GARY W. LYNCH, Presiding Judge.
Lezah Stenger Homes, Inc. ("Stenger Homes") appeals the judgment of the trial court ordering it to convey Lot 23, Spring Creek Phase VI ("the property"), to Briar Road, L.L.C. ("Briar Road"). Finding no merit in any of Stenger Home's five points on appeal, we affirm the judgment.
Stenger Homes and George W. Hull and Minnie J. Hull entered into a written Lease Agreement with Option to Purchase ("Lease") of the property on October 31, 2001. Paragraph fifteen of the Lease set forth an option to purchase in favor of the Hulls that specified a sale price of $198,500.00, if exercised, with the Hulls receiving full credit for a $56,000.00 non-refundable option payment, leaving a balance of $142,500.00 due to Stenger Homes at closing. Paragraph five of the Lease provided that the Hulls would not "assign or sublet the [property] without the written consent of [Stenger Homes], which consent shall not be unreasonably withheld." By its terms, the Lease was to terminate on October 31, 2003, but the parties agreed to extend all its terms and conditions, including the option to purchase, on a month by month basis. Stenger
In November 2005, the Hulls assigned their option to purchase the property to Briar Road, which is a limited liability company. The Hulls were its original members. On March 24, 2006, the Hulls' attorney notified Stenger Homes in writing of their intent to exercise the option to purchase the property in accordance with the terms of the Lease as extended. The same letter informed Stenger Homes that the property was under contract for sale to a third party, with a tentative closing set for April 14, 2006.
Briar Road filed its initial petition in the Circuit Court of Greene County on April 19, 2006, five days after the closing on the property failed to occur. In an earlier appeal, this Court reversed the trial court's grant of summary judgment in favor of Stenger Homes and remanded the case to the trial court for further proceedings. Briar Road, L.L.C. v. Lezah Stenger Homes, Inc., 256 S.W.3d 131 (Mo.App. 2008) ("Briar Road I").
At the trial following remand, the Hulls' real estate agent, C.J. King, testified that before November 4, 2005, and before listing the property for sale, she inquired of Ron Stenger—acting on behalf of Stenger Homes—as to whether Stenger Homes would transfer the property to a limited liability company formed by the Hulls. King testified that Stenger answered affirmatively. King further testified that she had many conversations with representatives of Stenger Homes between the March 24, 2006, notice of the Hulls' exercise of the option and the scheduled closing on April 14, 2006, and afterward, all in an attempt to figure out a plan to close on the property.
The trial court entered its judgment expressly finding, inter alia, that "[o]n November
As this was a court-tried case, we review pursuant to the well-known principles enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. "[W]e accept as true the evidence and reasonable inferences therefrom in the light most favorable to the prevailing party and disregard contradictory evidence." Deck v. Deck, 64 S.W.3d 870, 873 (Mo.App. 2002). We recognize the superior position of the trial court in assessing factors such as credibility, sincerity, and character of the witnesses. Id.
Stenger Homes' first point challenges the trial court's factual finding that Briar Road was assigned the rights to the option to purchase the property pursuant to an assignment of rights agreement executed by the Hulls. Stenger Homes claims that there was no substantial evidence to support the trial court's conclusion and it was against the weight of the evidence because the purported assignment of rights document, Plaintiff's Exhibit 7, was never admitted into evidence. Specifically, Stenger Homes asserts that there was no substantial evidence supporting the trial court's finding that Briar Road was a proper assignee of the option to purchase without the admittance of that document into evidence. Before discussing this point, however, we must address a preliminary matter—what is Plaintiff's Exhibit 7?
Unfortunately, Stenger Homes chose not to deposit Plaintiff's Exhibit 7 with this Court. See Rule 81.16(a); Southern District Special Rule 4. While Stenger Homes in its brief refers to Plaintiff's Exhibit 7 as the "purported Assignment of Rights," in the absence of this exhibit, we are unable to confirm from the record before us that this exhibit is the original assignment of rights document relied upon by Briar Road. Likewise, in its absence, we cannot definitively determine whether Plaintiff's Exhibit 7 is one and the same document referred to as the "Assignment of Rights" dated November 4, 2005, in our opinion in Briar Road I, 256 S.W.3d at 133.
As the appellant here, Stenger Homes had the obligation and duty to provide a full and complete record on appeal. Rule 81.12(c) and (e); Smith v. Associated Natural Gas Co., 7 S.W.3d 530, 535 (Mo.App.1999). When an exhibit is not deposited with this Court, "the intendment and content of the exhibit [will be]
The record reflects that before Briar Road initially offered Plaintiff's Exhibit 7 into evidence, Plaintiff's Exhibit 33 had been admitted into evidence without objection. Plaintiff's Exhibit 33 is Stenger Homes' amended responses to Briar Road's request for admissions of facts and genuineness of documents. Therein, Stenger Homes admitted, among other matters, that "on November 4, 2005, the Hulls assigned their option to purchase the subject real property to Briar Road, LLC"; that Exhibit C to the petition was "a true and accurate photocopy of an Assignment of Rights executed by George W. Hull and Minnie J. Hull on November 4, 2005"; and that Stenger Homes was aware of "no basis in law or in fact to dispute that Exhibit C to the Petition filed herein is a true and accurate photocopy of an Assignment of Rights executed by George W. and Minnie J. Hull on November 4, 2005." Exhibit C is a copy of a document entitled "Assignment of Rights," dated November 4, 2005. An identical copy of this document is attached as Exhibit C to Briar Road's first amended petition. Additionally, the wording of the document attached as Exhibit C to both petitions is identical to the wording of the "Assignment of Rights" dated November 4, 2005, set forth verbatim in Briar Road I, 256 S.W.3d at 133.
In light of Plaintiff's Exhibit 33, as well as both parties' apparent concessions that Plaintiff's Exhibit 7 is the original assignment of rights document, this opinion will presume that an examination of Plaintiff's Exhibit 7 would support that it is the original "Assignment of Rights" document dated November 4, 2005, a copy of which was attached as Exhibit C to Briar Road's initial and first amended petitions and thereafter referenced in Briar Road's requests for admissions of facts and genuineness of documents and Stenger Homes' responses to such requests, and the document set forth verbatim and referred to as "Assignment of Rights" dated November 4, 2005, in Briar Road I. With this preliminary matter resolved, we now turn to our discussion of Stenger Homes' point.
The premise of Stenger Homes' point— the assignment document was not admitted into evidence—is incorrect. When Plaintiff's Exhibit 7 was first offered into evidence by Briar Road, the trial court sustained Stenger Homes' lack-of-foundation objection and declined to admit the document.
In its judgment, the trial court expressly found that "[o]n November 4, 2005, the Hulls executed their Assignment of Rights in favor of [Briar Road]." Because the trial court in its judgment relied on facts supported only by Plaintiff's Exhibit 7 and specifically referenced the document marked as Plaintiff's Exhibit 7 by its title, "Assignment of Rights," the only logical conclusion is that the trial court reconsidered its previous interlocutory rulings and finally admitted Plaintiff's Exhibit 7 into evidence. Cf. In re Estate of Graham, 59 S.W.3d 15, 21 (Mo.App.2001) ("to hold now that the documents were not in evidence would be contrary to the actions of the court"). Stenger Homes' contrary premise is nothing more than an illogical attempt to pull up its point by its own bootstraps.
Stenger Homes' point relied on does not address or challenge in any manner the admissibility of Plaintiff's Exhibit 7 on appeal. That exhibit supports the trial court's finding that "[o]n November 4, 2005, the Hulls executed their Assignment of Rights in favor of [Briar Road][,]" such that this finding is supported by substantial evidence and is not against the weight of the evidence. Stenger Homes' first point is denied.
Stenger Homes' second point asserts that there was "no evidence that the parties to the assignment had any intent or agreement that the assignment of the option to purchase would not be effective until the Hulls provided notice of the exercising of their option." Thus, Stenger Homes argues that the trial court's finding that "[t]he Hulls and Briar Road intended and agreed that the assignment of the option to purchase the [property] would be effective upon and following the Hulls' notice of exercise of their option to [Stenger Homes]" is not supported by substantial evidence and is against the weight of the evidence. Because we find that the trial court's finding is a reasonable inference drawn from the circumstantial evidence before it, we disagree.
The "Assignment of Rights" dated November 4, 2005, does not specify when or under what conditions it was to become effective. The Hulls, not Briar Road, gave notice of their intent to exercise the option, more than four months following their execution of the assignment of rights document. King, the Hulls' real estate agent, testified that after the Hulls exercised their option to purchase, she provided a copy of the assignment of rights document to the closing company. King testified that Briar Road never asserted any rights as a tenant and did not want to be a tenant of the property. Likewise, Ron Stenger acknowledged that Briar Road never attempted to act as a tenant of the property, never paid rent, and never notified Stenger Homes that it had any claim to be a tenant. In summary, Briar Road took no actions as a tenant in the four months between the assignment of rights document and the exercise of the option by the Hulls, the exercise of the option was done in the name of the Hulls and not Briar Road, and the assignment of rights document was presented only after the option was exercised. The record thus contains evidence from which the trial court could reasonably draw the inference that the parties intended and agreed for the assignment to be effective only after the Hulls exercised their option to purchase, and there is no contradictory testimony or evidence in the record.
Substantial evidence supports the trial court's finding that the parties to the assignment intended and agreed that the assignment was to become effective only upon notice of the Hulls' intent to exercise the option to purchase, and with no contrary evidence in the record, this finding is not against the weight of the evidence. Stenger Homes' second point is denied.
In its third point, Stenger Homes contends that the trial court erroneously declared or applied the law when it held that the consent of Stenger Homes was not required for the assignment of rights from the Hulls to Briar Road. Stenger Homes asserts that "paragraph 5 of the Lease specifically provided that the Hulls shall not assign or sublet the Premises without the written consent of Stenger Homes and such requirement also applies to the assignment of the option of the right to purchase the [property]."
The first sentence of paragraph five of the Lease with Option to Purchase provides: "[The Hulls] shall not assign or sublet the Premises without the written consent of [Stenger Homes], which consent
The law on this issue was resolved in Briar Road I, wherein this Court stated that
256 S.W.3d at 139.
From the evidence adduced at trial, the trial court concluded that "upon the Hulls' exercise of the option to purchase on March 24, 2006, the lease agreement was terminated and the parties were left with a bilateral contract," and that there was no basis for requiring consent to the assignment of the purchase option separate from the consent to be given to the assignment of the lease.
An option vests the buyer with the power of acceptance, and once the buyer accepts the offer in the prescribed manner, the option is considered exercised so as to create a binding bilateral contract. In re Estate of Schulze, 105 S.W.3d 548, 550 (Mo.App.2003). Upon the exercise of the option by the Hulls on March 24, 2006, the lease agreement was terminated, and the parties were left with a bilateral real estate contract. Id. At that moment, the assignment from the Hulls to Briar Road became effective, unless the consent of Stenger Homes to such assignment was required by paragraph five of the Lease.
As observed in Briar Road I and quoted above, a provision in a lease requiring consent of the lessor to assign the premises is not necessarily applicable to a contract to purchase the premises created by the exercise of an option to purchase contained in that lease. Briar Road I, 256 S.W.3d at 139. The trial court received testimony on the purposes of the Lease's consent requirement and whether there was an independent basis for requiring consent to assign the real estate contract created by the exercise of the option to purchase contained in the Lease. That evidence consisted of the testimony of Stephanie Montgomery, an officer and director of Stenger Homes, and a judicial admission that Stenger Homes' trial counsel
During her testimony, Montgomery acknowledged that the Lease was a form document used by Stenger Homes and that the Hulls neither proposed additions nor changes to any of the language in the form. When asked about the purpose of the consent requirement in the Lease, Montgomery explained that it was put in the document so that Stenger Homes "would have control over who lived in the home that we owned." Montgomery proffered no basis or purpose for the application of the Lease's consent requirement to the assignment of the contract to purchase created by an exercise of the option to purchase.
Counsel for Briar Road sought to inquire of Ron Stenger during his testimony as to the existence of any other purposes for the consent requirement in the Lease when trial counsel for Stenger Homes interposed the following objection:
A judicial admission can be made by a party or an attorney. Francis v. Richardson, 978 S.W.2d 70, 73 (Mo.App. 1998). It is "a more or less formal act done in the course of judicial proceedings which waives or dispenses with the production of evidence and concedes for the purpose of the litigation that a certain proposition is true." Id. (quoting Hewitt v. Masters, 406 S.W.2d 60, 64 (Mo.1966)). Its effect is to remove "the proposition in question from the field of disputed issues in the particular case wherein it is made." Id. (quoting Mitchell Engineering Co. v. Summit Realty Co., Inc., 647 S.W.2d 130, 140 (Mo.App.1982)).
Stenger Homes' trial counsel attempted to limit the scope of Briar Road's inquiry of Ron Stenger as to the purpose of the consent requirement in the Lease by conceding that its purpose was only related to the landlord's desire "to know who's there and whether or not they can pay[,]" and had nothing to do with the option to purchase because "why would you care as long as someone gets the money?" Briar Road and the trial court had the right to rely upon these concessions and the consequent removal of this disputed issue from the case. Id.
The trial court concluded that the testimony did nothing to establish any independent underlying basis for a purchase-option consent requirement. Because this fact issue is a matter of witness credibility, we defer to the trial court's superior opportunity to assess credibility, sincerity, and character. See Deck, 64 S.W.3d at 873. Taking this view of the facts, as we must, and coupled with the judicial admission by Stenger Homes' trial counsel, we find no basis to conclude that the trial court either erroneously declared or applied the law. Stenger Homes' third point is denied.
In its fourth point, Stenger Homes challenges the trial court's holding that Stenger
In its fifth point, Stenger Homes claims that the trial court erroneously held that the Hulls had the right to exercise the option to purchase the property on March 24, 2006, because if the November 4, 2005, assignment was valid, as the trial court held, the Hulls were divested of their option on that date. Because the parties intended and agreed for the assignment to become effective upon the Hulls' notice of their intent to exercise the option, as we discussed under Stenger Homes' second point, this issue is also moot.
The trial court's judgment is affirmed.
RAHMEYER, J., and FRANCIS, J., concur.
Stenger Homes' appellate counsel in this appeal was not its trial counsel.
All rule references in this opinion are to Missouri Court Rules (2010).
