Conley v. Rauschenbach

863 S.W.2d 617, 1993 Mo. App. LEXIS 1451, 1993 WL 360965
Missouri Court of Appeals·Decided September 21, 1993·No. No. 62813·Published·Cited by 7 cases

Opinion

GRIMM, Presiding Judge.

In this court-tried ease, appellant broker sought specific performance of a real estate contract against respondents/sellers. The trial court denied broker’s petition and awarded sellers $6,625 for their attorney fees. Broker appeals. We modify the judgment by deleting the attorney fees award and affirm.

Broker raises four points on appeal. The first two points relate to the trial court’s findings that: (1) Orvin Rauschenbach (father/seller) never signed or accepted the real estate contract; and (2) offers were made to broker that were not conveyed to sellers. The third point alleges trial court error in failing to find that Debra Rauschenbach (daughter/seller) breached the contract and in failing to order specific performance. The fourth point alleges trial court error in awarding attorney fees to sellers.

I. Background

The evidence viewed in a light most favorable to the judgment and consistent with the trial court’s findings, discloses the following. Since at least 1983, father and daughter have owned a tract of land. In October, 1985, daughter signed a listing contract with broker on a portion of this property.

The following month, broker generated a contract for the sale of the property to a nursing home at $31,000 per acre. The contract, signed by daughter, was contingent upon successful rezoning. Broker told her he would take care of the rezoning. Later, broker told her the rezoning application had been turned down. About three years later, daughter determined that no application for rezoning had ever been made.

In June of 1988, daughter purchased an adjoining 1.84 acre tract of land. Father’s name was placed on the deed as a joint tenant because it was the only way daughter could get a loan.

Broker told daughter “it was absolutely necessary” for her to purchase this property because “nobody [was] going to buy [her property] without it.” Broker had a listing on this tract. He represented both the landowners and daughter in negotiating the sale. Also, he received a sales commission from landowners.

About each six months beginning October 1985, new listing agreements were signed by daughter and broker. Daughter signed the most recent listing agreement on July 11, 1988.

In August or September, 1988, broker called a builder and told him the listing contract was about to expire. Broker told builder he did not think the listing contract would be renewed, and wanted to know if builder was still interested in the property. Builder was interested and told broker he would “probably be willing to pay” $30,000 an acre. Broker told him that daughter did not want that much and suggested he offer $22,500 * per acre, which he did.

Broker took builder’s offer to daughter. He told her to reject the offer because she could get more. Daughter asked if she could make a counteroffer for $29,000. Broker told her “definitely not to counter it like that, that he would go back and try to get” a higher offer.

Daughter rejected that offer. Broker told builder the reasons were (1) too low of a price, and (2) too long until closing. Builder asked broker what price she was looking for, and broker suggested $24,000. Builder signed a new offer for that amount and suggested that he meet with daughter. Broker rejected this suggestion.

Broker then prepared a contract of his own offering $24,000 an acre. Broker submitted the two contracts to daughter at the same time. Broker told daughter that $24,-000 was the most builder was willing to pay. Broker said broker’s offer was better because daughter was to retain her house and would receive four lots, all of which would be rezoned. Daughter signed broker’s contract [619] on October 20, 1988; father signed November 7, 1988.

Builder’s offer was rejected. Builder asked why daughter did not make a counteroffer. Broker responded, “Well, she took another offer. And I’m going to be handling the zoning process for the people.” He did not tell builder that it was his offer that was accepted.

We emphasize three terms of broker’s purchase contract with sellers. First, the contract contained a contingency for rezoning. Second, it provided that closing would occur on June 22, 1989. Third, the contract could be modified or amended only by a written instrument signed by sellers and broker.

Broker attempted to rezone the property, but was unsuccessful in his efforts. During his attempts at rezoning, broker prepared an amendment to the October 20,1988 contract. This amendment changed the closing date from June 22 to September 22, 1989. It also reduced the number of lots retained by sellers from four to two. Daughter signed this amendment on February 12,1989, but father never signed it.

During the years the property was listed, daughter would periodically ask broker about the status of the property. Broker would tell daughter “there wasn’t anyone interested,” the price was “too high,” the property was “very poor[ly] laid-out,” it was “undesirable,” and it “needed maximum grading.” However, during this time, many builders had expressed an interest in purchasing the property. These builders were always told by broker that the property was sold or under contract.

II. The Contract

In his first point, broker claims the “trial court erred in finding that [father] never signed or accepted the real estate contract because [father] signed a real estate contract for the sale of the subject real estate ... on November 7, 1988.”

The trial court in its findings of fact and conclusions of law stated:

The Court finds as a fact that the contract [in] dispute was accepted and signed by [daughter] but that the contract was never accepted or signed by [father].

Broker argues that although father did not sign the amendment, the original contract was still in force. He contends that this case should be remanded to determine whether broker is “entitled to specific performance of the contract that was signed” by daughter and father.

Broker’s contention overlooks his pleadings and testimony. These fully support the trial court’s finding that “the contract [in] dispute ... was never accepted or signed by” father, (emphasis added). In his petition, broker pled

4. On or about the 22nd day of October 1988, [broker] and [sellers] entered into a written agreement for the purehase/sale of said land; ....
⅜ ⅜ ⅜ ⅜ ⅜ ⅜£
7. The contract was amended on or about February 12, 1989, ....
8. Plaintiff has been and now is ready, willing and able to perform said contract. ...
⅜ ⅜ ⅜: ⅜ ⅜ ⅜
12. Closing on this contract was set for September 22, 1989, ... and [sellers] were notified of same; whereat [broker] appeared ready to perform, however [sellers] failed to appear and close the contract, (emphasis added).
WHEREFORE, [broker] prays for a decree ordering that [sellers] 1) perform the contract according to its terms....

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Conley v. Rauschenbach, 863 S.W.2d 617, 1993 Mo. App. LEXIS 1451, 1993 WL 360965 (Mo. Ct. App. 1993).

863 S.W.2d 617 (Conley v. Rauschenbach) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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