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Laska v. Barr

Supreme Court of South Dakota

January 24, 2018

MARLEN J. LASKA and PATRICIA A. LASKA, Plaintiffs and Appellees,
v.
JERRY BARR, PAT COLE and GERRIT JUFFER, Defendants and Appellants.

          CONSIDERED ON BRIEFS ON NOVEMBER 6, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT CHARLES MIX COUNTY, SOUTH DAKOTA THE HONORABLE PATRICK T. SMITH Judge

          TIMOTHY R. WHALEN Lake Andes, South Dakota Attorney for plaintiffs and appellees.

          RONALD A. PARSONS, JR. of Johnson Janklow Abdallah & Reiter, LLP Sioux Falls, South Dakota and THOMAS H. FRIEBERG of Frieberg, Nelson & Ask, LLP Beresford, South Dakota and MEGHANN M. JOYCE of Boyce Law Firm, LLP Sioux Falls, South Dakota Attorneys for defendants and appellants.

          WILBUR, Retired Justice

         [¶1.] In this second appeal regarding a contract dispute, we consider whether the circuit court erred on remand when it held that the contract created a right of first refusal and when it held that the contract was void as an unreasonable restraint against alienation. We affirm.

         Background

         [¶2.] Marlen and Patricia Laska executed multiple agreements with Jerry Barr, Pat Cole, and Gerrit Juffer (the Barr Partners) involving real estate in Charles Mix County, South Dakota. This appeal concerns an agreement entered into on February 3, 2005. The agreement is titled, "Right of First Refusal." It provides in relevant part:

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 I
Price and Terms of Payment
The purchase price for the property shall be Ten thousand Dollars Five hundred and no/100 ($10, 500.00) 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 SELLER the sum of One dollar, ($1.00) as and for down payment to be applied towards the total purchase price, which sum shall be non-refundable except should SELLER be unable to provide BUYER with marketable title as required herein.
Section II
Period of Right and Extension
Should SELLER receive a bona fide third party offer to purchase all or a portion of the above-described property, SELLER shall give BUYER written notice of the offer including its material terms within ten (10) days of receiving the offer. BUYER may then exercise this right of first refusal by giving SELLER written notice thereof within ten (10) days of receiving said notice by SELLER of said third party offer.

. . . .

Section VI
Assignment and ...

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