King v. Factory Direct, Inc.

CLARK, Presiding Judge,

dissenting.

I respectfully dissent from the majority opinion and would reverse the judgment of the trial court for the reasons which follow.

Respondents’ pleaded claim for reformation of deed was based on the allegation that the deed description was in error through mistake of the scrivener, acting at the time as agent for buyer and seller, resulting in a conveyance of land not intended by either party. The trial court did not find the scrivener to have been the *637agent of the buyer and did not find the mistake in property description to have been mutually shared. The decree ordering reformation is therefore an erroneous application of the law and should be reversed.

To perceive the nature of the dispute and the significance of the proof, the unusual configuration of the tract in question must be described. The property is abutted front and rear by two streets, Kearney Road to the north and U. S. Highway 69 to the south. The latter road converges on Kear-ney as it proceeds in a northeasterly direction with the consequence that side lot lines of this tract must deviate from straight lines at midpoints if equal frontage is to result on each street.

Prior to the conveyance at issue here, the boundaries of the tract had been described by metes and bounds and were more particularly set out in a survey prepared July 15, 1964. That survey is identified as the “Evans Survey.” The tract is there depicted generally in the following dimensions:

In June 1978, appellant entered into a lease of “the uppermost floor” of a store building located on the subject property together with parking facilities.1 The approximate location of the building is indicated by the dotted lines on the diagram above. Access to the leased area is from Highway 69 with which the “uppermost floor” is at grade level. The lower floor is at grade with Kearney Road on the north and was separately leased to another tenant under terms not described. A retaining wall connects to the northeast corner of the building and beyond the wall a concrete ramp provides a route for vehicles along the easterly portion of the property allowing descent from the Highway 69 level to the Kearney Road level. Some portion, if not *638all, of the concrete ramp is located on the property described in the Evans Survey and was included in the deed to appellants.2

Appellant’s lease from respondents’ predecessor in title granted appellant the option to purchase “the store building * * * as well as all of its appurtenances and parking facilities.” No further description was supplied. It is, however, undisputed that the option covered the entire building, both the upper area appellant had rented and the lower level, as well as the parking and frontages on Highway 69 and Kearney Road. It is also undisputed that the later purchase was accomplished by the exercise of that purchase option. The Evans Survey showing 100 feet of frontage on both streets was the only survey in existence when the lease was made and its content was known to appellant and respondents.

According to the testimony of respondent Lawrence W. King, when appellant gave notice of its intent to exercise the purchase option contained in the lease, King decided upon “squaring up” other property he owned adjoining the subject property on the east. This he proposed to accomplish by altering the east line of the subject tract to a straight line generally running at a right angle from Highway 69, To obtain a description for the reduced tract, King ordered a new survey referred to as the “McCIarnon Survey.” The tract thus defined is depicted as follows:

The result of the “squaring up” was to reduce substantially the parking area and street exposure of the lower level storeroom and to place the concrete ramp well beyond *639the east boundary of the property purchased by appellant. Of primary importance to appellant, as its witnesses testified, was that separation of its land from the ramp would offer the prospect of closing the ramp thereby preventing passage of traffic from the Highway 69 level to the Kearney Road level. Appellant and its customers would then have no exterior route for travel from one level of the store building to the other except by going around the block.

As noted above, the Evans Survey and the lease containing the purchase option constituted the documentation in existence when appellant notified respondents of intent to buy the property. The agreement was thereafter formalized in a real estate sale contract which did not contain, in the body of the contract, a legal description of the tract sold. That description was by attachment and the evidence was in dispute as to whether the new description derived from the recent McClarnon Survey was in fact attached. It was, however, unquestioned that the decision by respondent King to enlarge his own property adjoining on the east by “squaring up” came after appellant gave notice of its intention to exercise the purchase option. Because respondent King supplied the Evans Survey used by the scrivener to draw the deed and the alleged mistake was attributable to no act or omission of appellant who had no contact with the scrivener, the understanding by appellant as to the content of the tract being purchased was critical to respondents’ claim of mutual mistake.

The principals of appellant corporation, Vera Griggs and Carl Griggs, testified as to their understanding that the tract optioned in the 1978 lease and the tract purchased was that described in the Evans Survey. They were also of the opinion that the ramp was included therein and in the deed. Again, the evidence was plain that one characteristic of the description in the Evans Survey was that it included at least part of the ramp while the McClarnon survey did not.3 In this context, the following finding by the trial court assumes particular significance.

“29. That Defendant [appellant here] believed the down ramp was included in the land set forth in the aforesaid Warranty Deed.”

Patently, if appellant believed the ramp was within the boundary of the tract purchased, the description to be used was that of the Evans Survey and there was no mutual mistake in the use of that description in place of the description supplied by the McClarnon Survey. This finding of fact precludes, as a matter of law, the granting of reformation as the judgment awarded.

The majority recognizes this fatal error in the judgment by the trial court, but seeks to remedy the defect, ostensibly on the authority of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), by the simple expedient of making a contrary finding on this fact. This is accomplished by a de novo review of the evidence and a finding that the weight of that evidence persuades this court to conclude appellant did not believe the down ramp “was in the warranty deed.”

One of the fundamental precepts of Murphy v. Carron, supra is that de novo review of the evidence in a court tried case is no longer permitted by the appellate court. The weight of the evidence is not a matter of concern to the appellate court unless the trial court has reached the wrong result. If the trial court in the exercise of caution entertains a firm belief that the judgment is wrong, it may reverse that judgment by concluding that the findings of fact are against the weight of the evidence. Heinze v. Hobson, 622 S.W.2d 17 (Mo.App.1981). There is, however, no warrant under Murphy v. Carrón, supra entitling the appellate court to reweigh the evidence and alter the findings of fact for the purpose of affirming the judgment nisi. Such a practice *640would reinstate appellate de novo review and would pose, as here, an insoluble dilemma for the appellant who accepts the findings of fact but complains that the trial court has erroneously applied the law.

An action for reformation based on mutual mistake requires the petitioner to allege and prove a pre-existing agreement between the parties, a mistake and the mutuality of the mistake. Tripp v. Harryman, 613 S.W.2d 943 (Mo.App.1981). To show mutual mistake in a written instrument, the preceding agreement must ex necessitate be shown. Edwards v. Zahner, 395 S.W.2d 185, 190 (Mo.1965). The precise words of agreement between the parties need not be shown but the evidence must disclose the object upon which the parties were agreed and the fact that the instrument, by a mistake common to both parties, did not satisfy the objective. Williams v. United Insurance Company of America, 618 S.W.2d 229, 231 (Mo.App.1981). The power of a court to reform an instrument is an extraordinary one and must be guarded with zealous care and exercised with great caution. Stein v. Stein Egg & Poultry Co., 606 S.W.2d 203, 205 (Mo.App.1980). Mutuality of mistake as a ground for reformation of an instrument must be shown by clear and convincing evidence. Rainey v. Foland, 555 S.W.2d 88, 91 (Mo.App.1977).

Appellant charges here that the proof offered by respondents did not show mutuality of a mistake embodied in the deed of conveyance and that the judgment decreeing reformation was therefore an erroneous application of the law. While the evidence recounted above falls far short, in its own right, of clear and convincing proof that a mutual mistake was shared by appellant and respondent and that the deed conveyed land intended by neither as the subject of the sale, the question is more readily resolved. The trial court by its finding 29 expressly concluded that appellant was not mistaken and indeed received conveyance of the land contemplated by it for purchase when the option was exercised. That finding is entitled on appeal to deference if it is supported by substantial evidence.

The judgment reached by the trial court is the result of an incorrect application of the law to the facts. It is not an appropriate function of appellate review to revise the findings of fact for the purpose of conforming them to the result accomplished by the judgment. Respondents should have been denied reformation of the deed because they failed to prove by clear and convincing evidence that the alleged mistake in land description was of mutual origin in buyer and seller. The description used was furnished to the scrivener by respondents, there was no demonstrated contact at all between appellant and the scrivener and substantial evidence supports the finding by the trial court that appellant received conveyance of the land they understood to be the subject of the purchase.

I would reverse the judgment of the trial court and enter judgment for appellant.

. The lessor is identified in the document as King’s Maid Rite, Inc. for which Clifford E. King signed as president and Margaret M. King signed as secretary. The relationship between these parties and respondents is not explained but is immaterial because respondents acknowledge the obligations of the lease devolving upon them as successors in title.

. Inexplicably, the trial court expressly found that the “down ramp” was not included in the deed respondents sought to have reformed. All the witnesses agreed at least a portion of the ramp was conveyed by the deed and the effect of the deed upon access to the ramp was an important point of contention. The majority opinion accepts as correct the finding by the trial court that the ramp was not included in the deed description although that finding is supported by no evidence and is contrary to the weight of the evidence.

. Neither survey depicted the ramp and its location cannot, therefore, be determined accurately from the exhibits. The inclusion of the ramp in the description taken from the Evans Survey is derived from the testimony of witnesses who made their marks on the exhibits.