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09/21/93 ROBERT C. CONLEY v. DEBRA RAUSCHENBACH AND

September 21, 1993

ROBERT C. CONLEY, PLAINTIFF/APPELLANT,
v.
DEBRA RAUSCHENBACH AND ORVIN A. RAUSCHENBACH, DEFENDANTS/RESPONDENTS.



Appeal from the Circuit Court of St. Louis County. Honorable Robert G. J. Hoester.

Stanley A. Grimm, Presiding Judge, Carl R. Gaertner, Judge, concurs. Clifford H. Ahrens, Judge, concurs.

The opinion of the court was delivered by: Grimm

In this court-tried case, appellant broker sought specific performance of a real estate contract against respondents/sellers. The trial court denied broker's petition and awarded sellers $5,525 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 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 *fn1 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 ...


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