MARLEN J. LASKA and PATRICIA A. LASKA, Plaintiffs and Appellees,
JERRY BARR, PAT COLE and GERRIT JUFFER, Defendants and Appellants
Considered on Briefs January 11, 2016.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT CHARLES MIX COUNTY, SOUTH DAKOTA. THE HONORABLE PATRICK SMITH, Judge.
TIMOTHY R. WHALEN, Lake Andes, South Dakota, Attorney for plaintiffs and appellees.
THOMAS H. FRIEBERG, Frieberg, Nelson & Ask, LLP, Beresford, South Dakota, and MEGHANN M. JOYCE, Boyce Law Firm, LLP, Sioux Falls, South Dakota, Attorneys for defendants and appellants.
SEVERSON, Justice. GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN, Justices, concur.
[¶1] Marlen and Patricia Laska entered into a contract, involving real property owned by them, with Jerry Barr, Pat Cole, and Gerrit Juffer (the Barr Partners). The Barr Partners, believing the contract created an option, attempted to buy the property listed in the contract. The Laskas did not want to sell and brought this action seeking to declare the contract void; the Barr Partners counterclaimed, seeking specific performance of the agreement. The circuit court determined that the contract granted the Barr Partners a right of first refusal and limited their rights under the contract, determining that the preemptive right expired at the later death of Marlen or Patricia. On appeal, the Barr Partners allege that the contract creates both an option and a right of first refusal. Through notice of review, the Laskas contend that the agreement is void for lack of a definite time within which the parties may exercise rights under the contract and for lack of mutual assent. We reverse and remand.
[¶2] The Laskas first sold real property to the Barr Partners in 2000. The sale is referred to as Juffer 1 by the parties and circuit court. At the time of closing on Juffer 1, the parties entered into an agreement entitled First Right of Refusal, which granted the Barr Partners certain rights to purchase additional land that is adjacent to Juffer 1. In late 2004, the Barr Partners bought the real property listed in the First Right of Refusal, referred to as Juffer 2. However, they paid $500 more per acre than the price listed in the agreement. As part of the Juffer 2 sale, the parties entered into another agreement, again entitled First Right of Refusal. The second agreement is substantially similar to the initial First Right of Refusal that the parties executed and involves real property that is adjacent to the Juffer 2 property. The meaning of the second agreement is the main dispute of this case.
[¶3] The " First Right of Refusal" in dispute provides in relevant parts:
In consideration of the receipt of One dollar ($1.00) and other good and valuable consideration paid to Marlin [sic] and Patricia Laska . . . SELLER, receipt of which is hereby acknowledged, SELLER hereby gives and grants to Jerry Barr or, Pat Cole or, Gerrit Juffer, BUYER, their heirs and assigns, a right of first refusal to purchase the real property owned by SELLER situated in Charles Mix County, South Dakota, and more particularly described as follows:
. . . .
Section IPrice and Terms of Payment
The purchase price for the property shall be Ten thousand Dollars Five hundred and no/100 ($10,500) per acre purchased pursuant to this right of first refusal, or portion thereof Upon exercise of this right of first refusal by BUYER as provided for herein, BUYER shall pay ...