Court of Appeals of Missouri, Western District, First Division
from the Circuit Court of Boone County The Honorable Kimberly
J. Shaw, Judge
Cynthia L. Martin, P.J., and Victor C. Howard and Alok Ahuja,
Commercial Realty, Inc. and Mel Zelenak (collectively
"Maly") sued Aegis Investment Group II, LLC and
Jack Maher Sr. (collectively "Aegis") in the
Circuit Court of Boone County. Maly alleged that it was
entitled to a real-estate commission related to Aegis'
sale of a piece of commercial property in Columbia. The
circuit court entered judgment for Aegis following a bench
trial. Maly appeals. It argues that the judgment is not
supported by substantial evidence and is against the weight
of the evidence. Maly also argues that the circuit court
should have placed the burden on Aegis to prove that
negotiations with the property's ultimate purchaser were
abandoned after Maly introduced Aegis to that purchaser. We
is a real-estate broker with Maly in Columbia. Zelenak had
worked on previous real-estate transactions with Anup
Thakkar, a local businessperson who owned multiple
Dunkin' Donuts franchise stores. In 2014, Thakkar was
looking for a small parcel of property on the north side of
Columbia on which to construct a new Dunkin' Donuts
franchise store. Thakkar asked Zelenak about property at the
southwest corner of Rangeline Street and Blue Ridge Road (the
"Blue Ridge property").
Blue Ridge property was a 40-acre tract of land owned by
Aegis. Maher was one of Aegis' members. He was also a
licensed real estate broker. Maher's company had a
listing agreement with Aegis for the Blue Ridge property.
was aware that Maher was part of the group which owned the
Blue Ridge property, and he knew Maher from prior dealings.
In early November 2014, Zelenak contacted Maher about the
Blue Ridge property, and arranged a meeting. On November 12,
2014, Maher, Zelenak, Thakkar, and one of Thakkar's
business partners met at Maher's office to discuss the
property. The meeting was brief. At trial, Maher described
the meeting as simply "a meet-and-greet," because
"Thakkar wanted to buy a lot [in the Blue Ridge
property], and I said I wasn't interested." Maher
was not interested in selling because he wanted to ground
lease the property. He testified that Aegis' plan for the
property was "to hopefully get a grocer to develop it
and retain ownership, so that you retain income forever,
no[t] just one-time sales." Thakkar testified of the
November 2014 meeting: "[v]ery fast, I learned that Mr.
Maher and his group were not interested in selling the
property or . . . part of it."
the meeting Thakkar sent an email to an engineer with whom he
worked, with copies to Maher and Zelenak. Thakkar stated that
he and his partners were interested in buying a portion of
the Blue Ridge property and asked the engineer to determine
how much land would be necessary to fit his planned
Dunkin' Donuts store.
next day, Maher sent an email to the engineer stating that
the discussion with Thakkar about the Blue Ridge property was
preliminary, and that there was no deal. Maher also sent an
email to another member of Aegis, letting him know about his
meeting with Thakkar. In the email, Maher wrote that he
informed Thakkar that Aegis had not set a price for sale of
the property, and that it preferred to ground lease the
property. In his response, Maher's fellow member asked
whether it was "smart to give up a corner for a ¾
acre lot," given that Aegis was hoping to attract a
"big box" store to the site.
December 3, 2014, Maher sent Thakkar, Zelenak, and the
engineer an email, stating that he and the engineer had
discussed the property and that Maher was not sure that they
had the access that Thakkar desired on "a .75 acre hard
corner location." In the email, Maher nevertheless
stated that Aegis would "look at any possibility."
testified that, by the middle of December 2014, it was clear
that Aegis' and Thakkar's interests were "not
aligned": "it was quite clear that they just were
not interested in selling any portion at that point, and . .
. I was not interested in . . . doing a land lease or a
build-to-suit at that time."
testified that, after December 2014, he did not have any
further contact with Zelenak regarding the Blue Ridge
property. Zelenak admitted that he had "no direct
involvement" concerning the sale of the Blue Ridge
property after December 2014. Specifically, Zelenak
acknowledged that he had no involvement with the property in
2015 or 2016, or in the negotiations that culminated in the
2017 sale of the property to Thakkar's group. Zelenak
did, however, send Thakkar information regarding
other properties on the north side of Columbia for a
possible Dunkin' Donuts location.
testified at trial that he did not have any contact with
Maher in 2015. In 2016, Thakkar happened to have a
conversation with another member of Aegis, who was apparently
unaware of the prior communications between Thakkar and Maher
in late 2014. Thakkar testified:
So, as I recall, I was at Providence Road Dunkin' Donuts,
happened to run into a dear friend of mine, Mr. Sanjeev
Ravipudi. He . . . was a doctor here in town. And we just
happened to have a . . . casual conversation, and part of
that conversation led to what my plans were, as far as where
we're going. And I expressed that, you know, just looking
at, you know, some properties over in the north side. . . .
[A]nd he happened to mention that he had a property over on
the north side . . . and . . . he wanted me to check it out
so [I] asked a little more information on that.
He gave me, and I said, "Oh, yes, that's a property
that, you know, I looked at about a year ago or so and - and