daniel-epps-plaintiff-respondent-v-nancy-jane-epps-and-william-wegis ( 2014 )

DANIEL EPPS, )
)
Plaintiff-Respondent, )
)
vs. ) No. SD32870
)
NANCY JANE EPPS, ) Filed: July 24, 2014
)
Defendant-Appellant, )
)
and WILLIAM WEGIS, JAMES A. )
BOWERS, HEIDI L. WEGIS, MARY E. )
BRUFFET, and LOUIS WEGIS, as trustees )
of the William and Pamela Wegis )
Revocable Trust Dated September 18, 2001, )
)
Defendants. )
APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY
Honorable David P. Evans, Special Judge
AFFIRMED
Nancy Jane Epps (“Appellant”) appeals from a judgment entered against her for a
real estate commission. The listing agreement and real estate contract was signed by her
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daughter, who had been given a Durable Power of Attorney by Appellant.1 Appellant
claims the issue before this Court is whether the Durable Power of Attorney given by
Appellant conveyed general powers to the attorney-in-fact as provided in section
404.710,2 thus making the listing agreement and contract for the sale of the property
binding on Appellant. Appellant’s point misses the mark.
At this point, it does not matter whether the Durable Power of Attorney was
defective because Appellant closed on the contract for sale procured by Respondent and
ratified the attorney-in-fact’s power under the Durable Power of Attorney to convey
Appellant’s real estate to the buyer procured by Respondent. The trial court found that
Respondent, a licensed broker-salesperson, produced a buyer ready, willing, and able to
purchase or lease the property at the sale price or the rental rate and on the terms listed on
a contract for which Respondent was to be paid a certain real estate commission. That
buyer brought suit seeking specific performance of the real estate sales contract and that
suit was settled wherein Appellant conveyed the property to the buyer for the sales price
that had been listed. The sale closed and Appellant received the sales price.3 Appellant
does not claim error in any of those findings.
Having ratified the existence of her daughter’s power under the Durable Power of
Attorney, Appellant cannot now seek to repudiate that ratification by asserting that her
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Appellant makes much of the issue that through the long history of the agent trying to obtain a listing
directly from Appellant that the agent knew that Appellant did not agree to a listing and, therefore, obtained
the contract for the sale of the property from her daughter. The claimed misuse of the Durable Power of
Attorney by Appellant’s daughter has not been appealed and is not before us.
2
All rule references are to Missouri Court Rules (2014), and all references to statutes are to RSMo 2000,
unless otherwise specified. Section 404.710 was amended in 2011; however, the Durable Power of
Attorney at issue in this case was signed in 2003.
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The trial court also held that the Durable Power of Attorney included both the general powers granted by
the statute as well as additional specific powers that are listed. We do not address that issue as it is not
necessary for a resolution of this matter.
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daughter’s power under the power of attorney was limited to conveying her real estate
only to her trust or to a trust for her spouse. The facts of this case are straightforward:
Appellant sold the real estate pursuant to the contract to the buyer who was procured by
Respondent; she ratified the action of her agent by selling the property and may not now
take the contrary position that there was no contract for the listing and sale of the
property.
As the Springfield Court of Appeals stated over fifty years ago in Wilks v. Stone,
339 S.W.2d 590 (Mo. App. Spfd.D. 1960):
As relates to agency, ‘ratification’ is an express or implied
adoption or confirmation, with knowledge of all material matters, by one
person of an act performed in his behalf by another who at that time
assumed to act as his agent but lacked authority to do so. Ratification
relates back and is the equivalent of authority at the commencement of the
act. It is the affirmance of a contract already made. The existence of
agency and the authority of the agent can be and often is implied by proof
of facts, circumstances, words, acts, and conduct of the party to be
charged. As applied to the agency or authority which is created or related
back by means of ratification, it may be implied by any facts and
circumstances from which it can be reasonably inferred that the party to be
charged (with knowledge of the facts) acquiesced in and accepted the
transaction as his own, or which are inconsistent with any other intention.
The intent to ratify may be implied from the circumstances, and this
implication may be made even though the person to be charged as
principal may have had an intention not to ratify.
As to what facts, circumstances, and conduct will justify the
inference of agency, no fixed rule can be stated. There is no particular
mode by which it must be established. It depends upon the situation in
each individual case . . . .
Probably the most certain evidence of implied ratification is the
acceptance and retention of the fruits of the contract with full knowledge
of the material facts of the transaction . . . .
Since ratification may be established by facts and circumstances, it
is sufficient to make a question for the trier of the fact if the whole sum
total of the facts and circumstances justifies the reasonable inference that
the party charged as principal accepted the transaction as his own. It is not
necessary that each separate act, fact or circumstance stand on its own as
proof sufficient to justify the inference. Each separate fact, act or
circumstance is admissible if it tends to establish the agency, even though
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only remotely relevant. Consequently a wide latitude is permitted in the
introduction of evidence as to the circumstances, and objections to the
reception of such evidence are not viewed with favor. If there is any
dispute as to the facts, or if different inferences can reasonably be drawn,
ratification is a question of fact to be determined by the trier of the fact
and not by the court.
Id. at 595-96 (footnotes omitted); see also American Multi-Cinema, Inc. v. Talayna’s
N.W., Inc., 848 S.W.2d 557, 559-60 (Mo. App. E.D. 1993) (similar statement of the law
quoting Wilks). The facts previously described are substantial evidence that Appellant
ratified the listing agreement and real estate contract, and we must affirm under any
theory supported by the record. Id. at 560 (“The court did not issue findings of fact and
conclusions of law, therefore, if the judgment can be affirmed under any theory we must
do so.”); Rule 73.01(c) (“All fact issues upon which no specific findings are made shall
be considered as having been found in accordance with the result reached.”).4
Appellant’s point is denied.
The judgment is affirmed.
Nancy Steffen Rahmeyer, P.J. – Opinion Author
Daniel E. Scott, J. – Concurs
William W. Francis, Jr., C.J. – Concurs
4
Although Respondent made a request for findings of fact and conclusions of law generally, and the parties
expressed an intention to submit requested findings of fact and conclusions of law, the trial court’s docket
sheet does not reflect that any request for specific findings or conclusions was filed with the trial court and
none was included in the legal file provided to us. A general request for findings of fact is insufficient to
require the trial court to make specific findings under Rule 73.01(c). Dardick v. Dardick, 670 S.W.2d 865,
866-67 (Mo. banc 1984); Rocking H Trucking, LLC v. H.B.I.C., LLC, 427 S.W.3d 891, 894 n.1 (Mo.
App. W.D. 2014). As a result, we treat all fact issues upon which no specific findings were made as found
in accordance with the judgment. Rule 73.01(c); Dardick, 670 S.W.2d at 868; Pearson v. Koster, 367
S.W.3d 36, 44 n.3, 52 (Mo. banc 2012). Even if specific findings of fact were requested properly but not
made by the trial court, we still will affirm if we are able to make a meaningful review of the issues on
appeal and the judgment is supported by the evidence as is true in this appeal. Hammons v. Ehney, 924
S.W.2d 843, 850 (Mo. banc 1996); Sneil, LLC v. Tybe Learning Center, Inc., 370 S.W.3d 562, 567, 573-
74 (Mo. banc 2012).
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