Court of Appeals of Missouri, Southern District, Second Division
APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY. Honorable Mark Orr, Circuit Judge.
For Appellant: Russ Schenewerk and Taylor C. Moore, SCHENEWERK, FINKBINDER & ALLEN, Branson, Missouri.
For Respondent: Brett W. Roubal and Philip R. Quinn, BAIRD LIGHTNER MILLSAP, Springfield, Missouri.
GARY W. LYNCH, J. - Opinion author. NANCY STEFFEN RAHMEYER, J. - concurs. DON E. BURRELL, J. - concurs.
GARY W. LYNCH, J.
Kilimanjaro, LLC (" Kilimanjaro" ), appeals the trial court's judgment in favor of Morris Group, Inc. (" Morris Group" ). Kilimanjaro claims that the trial court erred
in its interpretation of the effective date of a contract between the two parties. Because Kilimanjaro premises its claim upon a definition of " effective date" that never became part of the contract between the parties, we affirm. We remand the case to the trial court for an evidentiary hearing and entry of judgment on Morris Group's motion for attorney fees on appeal.
Facts and Procedural History
This case began as an interpleader action by Tri-Lakes Title & Escrow, LLC, to determine the rights to certain earnest money held in escrow pursuant to an agreement between Kilimanjaro and Morris Group. In 2008, Morris Group owned the Quality Inn Motel and was attempting to sell it. On March 26, 2008, Kilimanjaro offered to buy the motel for $5,100,000. The offer contained a provision stating that the effective date of the contract would be " the date of final acceptance hereto, as indicated by the date adjacent to the signature of the last party to sign this Contract or the Counter Offer attached hereto (if any)." The offer specified that Kilimanjaro would provide $51,000 in earnest money and contemplated that enforceability of the entire contract was contingent on Kilimanjaro being able to obtain financing through SBA. It also provided Kilimanjaro with forty-five days from the effective date to obtain such financing. In the event that Kilimanjaro tried, in good faith, to obtain such financing and was unable to do so, the offer provided that Kilimanjaro must give notification to Morris Group by either sending Morris Group a statement from the lender that turned them down or by notarized affidavit. Failure to timely do so within forty-five days after the effective date would waive Kilimanjaro's right to recover the earnest money. The offer was memorialized in a written document entitled " Commercial and Industrial Real Estate Contract" and that referenced itself within as the " Contract." While there were places on this document for Morris Group to accept or reject it, Morris Group signed neither, but initialed and checked the statement that " Seller . . . counter offers (Counter Offer Form MSC-2040, which amends the terms of this Contract, is attached and incorporated into this Contract)."
Morris Group's Counter Offer was memorialized on March 31, 2008, in a form MSC-2040 document entitled " Counter Offer #One" that stated, " Only the terms contained in this Counter Offer, together with the remaining unchanged terms of the Contract (including any other addenda or riders attached thereto), constitute the new offer."  The Counter Offer designated a purchase price of $5,350,000. Because the motel was already subject to an existing sale contract to another party, the Counter Offer conditioned Kilimanjaro's purchase upon Kilimanjaro assuming first position as a buyer if the existing contract was not consummated with a sale of the motel. The Counter Offer further specified, among other changes not relevant to this appeal, that the " Effective date will be date Buyer is notified they are in 1st position." Kilimanjaro signed the " Acceptance . . . of Counter Offer" provision on this form on April 4, 2008, agreeing " to the modification(s) or additional term(s) and condition(s) in the Counter Offer" and accepting
" the Contract, as modified by this Counter Offer[.]"
Kilimanjaro was notified that it had moved to first position as Buyer on May 7, 2008. An " amendment" to the contract was signed by the parties on May 12, 2008, expressly stating that the " effective date" of the contract would be May 7, 2008, because the " Contract has been moved from 'Back up Offer' to first position[.]" Kilimanjaro and Morris Group " amended" the contract again on June 13, 2008, to lower the price to $5,200,000, due to costs to update the motel. Kilimanjaro was unable to obtain financing, and the ...