Niemuth v. Gaston

• Docket Number: s. SD 37950,SD 38028
• Decision Date: 02 April 2024
• Citation: Niemuth v. Gaston, 688 S.W.3d 51 (Mo. App. 2024)
• Parties: Douglas NIEMUTH, and Carol Niemuth, Respondents/Cross-Appellants, v. Donald GASTON, and Roundcount Ranch, LLC, Appellants/Respondents.
• Court: Missouri Court of Appeals

688 S.W.3d 51

Douglas NIEMUTH, and Carol Niemuth, Respondents/Cross-Appellants,

v.Donald GASTON, and Roundcount Ranch, LLC, Appellants/Respondents.

Nos. SD 37950 and SD 38028

CONSOLIDATED

Missouri Court of Appeals, Southern District, In Division.

Filed: April 2, 2024

APPEAL FROM THE CIRCUIT COURT OF IRON COUNTY, Honorable Megan K. Seay, Judge

ATTORNEYS FOR APPELLANTS - KEVIN P. ROUNDCOUNT, Carrollton, IL, MICHAEL W. SILVEY, Fredericktown, MO, EMILY D. ROMAN, St. Louis, MO, PATRICK A. BOUSQUET, St. Louis, MO.

ATTORNEY FOR RESPONDENTS - FLOYD T. NORRICK, Hillsboro, MO.

MARY W. SHEFFIELD, J.

Donald Gaston("Gaston") and Roundcount Ranch, LLC("Roundcount") appeal from the trial court’s grant of summary judgment in favor of Douglas and Carol Niemuth(collectively, "the Niemuths") on their claims for a declaratory judgment and breach of contract and denial of Gaston and Roundcount’s motions for summary judgment on their claims for declaratory judgment.In its judgment, the trial court found the Niemuths were entitled to judgment as a matter of law on their claims because the right-of-first-refusal ("ROFR") provision in the real estate contract between Gaston and the Niemuths "allowed for [the Niemuths] to match the purchase price offer per acre, with like terms, pursuant to the May 14, 2021 sales contract entered into between [Gaston] and [Roundcount] for any portion or all of the 190 acres specifically identified in the right of first refusal."It also ordered Gaston to sell the "97.3 acres to [the Niemuths] as specified by [the Niemuths[.]"

Gaston and Roundcount appeal from that judgment in two points.In point 1, Gaston and Roundcount argue the trial court erred in granting the Niemuths’ motion for summary judgment and denying Gaston and Roundcount’s motions, because the Niemuths failed to demonstrate they were entitled to judgment as a matter of law in that the ROFR agreement required them to match the terms of Roundcount’s offer to purchase the entire 190-acre tract, which they did not do.We agree.Because the ROFR required the Niemuths to match the terms of Roundcount’s bona fide offer, which included the term that the offer was to purchase the entire 190-acre tract, the Niemuths were not entitled to judgment as a matter of law.¹The trial court’s judgment is reversed.

Standard of Review

Our review of the trial court’s decision to grant summary judgment is de novo.Green v. Fotoohighiam,606 S.W.3d 113, 115(Mo. banc 2020)."Our de novo standard of review means that we look at the summary judgment issues presented on appeal as the trial court should have initially under Rule 74.04, and we give no deference to the trial court’s ruling."²Great Southern Bank v. Blue Chalk Constr., LLC,497 S.W.3d 825, 834(Mo. App. S.D.2016).We review the record in the light most favorable to the party against whom summary judgment was entered, and that party is entitled to the benefit of all reasonable inferences from the record.Green,606 S.W.3d at 116.

"Summary judgment practice in Missouri is governed by Rule 74.04 and [the Supreme Court of Missouri’s]decision in ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,854 S.W.2d 371(Mo. banc 1993)."Green,606 S.W.3d at 116."Summary judgment is proper only if the moving party establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law."Templeton v. Orth, SC 100089, 685 S.W.3d 371, 374(Mo.Jan. 30, 2024).

"Ordinarily, the denial of a motion for summary judgment will not be reviewed on appeal."Grissom v. First Nat’l Ins. Agency,371 S.W.3d 869, 879(Mo. App. S.D.2012)."Where, however, the material facts are undisputed and the merits of the denied cross-motion for summary judgment are inextricably intertwined with the issues raised in the granted motion for summary judgment, the merits of the denial of the cross-motion may be reviewed on appeal."Farmer’s Ins. Co. v. Wilson, 424 S.W.3d 487, 491 n.4(Mo. App. S.D.2014).

Boone Cnty. Fire Prot. Dist. v. City of Columbia,638 S.W.3d 555, 558(Mo. App. W.D.2021)(quotingBehrick v. Konert Farms Homeowners’ Ass’n,601 S.W.3d 567, 573(Mo. App. E.D.2020)).Because the material facts are undisputed and the merits of Gaston and Roundcount’s denied cross-motions for summary judgment are inextricably intertwined with the issues raised in the Niemuths’ granted motion for summary judgment, we also review the merits of the denial of Gaston and Roundcount’s motions for summary judgment.

Factual and Procedural Background

The parties do not dispute the facts of the case; they only argue the application of the law.In 2012, Gaston and the Niemuths entered into a real estate contract which granted the Niemuths a ROFR to purchase "any portion or all of [Gaston’s] remaining land according to the bonefide [sic] offer[.]"The parties agreed the term "remaining land" referred to a 190-acre tract owned by Gaston.The ROFR provided:

5.[The Niemuths] shall have the right of first refusal to purchase any portion or all of [Gaston’s] remaining land according to the bonefide [sic] offer received by [Gaston] from a bonefide [sic] purchaser for value.This right of first refusal shall be in full force and effect until [Gaston] sells all of [his] remaining land to a bonefide [sic] purchaser for value and [the Niemuths][have] had the opportunity to exercise this right of first refusal as to every part and parcel of [Gaston’s] remaining land.

A. [Gaston] shall notify [the Niemuths] in writing of the receipt of a bonefide [sic] offer to purchase all or a portion of [Gaston’s] remaining land.[Gaston] shall make the notification in writing and include a copy of such bonefide [sic] offer, either by copy of said offer, or if the offer is verbal, by a transcription in writing of the terms and conditions of said verbal offer.The notification shall be give[n] to [the Niemuths] within 15 days after receipt of said offer.

B. [The Niemuths] shall have 15 days to exercise the right of first refusal to purchase in writing to [Gaston] within 15 days after the date of receipt of written notification from [Gaston]….

C.The procedure set forth in the previous paragraphs 5A and 5B shall be repeated until [Gaston] has sold all of his remaining land to either purchaser for value or to [the Niemuths], as the case may be.

In May 2021, Gaston received an offer (the "first offer") from Roundcount to purchase approximately 508 acres of Gaston’s land, which included the entire 190-acre tract which was subject to the ROFR, for a total price of $1,800,000.00.Gaston timely notified the Niemuths of the first offer and enclosed the terms of the sale.

The Niemuths timely notified Gaston they were opting to exercise their ROFR as to only 97.43 acres of the remaining land, not the entire 190-acre tract.Counsel for Gaston responded that the terms in the first offer were for the entire 190 acres.The Niemuths again stated their intention to purchase only 97.43 acres based on the purchase price in the first offer.

Gaston then received a second offer from Roundcount (the "second offer") whereby Roundcount offered to purchase the complete 190-acre tract for $902,500.Gaston timely provided the Niemuths with the terms of the second offer.The Niemuths again timely indicated their intent to purchase only 97.43 acres.Gaston did not believe the Niemuths had a right to purchase only one of the parcels being sold.

The Niemuths filed suit soon thereafter, seeking a declaratory judgment and specific performance, alleging that under the ROFR, they had the right to purchase the 97.43 acres.Roundcount filed a motion to intervene, which was granted, and filed a counterclaim/third-party petition against the Niemuths, seeking a declaratory judgment, alleging that under the ROFR, the Niemuths failed to properly exercise their right of first refusal by failing to agree to purchase the entire 190-acre tract.³Gaston likewise filed a counterclaim seeking a declaratory judgment on the grounds the Niemuths failed to properly exercise their right of first refusal by failing to agree to purchase the entire 190-acre tract.

Each party filed separate motions for summary judgment on their claims for a declaratory judgment, arguing that they were entitled to judgment as a matter of law based on the language in the ROFR.In addition, the Niemuths also sought summary judgment on their breach of contract claim.The trial court granted the Niemuths’ motion for summary judgment and denied Gaston and Roundcount’s motions for summary judgment, and this appeal followed.

Discussion

[1, 2]In point 1, Gaston and Roundcount argue the Niemuths were not entitled to judgment as a matter of law because, under the terms of the ROFR, the Niemuths were required to match the terms of Roundcount’s bona fide offer to purchase the entire 190 acres of land.

Under Missouri law, a right of first refusal, or preemptive right, requires the seller, when or if she decides to sell the stipulated piece of property, to first offer the property to the holder of the right, either at a stipulated price or at the price and on the terms the seller is willing to sell.

Blue Ridge Bank & Tr. Co. v. Trosen, 309 S.W.3d 812, 816(Mo. App. W.D.2010)(quotingSchroeder v. Duenke,265 S.W.3d 843, 847(Mo. App. E.D.2008))."The person holding the right of first refusal or preemption cannot compel an unwilling seller to sell."Anderson v. Parker,351 S.W.3d 827, 831(Mo. App. W.D.2011).But, once the seller chooses to sell, the holder of a right of first refusal has the option of purchasing the property in accordance with the agreement.Blue Ridge Bank,309 S.W.3d at 816.In other words,

a right of first refusal cannot be exercised unilaterally, but can only be exercised if two conditions are met: first, the right of first refusal must be triggered by a bona fide and enforceable offer to purchase the property, meaning an offer that is made honestly and with serious intent, and second,

...