Court of Appeals of Missouri, Western District, Special Division
from the Circuit Court of Moniteau County, Missouri The
Honorable Peggy D. Richardson, Judge.
Before: Edward R. Ardini, Jr., Presiding Judge, Mark D.
Pfeiffer, Judge and Gary D. Witt, Judge.
D. Witt, Judge.
Farms, LLC ("ROH Farms") appeals the judgment of
the Circuit Court of Moniteau County, Missouri finding that
ROH Farms is not entitled to specific performance of two
contracts between ROH Farms and Richard Cook
("Richard") and Dawn Cook ("Dawn")
(collectively the "Cooks"). ROH Farms argues that
the trial court erred in not granting specific performance
because any possible repudiation on the part of ROH Farms was
retracted when the Cooks did not treat it as a material
breach. ROH Farms further claims that the trial court erred
in not granting specific performance because the contracts
could not be unilaterally terminated, tendering the purchase
price was not required to enforce the contracts, and granting
specific performance would not have been unjust. We affirm.
Farms is a limited liability company managed by Danny Harris
("Harris"), who has the authority to act on behalf
of ROH Farms. ROH Farms and the Cooks entered into a contract
for the sale of approximately 249 acres of farmland owned by
the Cooks on March 17, 2011 ("Farm Contract"). The
Farm Contract excluded the Cooks' residence and five
acres surrounding the house. Margaret Rehma-Boulch
("Rehma-Boulch"), a licensed real estate broker
from Re/Max, represented ROH Farms in the Farm Contract
transaction. Joyce Bremer ("Bremer"), a licensed
real estate salesperson with Re/Max, originally acted as the
Cooks' agent under an exclusive right to sell agreement.
Since both parties to the Farm Contract were represented by
Re/Max agents, both Rehma-Boulch and Bremer became dual
agents acting on behalf of both Buyer and Seller.
the parties entered into the Farm Contract, Harris informed
the Cooks for the first time of ROH Farms' plan to place
a large cattle feedlot on the farm property adjacent to the
Cooks' residence. Harris informed them that the placement
of the feedlot would result in the Cooks' residence being
uninhabitable due to the flies and odor. Due to this
information, the parties entered into an additional contract
to sell the Cooks' residence to ROH Farms on September
22, 2011. Rehma-Boulch and Bremmer represented ROH Farms and
the Cooks as dual agents acting for both parties under the
terms of the contract for the residence ("Residential
Contract"). The closing dates for both contracts was
ultimately set for March 9, 2012.
the Farm Contract and the Residential Contract contained
paragraphs titled "DEFAULT/REMEDIES" and stated in
If either party defaults in the performance of any obligation
under this Contract, the party claiming default shall notify
the other party in writing of the nature of the default and
the party's election of remedy…
If Seller defaults, Buyer may (1) specifically enforce this
Contract and recover damages suffered by Buyers as a result
of the delay in the acquisition of the Property; (2)
terminate this contract by Notice to Seller, and agree to
release Seller from liability upon Seller's release of
the Earnest Money and reimbursement to Buyer for all actual
costs and expenses incurred by Buyer…; or (3) pursue
any other remedy and damages available at law or in equity.
If Buyer defaults, Seller may (1) specifically enforce this
Contract and recover damages suffered by Seller as a result
of the delay in the sale of the Property; (2) terminate this
contract by Notice to Buyer, and … retain the Earnest
Money as liquidated damages and Seller's sole remedy
…; or (3) pursue any other remedy and damages
available at law or in equity.
December 2011, Harris informed Rehma-Boulch that he had lost
$250, 000 in an unrelated business deal, that his daughter
was going to have a baby, and that ROH Farms was not going to
close on the Cooks' real estate. Rehma-Boulch relayed
this information to Bremer, who then relayed the information
to the Cooks. The Cooks told Bremer that it was acceptable
and they would let ROH Farms out of the contracts.
reliance on being informed by Bremer that ROH Farms was not
going to close on their property, the Cooks took several
actions. On or about January 1, 2012 the Cooks leased the
farm property for the 2012 crop year to Stephen Cook
("Stephen"), who is a first cousin of Richard and
had previously rented the farm property for row crops. The
Cooks also cancelled plans for the construction of a new
residence, for which two builders were in the process of
preparing bids. The Cooks terminated their relationship with
a different realtor who was helping them locate a rental
property which they could live in until their new home was
constructed. Further, the Cooks made a verbal agreement to
sell the farm property, excluding their residence and five
surrounding acres, to Stephen for the same net price they had
negotiated with ROH Farms.
approximately two months following the verbal notice to the
Cooks regarding Harris's statement that ROH Farms would
not purchase the property, Rehma-Boulch and Bremer made
numerous efforts to reach Harris by phone, email, fax, and
personal visits to his office. All these attempts to reach
Harris were unsuccessful. Bremer then sent Harris a certified
letter dated January 31, 2012 detailing her and
Rehma-Boulch's attempts to reach ...