
908 S.W.2d 349, 351 (Mo. banc 1995). “ ‘Consequently, it is the duty of an appellate court freely to exercise its jurisdiction to provide a review on the merits in every instance that it may properly do so.’ ”
Lake Winnebago v. Sharp,
652 S.W.2d 118, 122 (Mo. banc 1983) (quoting
Weller,
197 S.W.2d at 659).
Whitlock’s argument completely ignores the critical fact that
both
the May 7, 2003 judgment entering summary judgment against appellants on Counts I through VII of their second amended petition
and
the June 12, 2003 judgment entering summary judgment against appellants on Count IX of their second amended petition were attached to the June 13, 2003 Notice of Appeal filed by Wills and WPS and served on counsel for all respondents. Moreover, in the section of the Notice titled “JUDGMENT OR ORDER APPEALED FROM: (ATTACH A COPY OF JUDGMENT),” appellants entered “Attached.” This was more than sufficient compliance with Rule 81.08(a)
(cf., e.g., Robin Farms, Inc. v. Bartholome,
989 S.W.2d 238, 245 (Mo.App. W.D.1999);
Allison v. Sverdrup & Parcel &
Assocs.,
Inc.,
738 S.W.2d 440, 443-44 (Mo.App. E.D. 1987)), and Whitlock’s argument to the contrary is unsupported by any on-point case authority. Furthermore, Whitlock does not even allege that she was misled to her irreparable harm. Accordingly, her jurisdictional argument is rejected and we will consider appellants’ second point on its merits.
The trial court ruled that as pled by appellants, Count IX was “an impermissible attempt by plaintiffs to inappropriately prosecute a duplicative tort theory or claim ... [which] would be applicable under the attendant facts and circumstances.” This ruling was erroneous, as the theory of recovery pled in Count IX depended on a different set of operative facts and conduct and was not duplicative of any other, more traditional tort theories of recovery.
Whitlock is correct that where the same essential facts and conduct underlie both theories of recovery, the doctrine of
prima facie
tort cannot be invoked, for it is not a duplicative remedy for claims that can be prosecuted under other traditionally recognized tort theories and “cannot be utilized when a recognized tort is otherwise available.”
Woolsey v. Bank of Versailles,
951 S.W.2d 662, 668 (Mo.App. W.D.1997). However, the same facts and conduct do not underlie both theories of recovery pled by appellants. The factual basis for Counts I through VII was that the August 28, 1998 conveyance of the Cemetery from Whitlock to the Fuemmelers was a direct
or indirect “sale” to a direct or indirect business competitor of appellants, and was, therefore, invalid under the Contract. In Count IX, appellants did not rely on the Contract at all, but specifically alleged,
in the alternative
to the allegations in Counts I — VII, that the conveyance was a legally valid gift
inter vivos
designed to evade or circumvent the otherwise applicable provisions of the Contract.
They further expressly pleaded that the gift was actionable in
prima facie
tort; that is: (1) that it was an intentional lawful act by defendant Whitlock; (2) that defendant Whitlock intended to injure the plaintiffs thereby; (3) that plaintiffs were damaged thereby; and (4) there was an absence of, or insufficient justification for, defendant Whitlock’s act of gifting the Cemetery to the Fuemmel-ers.
In Count IX, appellants also pled similar
prima facie
tort claims arising from Whitlock’s acts in purchasing and foreclosing
on
the promissory note and deed of trust, and the subsequent forced sale of the Nevada, Missouri, funeral home owned by appellants.
If the August 28, 1998 conveyance of the Cemetery from Whitlock to the
Fuemmelers was, in fact, a gift rather than a sale, Whitlock has not identified any existing nominate tort theory with which appellants’
prima facie
tort claim as to that gift would have been duplicative. Nor has she identified any such theory with regard to the promissory note/foreclosure claims in Count IX.
See generally Killion v. Bank Midwest, NA,
987 S.W.2d 801, 812-13 (Mo.App. W.D.1998) (recognizing the applicability of the
prima facie
tort doctrine in cases involving foreclosure).
Accordingly, appellants were not precluded, at least at this stage of the case, from seeking recovery against her in
prima fa-cie
tort on the claims pertaining to the Cemetery and the promissory note. Point granted.
Conclusion
For the foregoing reasons, we hold that neither Whitlock, the Fuemmelers, nor AMC were entitled to the entry of judgment as a matter of law on Counts I through VII and IX of the second amended petition filed by Wills and WPS. The circuit court’s grant of summary judgment in their favor is, therefore, reversed and
the cause is remanded for further proceedings not inconsistent with this opinion.
All concur.