Court of Appeals of Missouri, Western District, First Division
from the Circuit Court of Callaway County, Missouri The
Honorable Gary M. Oxenhandler, Judge
James Edward Welsh, P.J., Anthony Rex Gabbert, and Edard R.
Ardini, Jr., JJ.
Edward Welsh, Presiding Judge.
Ready appeals the circuit court's judgment ordering
specific performance of an oral contract for the purchase of
land and ordering him to pay attorneys' fees on behalf of
Daniel Barkho and Beth Ready. Douglas contends that the circuit
court erred (1) in finding that the parties had an oral
contract for the sale of property that was not barred by the
statute of frauds because the evidence was insufficient to
prove "by clear and convincing evidence beyond a
reasonable doubt" that the parties entered an oral
contract for the purchase of the land and (2) in ordering
specific performance of the alleged oral contract rather than
restitution. In regard to attorneys' fees, Douglas
asserts that the circuit court erred in awarding Daniel and
Beth attorneys' fees under the "special
circumstances" or "very unusual circumstances"
exception to the American Rule or abused its discretion in
ordering him to pay Daniel's and Beth's
attorneys' fees as a sanction under the court's
inherent powers. We affirm.
1981, the father of Daniel and Beth purchased a farm in
Callaway County, Missouri. Their father, desiring to divide
up the farm property between Daniel, Beth, and his four other
children,  drew up a plan outlining the parcels of
land that each child would receive. When their father died in
2009, their mother, Alene Barkho, became the owner of the
property. Because of financial difficulties in making the
payments on the property, Alene, in 2011, approached all of
her children about their interest in purchasing the parcels
of land that their father desired each child to have. At that
time, Daniel could not obtain financing to purchase his
designated parcel, Tract V.
29, 2011, Beth and her husband, Douglas, purchased property
from Alene that included Tract V. Pursuant to the terms of
the contract, Beth and Douglas agreed that if they desired to
sell the property within 5 years of the date they purchased
it, they would notify all of Beth's siblings. The
Any of the said siblings of the Buyer who offer to purchase
the property shall be entitled to purchase said property for
a price equal to the cost paid by Buyer under this contract,
together with the actual costs of any improvements placed
upon the property by the Buyer from the date of the
acquisition of title by the Buyer.
contract also provided: "With regard to Tract V, if
Buyer offers same for sale, then Seller's child, Daniel
M. Barkho shall have the right to refuse to purchase the
property over any and all other siblings. Should he reject
the right to purchase, then that right passes to the
remaining siblings, equally." According to Daniel, he
informed his siblings by word of mouth that it was his intent
to purchase Tract V.
in 2011, according to Beth, Douglas encouraged Daniel to go
to bank in Callaway County to obtain a loan. Beth and Daniel
went to the bank, but the bank denied the loan. In 2012,
Daniel sought advice from Douglas about a lending company based
in Oklahoma. According to Daniel, he and Douglas had a
discussion about the land and about it being transferred to
Daniel. Daniel said that Douglas did not give him a figure in
writing about the price of the land, but they discussed it
verbally. In July 2012, Douglas computed figures for Tract V
with the improvements on the land so that Daniel could
inquire about a loan for the land.
January 2013, Daniel spoke to his boss about possibly
borrowing money from him to purchase the land. When
Daniel's boss agreed to loan him $45, 000, Daniel
contacted Douglas and Beth and inquired about the purchase
price of Tract V. Daniel said it was his understanding that
he would pay $400 per acre plus the cost of any improvements
on the land. On January 22, 2013, Douglas did a handwritten
calculation of the purchase price of Tract V with
improvements on the land at $45, 728.89 "as of
1/22/13." Beth emailed this figure to Daniel on January
27, 2013. Beth also emailed Daniel handwritten calculations
from Douglas showing the figures "as of 7/30."
Daniel said that he understood that the $45, 728.89 figure
was the purchase price for the property, and Beth agreed that
she and Douglas were willing to sell the land for that price.
January and February 2013, Daniel and Douglas talked on the
telephone about Daniel sending $45, 000 and paying the
remaining balance of $728.89 at a later time. According to
Daniel, Douglas was fine with that arrangement. Daniel,
however, waited until he received his $1, 000 tax return so
that he could add that to the $45, 000 he received from his
boss as a loan. On March 11, 2013, Daniel's bank issued a
cashier's check payable to "Doug or Beth Ready"
in the amount of $46, 000, and the check was signed by
Daniel's wife. When the check was mailed to Douglas and
Beth, Douglas retrieved the check from their mailbox and put
it "on the counter." A couple of days later, Beth
asked Douglas where to deposit the check, and Douglas told
her to deposit it in Maries County Bank. Thereafter, Beth
mailed the cashier's check to Maries County Bank with a
note to "Please deposit this on our loan account."
the bank received the check, it initially applied the check
towards the principal on Douglas's and Beth's land
loan. On April 10, 2013, Douglas contacted Maries County Bank
and asked the bank to reallocate the $46, 000 on their land
loan. In particular, Douglas instructed the bank to apply
$11, 201.79 for the regular payment and to apply the
remainder ($34, 798.21) towards the principal. Douglas never
asked the bank to return the $46, 000 to him. On April 12,
2013, Maries County Bank, acting on directives from Douglas,
reversed the $46, 000 principal payment and re-applied the
payment as $11, 201.79 for a regular payment (consisting of
$3, 099.44 as principal and $8, 192.35 as interest) and $34,
798.21 applied to principal.
April 22, 2013, Douglas texted Daniel and told him that he
would call the title company "tomorrow. " Douglas
also sent an email to Beth on that same day saying that he
was "going to set the transfer of the land to
Danny" on May 1, 2013. On April 23, 2013, Douglas
contacted Boyd & Boyd, Inc., a land title company,
regarding the sale of Tract V. Douglas requested that Boyd
& Boyd issue a title insurance owner's policy in the
amount of $31, 692, with a cash lender and counter closing.
According to Julia Uhls, the owner of Boyd & Boyd, the
date of May 1, 2013, "was chosen" as the closing
date "because they wanted to do it as soon as possible
and that was about the soonest Boyd & Boyd could
deliver." Douglas also requested that Boyd and Boyd
prepare a warranty deed to transfer the property. On April
28, 2013, Douglas texted Daniel and said, "They are
supposed to call u on how the names supposed to be on
title." Boyd & Boyd did contact Daniel about the
name to put on the warranty deed, and Daniel instructed them
to put it in his name only. On April 30, 2013, Douglas texted
Daniel and said, "They only have your name on warranty
deed. Is that the way u want it."
instructed Boyd & Boyd to contact Beth when the warranty
deed and title insurance policy were ready to be picked up.
Boyd & Boyd prepared a title insurance owner's policy
in the amount of $31, 692 for Tract V with the insured listed as
Daniel and stating that title in the land was vested in
Douglas and Beth. Boyd & Boyd also prepared a warranty
deed and a billing statement for $228. The billing statement
listed the customer as "Douglas Ready-Daniel L.
Barkho." Beth picked up ...