Roetzel v. Coleman

• Decision Date: 03 March 2010
• Docket Number: No. CA 09–162.,CA 09–162.
• Citation: 374 S.W.3d 166,2010 Ark. App. 206
• Parties: Wade ROETZEL, Appellant/Cross–Appellee v. Troy COLEMAN, Appellee/Cross–Appellant.
• Court: Arkansas Court of Appeals

2010 Ark. App. 206

374 S.W.3d 166

Wade ROETZEL, Appellant/Cross–Appellee

v.Troy COLEMAN, Appellee/Cross–Appellant.

No. CA 09–162.

Court of Appeals of Arkansas.

March 3, 2010.

Brian Gene Brooks, Greenbrier, James A. Simpson Jr., Simpson & Simpson, Searcy, for Appellant.

Robert Welton Hudgins, Searcy, for Appellee.

JOSEPHINE LINKER HART, Judge.

[Ark. App. 1]The White County Circuit Court entered a summary judgment that construed an agreement between appellant Wade Roetzel and appellee Troy Coleman to be an option that Roetzel failed to exercise. The court also found that Coleman failed to prove his damages. The appeal and cross-appeal challenge those rulings. We affirm on direct appeal and on cross-appeal.

Coleman is the owner of certain real property containing over 1,100 acres located in White County. On February 1, 2004, the parties entered into an agreement, titled “CONTRACT OF SALE,” that provided, in pertinent part, as follows:

1. For the consideration and purposes herein set forth, SELLER [Coleman] does hereby let, PURCHASE ON CONTRACT and demise unto SALE the [Ark. App. 2]following described real property situated in White County, Arkansas to wit: [description follows.] Pipeline easement for gas and water pertaining to ground, all farm programs and bases in Bald Knob, Arkansas and or as shown in Exhibit A, Located in White County on Sections 3, 10, 11, 22, 23, 27 Arkansas, White County.

2. The term of this CONTRACT shall be for 3 years commencing February 1st 2004 but can be terminated either by the SELLER or BUYER under the terms and conditions set forth hereinafter. SELLER grants BUYER the option and right to purchase (OUTRIGHT) the above described real property for the purchase price of $1,033,375.00, ($1,033,375.00 less $100,000.00 down) @6.0% interest. BUYER shall have the right to exercise said option to purchase or sell any part at anytime so long as SELLER agrees to the price, during the term of the CONTRACT. BUYER agrees to apply for any programs for the purpose of improving the land and agrees to sign off any programs that BUYER may ask for as long as BUYER and SELLER agrees (such government programs, private mediation, etc.). BUYER shall give to SELLER a minimum of thirty (30) days written notice of BUYER'S intention to exercise their option to purchase the above described real property.

....

4. If BUYER breaches any of the terms and conditions of this CONTRACT other than the payment of the CONTRACT, and if after ninety (90) days written notice, BUYER fails to correct said breach or deficient condition, said CONTRACT shall automatically terminate. In the event BUYER fails to pay the CONTRACT, and after ninety (90) days written notice BUYER does not cure such default within said ninety (90) day period, said CONTRACT shall automatically terminate at the end of said ninety (90) day period.

5. SELLER agrees to accept and BUYER agrees to pay as CONTRACT for said property the sum of $30,000.00 per year plus 25% of the crop yield, not to exceed $100,000.00 total, payable after January 1, 2004 but before December 31, 2004, continuing the same for the length of the CONTRACT, with the entire amount going to loan. BUYER shall be required upon execution of the CONTRACT to deposit the sum of $100,000.00 with SELLER as a security deposit to insure that BUYER shall comply with all of the terms and provisions of this agreement including the payment of CONTRACT.

....

[Ark. App. 3]14. If BUYER shall fail or refuse to pay the PAYMENTS aforesaid at the time and in the manner set forth herein, or to do or perform any other of the covenants on the part of the BUYER herein contained, or shall violate in any particular any of the conditions hereof, SELLER may, at his option and in accordance with the aforesaid notice requirements, declare this CONTRACT terminated, and shall have the right to enter upon and take possession of the property and premises and to evict and expel the BUYER, or his agents, or representatives from said property, with possible prejudice to any rights which SELLER may have.

On July 8, 2005, Coleman hand delivered a notice to Roetzel cancelling the agreement. The notice also asserted that certain unspecified sums, including interest to date and expenses for fertilizer and repairs to a well, were due immediately. The notice further provided that, if Roetzel agreed to the immediate cancellation of the contract, these sums would be forgiven.

On July 21, 2006, Roetzel executed an affidavit stating that he and his wife sent notice to Coleman on that same day exercising the option to purchase the property. This affidavit was recorded in the land records.

On July 5, 2007, Coleman filed the complaint in this action, alleging that Roetzel never performed his obligations under the agreement and that Roetzel owed approximately $30,000 in expenses for farming operations advanced by Coleman. The complaint alleged that the agreement was an option that was not binding upon Coleman because of inconsistent terms, poor draftsmanship, and a lack of objective intent of Roetzel to enter into the agreement. The complaint further alleged that Coleman cancelled the agreement, but Roetzel continued to assert an interest in the property. The complaint prayed that title to the real [Ark. App. 4]property be quieted in Coleman and sought damages for the unpaid expenses and attorney's fees Coleman incurred in a bankruptcy case filed by Roetzel.

Roetzel filed a pro se response in which he denied the material allegations of the complaint. Through counsel, Roetzel amended his response to assert the affirmative defenses of payment, waiver, estoppel, and setoff. Roetzel also filed a pro se counterclaim denominated as a “Complaint for Specific Performance” in which he sought to have a third party, Darrell Murray, pay off the balance owed on the property. Coleman denied the material allegations of the counterclaim and asserted the defense of laches.

On July 16, 2008, Coleman filed his motion for summary judgment in which he argued that the agreement was so poorly drafted by Roetzel that there was never a meeting of the minds for a contract for sale and, therefore, title to the property should be quieted in Coleman. In the alternative, Coleman argued that, if there was a contract for sale, Roetzel breached the contract; was given notice of the breach; and failed to remedy the breach. This, according to Coleman, resulted in the forfeiture of any rights Roetzel had under the contract.

Roetzel responded to the motion by asserting that the agreement was an installment land contract, and that there was no ambiguity. He also asserted that Coleman had waived any breach of the agreement by accepting payments, both before and after the notice of cancellation.

The circuit court initially denied the motion for summary judgment, finding that there were factual disputes that must be determined. However, on September 5, 2008, after another [Ark. App. 5]hearing, the court issued its order granting the motion for summary judgment. The court found that the agreement was an option for Roetzel to purchase the property from Coleman. The court found that there were three methods by which Roetzel could exercise the option and purchase the property. These methods included paying the full purchase price in cash or paying $100,000 at the time of execution of the agreement or by paying $30,000 at the time of execution, with the balance to be paid by December 31, 2004. The court found that the $100,000 was consideration for the option and that Coleman was not bound until Roetzel had paid the $100,000, which was not done. The court also found that the agreement was neither a lease nor a contract for sale. The court concluded that the option terminated on February 2, 2007, at the latest. Neither party was found to have proven its damages. The court concluded that Coleman was entitled to have title quieted in himself and the court dismissed Roetzel's counterclaim for specific performance. The parties timely filed notice of appeal and notice of cross-appeal.

Before we address the merits of the appeal and cross-appeal, we first take up Coleman's argument that the direct appeal should be dismissed because we do not have appellate jurisdiction. This argument is based on Roetzel's failure to strictly follow the requirements of Rule 5 of the Arkansas Rules of Appellate Procedure—Civil. Citing Clark v. Tobias, 368 Ark. 591, 247 S.W.3d 886 (2007), for the proposition that compliance with Rule 5 must be “strict,” Coleman asserts that this appeal must be dismissed because Roetzel failed to follow the procedures specified in the rule for securing an extension of time to prepare the trial [Ark. App. 6]transcript, which makes its filing untimely. Specifically, Coleman argues that Rule 5 was not followed in that it was the court reporter, not Roetzel, who sought the extension of time to complete the record. We decline to dismiss this appeal.

In Holloway v. Arkansas State Board of Architects, 348 Ark. 99, 71 S.W.3d 563 (2002), also a case where the court reporter sought the extension of time, the supreme court held that an appellee may not challenge the appellant's failure to strictly comply with Rule 5 after a transcript has been lodged within the time granted by the circuit court. That is exactly the situation here. On December 19, 2008, the circuit court entered an order extending the time to file the record until February 19, 2009. The record was filed on February 15, 2009. It was not until May 20, 2009, that Coleman filed his motion to dismiss the appeal. We therefore consider the appeal on the merits.

This court's standard of review for a...