Paul F. Sherman, Esquire
Leave freely given to conform pleadings to the evidence, where no surprise resulted and no prejudice was shown, in accord with Rule 55.33(b). Davis Estates, L.L.C. v. Ronald Junge and JoAnn Junge, No. 31896 (Mo. App. S.D., February 14, 2013), Lynch, P.J.
Davis Estates purchased land in Springfield on December 31, 2003, sharing a northern boundary with residential lot owned by the Junges, a boundary in dispute. Davis Estates bought without a survey, then filed an action in 2004 to eject the Junges, who counterclaimed title acquired by adverse possession. Both parties then surveyed the line. The Junges’ predecessor, Rice, testified he had used the disputed area since 1985, which use continued when the Junges purchased in 1996. Junges’ surveyor described the area (Exhibit 4) to include the Junges’ driveway, irrigation system and plantings. Davis Estates objected to Exhibit 4 as beyond the scope of Junges’ counterclaim description. The trial court sustained Junges’ motion for pleadings to conform with evidence.
Exhibit 4 was within that which had been pled, but even if it had not, Rule 55.33(b) allows such an amendment to be freely given and it came as no surprise (a copy of the survey had been provided Davis Estates’ counsel six months before trial). Davis Estates failed to show any prejudice by its admission. Factual support was shown that supported actual and exclusive element in support of the Judgment.
Judicial approval of a class action settlement upheld as within the sound discretion of the trial court. Doyle, et al. v. Fluor Corp., et al. No. 98462 (Mo. App. E.D., January 15, 2013), Ahrens, P.J.
Appellants (Objectors) are 28 out of a class of over 700 plaintiffs who claimed nuisance and sought damages to real property due to toxins emitted from the Doe Run smelter in a defined geographic area of Herculaneum. Settlement was reached in February 2012, and a fund established to be distributed based on an allocation plan. On the eve of judicial approval Appellants moved to intervene and object to notice and the plan. The plan was approved over Appellants’ objection and this appeal followed.
Appellants admit they received notice in 2010. Objections first raised at settlement approval were untimely and waived. Rigorously litigated, Appellants also admit virtually all Herculaneum properties have been remediated. Fair and reasonable representation and factors support approval of the settlement, no abuse of discretion.
Where contract is ambiguous, then the intent of the parties must be determined by looking outside the four corners of the document. ATC Company, Inc. v. Myatt, et al., No. 97871 (Mo. App. E.D., January 8, 2013), Dowd, Jr., P.J.
Pinewoods (“Purchaser”) and Myatt (“Seller”) entered into a contract to sell four tracts of land on July 18, 2003. ATC was the escrow holder who interpled the $40,000 earnest money and was not a party to the appeal. Two tracts were to close March 15, 2004 (first closing), and the remaining two tracts were to close five years later (second closing), the $40,000 earnest money to be retained by ATC in escrow until the second closing. Parties then extended the first closing to April 15, 2004, for an additional $15,000 as a “non-refundable earnest deposit.” Tracts one and two did close on April 15, 2004 (first closing). In 2008 Purchaser declined acceptance of the second closing based on a feasibility contingency. Both Purchaser and Seller requested ATC return the escrowed funds and this interpleader was filed. The trial court found for Seller that the Extension Agreement removed all contingencies and this appeal followed.
The sole point on appeal was whether the trial court erred in ruling the Extension Agreement modified the sale contract to waive all contingencies for the second closing. Yes, the contract was ambiguous (reasonably susceptible of more than one construction giving words their plain and ordinary meaning), but the analysis does not stop there. The next step is to look outside the four corners for the meaning intended by the parties, which was not done.
Held: Reversed and remanded for further proceedings.