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Constellation Development, LLC v. Western Trust Co.

Supreme Court of North Dakota

July 7, 2016

Constellation Development, LLC, Plaintiff and Appellant
v.
Western Trust Company, Gary G. Hoffman, Trustee, and Dabbert Custom Homes, LLC, Defendants and Appellees

         Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.

          Michael L. Gust (argued) and Joshua M. Feneis (appeared), for plaintiff and appellant.

          Roger J. Minch, for defendant and appellee Gary G. Hoffman.

          Brian W.Varland (argued), Mark J. Heley (on brief), and Seth A. Thompson (appeared), for defendant and appellee Dabbert Custom Homes, LLC.

          OPINION

          Sandstrom, Justice.

         [¶ 1] Constellation Development, LLC, appeals from a judgment dismissing its claims against Western Trust Company and its trustee, Gary Hoffman (collectively "Western"), for breach of contract and equitable and promissory estoppel, and against Dabbert Custom Homes, LLC, for tortious interference with a business contract. Because we conclude the district court did not err in ruling as a matter of law Western did not breach any agreement it had with Constellation, we affirm the judgment.

         I

         [¶ 2] On September 30, 2013, Constellation agreed in writing to purchase about 24 acres of land in Cass County from Western, with the remaining balance to be paid on October 14, 2013. The agreement also provided:

This has changed to a three-year purchase option to run concurrently
FIRST RIGHT OF REFUSAL: The Seller will grant and give to the Buyer the First Right of Refusal for 5 years on the additional 62 acres as shown on Exhibit "B" attached to this Agreement should the Seller decide to sell any more land. The purchase price in reference to the additional land will be at $18, 000.00 per acre if the Seller decides to sell additional land. If Seller decides to sell more land the Buyer will have 14 days to enter into a Purchase Agreement and 30 days to close the transaction or he will lose his First Right of Refusal.

         The underlined sentence above the printed paragraph was handwritten and initialed by Hoffman and Constellation's representative.

         [¶ 3] On August 26, 2014, Constellation's representative wrote a letter to Western stating: "Per the terms of our purchase agreement dated September 30, 2013-I wish to exercise my option to purchase the balance of real estate referenced in the agreement." On September 5, 2014, Constellation agreed in writing to purchase the additional property consisting of approximately 64 acres from Western:

The Purchser [sic] will therefore pay the sum of $1, 150, 992.00 (this price is determined by $18, 000.00 X 63.944 Acres) property is surveyed and the selling price will be: $1, 150, 992.00 for the 63.944 Acres; these are the following terms and conditions:
(1) A $2500.00 herewith is a non-refundable payment at the execution of this Agreement with the said check to be made payable to First Bank and Trust of Brookings, South Dakota who is the Seller's 1031 Exchanger. The remaining balance of $1, 148, 492.00 is to be paid on or before October 13, 2014.
(1a) Because this is a 1031 Exchange, the said closing shall be on or before October 13, 2014.

         Constellation gave Western two different checks for $2, 500, and each check was returned for insufficient funds. Constellation alleged that it offered Western a $2, 500 cashier's check on October 8 or 9, 2014, but Western refused it.

         [¶ 4] On October 9, 2014, Western sent Constellation a "Notice of Termination of Purchase ...


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