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Rosenfeld v. Boniske

Court of Appeals of Missouri, Eastern District, Third Division

June 24, 2014

DONALD ROSENFELD, and LYNNE ROSENFELD, Respondent,
v.
DEBORAH J. BONISKE, Appellant

Page 82

Appeal from the Circuit Court of St. Louis County. Honorable Steven H. Goldman.

FOR APPELLANT: Ronald F. Borgmann, Berg, Borgmann & Wilson, LLC, St. Louis, Missouri.

FOR RESPONDENT: Robert E. Jones, Curtis, Heinz, Garrett & O'Keefe, P.C., St. Louis, Missouri.

Kurt S. Odenwald, Judge. Mary K. Hoff, P.J., Concurs. Angela T. Quigless J., Concurs.

OPINION

Page 83

Kurt S. Odenwald, Judge

Introduction

Appellant Deborah Boniske (" Boniske" ) appeals from the trial court's judgment in favor of Respondents Donald and Lynne Rosenfeld (" the Rosenfelds" ) on their Petition for Declaratory Judgment and Refund of Earnest Money Deposit and against Boniske on her counterclaim for breach of contract. Boniske alleges the trial court erred when it considered terms of an oral agreement between herself and the Rosenfelds that either added to or varied the terms of the fully integrated written agreement entered into by the parties. Boniske further claims the trial court erred in entering an alternative finding that the contract might be voidable under the doctrine of mutual mistake. Because mutual mistake was not presented to the trial court as a theory of recovery, mutual mistake may not form the basis of any judgment allowing rescission of the contract by the Rosenfelds. Because the trial court misapplied the law by considering evidence of an oral agreement in violation of the parol evidence rule, we reverse the judgment of the trial court, enter judgment in favor of Boniske on both Rosenfelds' claims and on Boniske's counterclaim, and remand this matter to the trial court for a determination of Boniske's damages.

Factual and Procedural History

Viewed in the light most favorable to the judgment, the following evidence was adduced at trial: In 2011, Boniske listed her home at #30 Westwood Country Club Grounds for sale. The Rosenfelds, who

Page 84

lived in the same neighborhood, saw the for sale sign in Boniske's yard and expressed interest in purchasing her home. Because Lynne Rosenfeld suffered from lymphoma, the Rosenfelds wished for their interest in Boniske's home to remain confidential. Donald Rosenfeld feared that if their interest in selling their home and buying Boniske's home became public, people might speculate about Lynne Rosenfeld's health. Before submitting an offer, Donald Rosenfeld asked Boniske for her word that no one would know the Rosenfelds were attempting to buy her house and sell theirs. Boniske assured Donald Rosenfeld that he had nothing to worry about.

Donald Rosenfeld drafted the sale contract that he submitted to Boniske.[1] The proposed sale contract, signed by the Rosenfelds on October 22, 2011, provided a total sale price of $675,000 for the home at #30 Westwood Country Club Grounds. The sale contract further provided that the Rosenfelds would pay $10,000 as an earnest money deposit and that the closing date would be February 17, 2012. A section of the sale contract titled " General Closing Conditions and Sales Practices" included a provision stating: " This is the entire contract and neither party shall be bound by representation as to value or otherwise unless set forth in [the] contract."

The proposed sale contract also included a page titled " Special Agreements for the Purchase of #30 Westwood Country Club Grounds," which included four special agreements. Special Agreement No. 1 stated that the $10,000 earnest money deposit shall be conveyed to the title company within 24 hours of the Rosenfelds' receipt of the fully executed contract. Special Agreements No. 2 through No. 4 provided for a feasibility contingency. Under those special agreements, the Rosenfelds had until January 25, 2012, to conduct a feasibility study of the property. If they were dissatisfied with the feasibility study and notified Boniske by January 25, 2012, the contract would be null and void and they would be entitled to a return of their $10,000 earnest money deposit.

Boniske did not accept the Rosenfelds' offer and instead submitted Counteroffer No. 1. Counteroffer No. 1 stated that it was a counteroffer " To Sales Contract dated Oct. 22, 2011, by Donald Rosenfeld and Lynne Rosenfeld, His wife for property at 30 Westwood Country Club." Counteroffer No. 1 changed the sale price to $760,000 and replaced the feasibility contingency in Special Agreements No. 2 through No. 4 with a provision that the contract was contingent upon the Rosenfelds entering into a contract for the sale of their current residence on or before January 25, 2012. If no contract was entered into by that date, the Rosenfelds had the option to notify Boniske that the contract was null and void. If the Rosenfelds notified Boniske that the contract was null and void, Boniske was to notify the title company to return the Rosenfelds' earnest money.

The Rosenfelds did not accept Counteroffer No. 1 but rather submitted Counteroffer No. 2. The only change between Counteroffer No. 2 and Counteroffer No. 1 was the sale price, which was decreased to $730,000. Boniske did not accept Counteroffer No. 2, but submitted Counteroffer No. 3, which increased the sale price to $740,000. The Rosenfelds accepted Counteroffer No. 3 on ...


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