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Paul Ehlen v. John M. Melvin and Lynndee Melvin

November 27, 2012

PAUL EHLEN,
PLAINTIFF AND APPELLANT
v.
JOHN M. MELVIN AND LYNNDEE MELVIN,
DEFENDANTS AND APPELLEES



Appeal from the District Court of McIntosh County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

N.D. Supreme CourtEhlen v. Melvin,

2012 ND 246

This opinion is subject to petition for rehearing. [Go to Documents]

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AFFIRMED.

Opinion of the Court by Kapsner, Justice.

[¶1] Paul Ehlen appeals from a judgment dismissing his action against John M. Melvin and LynnDee Melvin ("Melvins") to enforce a purchase agreement, from a judgment for costs, and from an amended judgment. We affirm, concluding the district court's finding the parties did not mutually consent to the purchase agreement is not clearly erroneous.

I

[¶2] The Melvins own real property in McIntosh County. In February 2011, Kevin Schmitz contacted the Melvins and informed them Ehlen was interested in purchasing the property. Schmitz was interested in leasing some property for grazing his cattle, and he planned to lease the property from Ehlen if Ehlen purchased it from the Melvins.

[¶3] On February 16, 2011, Ehlen sent the Melvins a document entitled "Purchase Agreement," offering the Melvins $850,000 for the property. The agreement provided the closing of the sale of the property would occur on or before March 1, 2011, and the total amount for the purchase would be paid on or before the closing date. Ehlen also attached a one-page document entitled "Amendment to Purchase Agreement," which itemized a list of additional terms. Ehlen had signed the documents.

[¶4] On February 18, 2011, the Melvins reviewed Ehlen's offer with their attorney. The Melvins modified some of the terms on the agreement, including the correct spelling of LynnDee Melvin's name and the legal description of the property. The Melvins also added multiple terms to the purchase agreement and the amendment, including that the property was being sold "as is," that the mineral rights conveyed by them were limited to only those rights they owned, and that the land was subject to a federal wetland easement and an agricultural lease. The parties had not previously negotiated the added terms. The Melvins hand-wrote all of the changes on the documents they received from Ehlen and they initialed each change. The Melvins signed the documents and sent them back to Ehlen.

[¶5] Ehlen did not contact the Melvins after they sent the documents back to him. On February 24, 2011, Schmitz told the Melvins the deal was off and Ehlen was concerned about some of the modified terms. Schmitz contacted the Melvins later and informed them "the deal was back on." The Melvins did not have any contact with Ehlen. The Melvins contacted the title company on March 1, 2011, and learned Ehlen had not paid the money for the property or initialed the amendments the Melvins made. The Melvins' attorney sent Ehlen a letter dated March 2, 2011, to confirm that the "transaction started and contemplated between [Ehlen] and [the Melvins] is hereby terminated."

[ΒΆ6] Ehlen sued the Melvins to enforce the "Purchase Agreement," alleging it was a binding and enforceable contract. After a court trial, the district court ruled there was no contract, the purchase agreement and the amendment to the purchase agreement constituted an offer to purchase property from the Melvins, the Melvins made a counteroffer in writing, and Ehlen failed to accept the counteroffer. The court ordered the dismissal of Ehlen's claims with prejudice and awarded the Melvins the costs of litigation and attorney fees. A judgment was subsequently entered. The Melvins filed an affidavit for costs and attorney fees and Ehlen objected. The court entered an order awarding the Melvins $2,890.40 in costs but ruled the award of ...


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