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Kjerstad Realty, Inc. v. Bootjack Ranch

October 28, 2009

KJERSTAD REALTY, INC., A SOUTH DAKOTA CORPORATION, PLAINTIFF AND APPELLEE,
v.
BOOTJACK RANCH, INC., A SOUTH DAKOTA CORPORATION, DEFENDANT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE MERTON B. TICE, JR. Judge.

The opinion of the court was delivered by: Meierhenry, Justice

CONSIDERED ON BRIEFS ON AUGUST 24, 2009

[¶1.] Bootjack Ranch, Inc. appeals the circuit court's grant of summary judgment in favor of Kjerstad Realty, Inc. for a claimed sales commission associated with the sale of Bootjack Ranch. We reverse and remand for trial.

BACKGROUND

[¶2.] The president of Bootjack Ranch, Patricia Hanson, entered into an exclusive listing agreement with Jerald Kjerstad on behalf of Kjerstad Realty to sell Bootjack Ranch. The listing agreement was for one year from April 7, 2006, to April 7, 2007. The selling price for the 6,365 acre ranch located in Meade and Pennington Counties was listed at $3,658,000 cash. The agreement provided that Kjerstad Realty would receive a 5% commission if the property sold during the effective dates of the contract or "[i]f . . . within 180 days after the expiration of this contract, a sale is made to any person to whom the property has been shown during the listing period." Originally, Jerald Kjerstad was the responsible broker for the agreement and had personally negotiated its terms with Hanson. Because of Jerald Kjerstad's death on October 15, 2006, another realtor in Kjerstad Realty, Ron Ensz, became the agent for Hanson. On January 5, 2007, Hanson and Ensz amended the listing agreement to lower the listing price to $3,100,000.

[¶3.] Later in January, Hanson informed Ensz that she intended to withdraw Bootjack Ranch from the market. On January 26, 2007, Ensz sent Hanson a letter acknowledging the removal of the ranch from the market. On March 13, 2007, Hanson's attorney notified Ensz in writing to verify that the listing agreement was terminated and that the 180-day tail provision only applied to two interested buyers to whom Ensz showed the ranch. Ensz responded that he disagreed and that the 180-day tail provision applied to additional potential buyers, including Patrick Trask.

[¶4.] Approximately five months after Hanson terminated the listing agreement with Kjerstad Realty, Hanson sold the ranch to Trask for $3,099,755. Thereafter, Kjerstad Realty initiated a claim for breach of the exclusive listing agreement to recover the 5% commission, sales tax, and prejudgment interest. Kjerstad Realty filed a motion for summary judgment. The circuit court granted Kjerstad Realty's motion for summary judgment against Bootjack Ranch, awarding Kjerstad Realty $161,187 in commission and sales tax and $23,232 in prejudgment interest, plus $678 in costs. Bootjack Ranch appeals, raising the following issue:

Whether a question of material fact exists to preclude a finding that Kjerstad Realty was entitled to a commission per the listing agreement.

STANDARD OF REVIEW

[¶5.] This Court's standard of review for summary judgment actions is well-settled. "'We will affirm the trial court's grant or denial of a motion for summary judgment when no genuine issues of material fact exist, and the legal questions have been correctly decided.'" Arch v. Mid-Dakota Rural Water Sys., 2008 SD 122, ¶7, 759 NW2d 280, 282 (quoting A-G-E Corp. v. State, 2006 SD 66, ¶13, 719 NW2d 780, 785). When determining if a material fact exists, a court must view the facts in the light most favorable to the nonmoving party. Dakota Plains AG Ctr., LLC. v. Smithey, 2009 SD 78, ¶14, 772 NW2d 170, 178. We review questions of law, such as the interpretation of a contract, de novo. Arch

, 2008 SD 66, ¶7, 759 NW2d at 282 (citing A-G-E Corp

., 2006 SD 66, ¶15, 719 NW2d at 786).

ANALYSIS

Written Listing Agreement Supersedes Oral ...


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