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Roh Farms, LLC v. Cook

Court of Appeals of Missouri, Western District, Special Division

April 16, 2019

ROH FARMS, LLC, Appellant,
v.
RICHARD W. COOK, JR. AND DAWN K. COOK, Respondents.

          Appeal 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.

          Gary D. Witt, Judge.

         ROH 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")[1] 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the trial court erred in not granting specific performance because any possible repudiation on the part of ROH Farms was retracted when the Cooks did not treat it as a material breach.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.

         Statement of Facts[2]

         ROH 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.

         After 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.

         Both the Farm Contract and the Residential Contract contained paragraphs titled "DEFAULT/REMEDIES" and stated in relevant part:

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.

         In late 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.

         In 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.

         For 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 ...


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