Midwest Land Investment Co. v. Veach

135 P.3d 1263, 35 Kan. App. 2d 883, 2006 Kan. App. LEXIS 549
CourtCourt of Appeals of Kansas
DecidedJune 16, 2006
DocketNo. 94,350
StatusPublished

This text of 135 P.3d 1263 (Midwest Land Investment Co. v. Veach) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Midwest Land Investment Co. v. Veach, 135 P.3d 1263, 35 Kan. App. 2d 883, 2006 Kan. App. LEXIS 549 (kanctapp 2006).

Opinion

McAnany, J.;

Douglas Veach and David Francis (collectively referred to as Veach) appeal the district court’s entry of summary judgment in a declaratory judgment action commenced by Midwest Land Investment Co., LLC (Midwest). We affirm.

Joel and Lynn Shafton were in bankruptcy. The assets of the estate included two parcels of real estate located in Johnson County. In November 2003, the bankruptcy trustee entered into a [884]*884real estate contract for the sale of these parcels to Dan Quigley for $155,000. Quigley was a member of Midwest. Paragraph 14 of the contract provided:

“Buyer’s and Seller’s performance hereunder shall be contingent upon and subject to Seller’s obtaining a final and nonappealable order from the Bankruptcy Court, pursuant to 11 U.S.C. § 362(f), authorizing Seller to consummate tire sale herein described .... Seller shall initiate the appropriate proceedings in the Bankruptcy Court to obtain said Court Order and shall prosecute said proceeding in good faith. In the event that the Bankruptcy Court issues a decision not to issue such Court Order, this contract shall be terminated . . . .”

On December 10, 2003, Quigley assigned to Veach his interest in this real estate sales contract for $10,000, the amount of earnest money Quigley paid under the contract. The assignment, standing alone, provided Quigley with nothing more than the return of his earnest money. Therefore, and on that same day, Midwest and Veach entered into a participation agreement for development of the real estate. Under this agreement, and as additional consideration for Quigley having assigned tire real estate contract to Veach, Veach agreed to give Midwest the initial opportunity to bid for a contract to provide marketing and sales services for the real estate. Further, Veach agreed to give Midwest 10% of the net profits from tire ultimate sale of the real estate or $250,000, whichever was less.

A week later, on December 18, 2003, the bankruptcy trustee advised that objections to the real estate sale had been filed. He reported that there were three potential buyers for the property, all of whom had apparently entered into contracts with the trustee similar to tire one entered into by Quigley. A hearing was set for the following day, December 19, and the parties were urged to attend since the trustee predicted that tire court would order an immediate auction of the property among the three potential buyers and thereafter approve the highest bid.

Veach appeared at the hearing on tire following day. As predicted, the court ordered an immediate auction and Veach’s bid of $275,000 was the highest. The court immediately confirmed the sale.

[885]*885On February 17, 2004, Veach advised Midwest that he considered the participation agreement to be void and did not intend to comply with it since Veach acquired the real estate not through the contract assigned by Quigley, but rather by being the successful bidder at the auction. Midwest responded by filing suit in the district court for a declaratory judgment declaring that the participation agreement remained a valid and enforceable agreement. When the court sustained Midwest’s motion for summaiy judgment and upheld the validity of the participation agreement, Veach appealed.

We need not review the well-known standards for summary judgment recently reiterated in State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005). Since we are in as good a position as the trial court to review the record and consider the parties’ claimed uncontroverted facts and the legal conclusions that may flow from them, our review is de novo. See Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004). This is particularly so when, as here, there is no dispute as to the facts.

Consideration

Veach claims the district court erred in finding consideration for the participation agreement. The participation agreement was entered into as an inducement for Quigley to assign to Veach the real estate sales contract. Veach argues that the existence of other sales contracts between the trustee and other prospective buyers rendered Quigley’s contract worthless, and his assignment transferred nothing of value to Veach.

We are not persuaded by this argument. First, Veach knew when the parties entered into the participation agreement that the contract that was the subject of the assignment was contingent upon approval by the bankruptcy court. Second, tire assignment conveyed all of Quigley’s rights in the real estate contract to Veach. It was the participation agreement that induced Quigley to give up these contract rights. In exchange for the promises in the participation agreement, Veach received the right to buy the real estate for $155,000 absent a challenge to the sale in bankruptcy court. When the sale was challenged, Veach had the opportunity to bid [886]*886on the property only because he succeeded to the interest of Quigley, who originally contracted to buy it. It was the promises contained in the participation agreement that induced Quigley to give up his rights in the real estate sales contract. Absent Quigley s contract and the assignment, Veach would have had no opportunity to become the successful bidder.

Veach argues that he could have bypassed Quigley entirely and dealt directly with the trustee, as other prospective buyers apparently did, to negotiate his own real estate sales contract for the property. While this may be true, this is not what Veach did. Since the assignment provided Quigley with no benefit other than the return of the earnest money he had paid, the participation agreement served as the added inducement for Quigley to forego his rights in the real estate sales contract in exchange for the benefits Midwest, his company, would enjoy. Thus, by entering into this transaction, Veach reaped the benefit of the time and effort expended by Quigley in contacting the trustee and negotiating the real estate sales contract.

By using the participation agreement to induce Quigley to assign to Veach his rights in the real estate sales contract, Veach eliminated Quigley as a competing potential buyer of the property. In arguing a lack of consideration, Veach focuses on the benefit, or lack thereof, to him. But consideration also may be based on the rights that Quigley gave up: here, the right to acquire the property if the court approved the contract, and the right to bid on the property if the court did not. See In re Estate of Shirk, 186 Kan. 311, 321-22, 350 P.2d 1 (1960). Before December 10, 2003, Quigley was a potential future owner of property in fee simple. After December 10, 2003, Quigley had no prospect of acquiring the property outright, but only the prospect that his company might share in future development profits if Veach could successfully close the transaction. There clearly was consideration to support the participation agreement.

Mutual Mistake

Veach next argues that the district court erred in granting summary judgment because the documents were not clear and un[887]

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Related

In Re Estate of Shirk
350 P.2d 1 (Supreme Court of Kansas, 1960)
Albers v. Nelson
809 P.2d 1194 (Supreme Court of Kansas, 1991)
State Ex Rel. Stovall v. Reliance Insurance
107 P.3d 1219 (Supreme Court of Kansas, 2005)
Roy v. Young
93 P.3d 712 (Supreme Court of Kansas, 2004)

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Bluebook (online)
135 P.3d 1263, 35 Kan. App. 2d 883, 2006 Kan. App. LEXIS 549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/midwest-land-investment-co-v-veach-kanctapp-2006.