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.
J. Minch, for defendant and appellee Gary G. Hoffman.
W.Varland (argued), Mark J. Heley (on brief), and Seth A.
Thompson (appeared), for defendant and appellee Dabbert
Custom Homes, LLC.
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
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
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.
underlined sentence above the printed paragraph was
handwritten and initialed by Hoffman and Constellation's
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,
(1a) Because this is a 1031 Exchange, the said closing shall
be on or before October 13, 2014.
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 ...