## Missouri Court of Appeals Southern District Division Two

TRI-LAKES TITLE & ESCROW, LLC, ) ) Plaintiff, ) ) vs. ) No. SD33110 ) MORRIS GROUP, INC., ) Filed September 30 , 2014 ) Defendant-Respondent, ) ) and ) ) KILIMANJARO, LLC, ) ) Defendant-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY

Honorable Mark Orr, Circuit Judge

AFFIRMED AND REMANDED WITH DIRECTIONS Kilimanjaro, LLC (“Kilimanjaro”), appeals the trial court’s judgment in favor of Morris Group, Inc. (“Morris Group”). Kilimanjaro c laims that the trial court erred in its interpretation of the effective date of a contract between the two parties. Because Kilimanjaro premises its claim upon a definition of “effective date” that never became part of the contract between the parties, we affirm . We remand the case to the trial court for an evidentiary hearing and entry of judgment on Morris Group’s motion for attorney fees on appeal.2 Facts and Procedural History This case began as an interpleader action by Tri-La kes Title & Escrow, LLC, to determine the rights to certain earnest money held in escrow pursuant to an agreement between Kilimanjaro and Morris Group. In 2008, Mor ris Group owned the Quality Inn Motel and was attempting to sell it. On March 26, 2008, Kilimanjaro offered to buy the motel for $5,100,000. The offer contained a provis ion stating that the effective date of the contract would be “the date of final acceptance hereto, as indicated by the date adjacent to the signature of the last party to sign this Contract or the Counter Offer attached hereto (if any).” The offer specified tha t Kilimanjaro would provide $51,000 in earnest money and contemplated that enforceability of the entire contract was contingent on Kilimanjaro being able to obtain financing throu gh SBA. It also provided Kilimanjaro with forty-five days from the effective date to obt ain such financing. In the event that Kilimanjaro tried, in good faith, to obtain such fi nancing and was unable to do so, the offer provided that Kilimanjaro must give notificat ion to Morris Group by either sending Morris Group a statement from the lender that turne d them down or by notarized affidavit. Failure to timely do so within forty-fi ve days after the effective date would waive Kilimanjaro’s right to recover the earnest mo ney. The offer was memorialized in a

written document entitled “Commercial and Industria l Real Estate Contract” and that

referenced itself within as the “Contract.” While there were places on this document for Morris Group to accept or reject it, Morris Group s igned neither, but initialed and

checked the statement that “Seller . . . counter of fers (Counter Offer Form MSC-2040, which amends the terms of this Contract, is attache d and incorporated into this Contract).”3 Morris Group’s Counter Offer was memorialized on Ma rch 31, 2008, in a form

MSC-2040 document entitled “Counter Offer #One” tha t stated, “Only the terms contained in this Counter Offer, together with the remaining unchanged terms of the Contract[ 1 ] (including any other addenda or riders attached t hereto), constitute the new

offer.” 2 The Counter Offer designated a purchase price of $5,350,000. Because the motel was already subject to an existing sale contr act to another party, the Counter Offer conditioned Kilimanjaro’s purchase upon Kilimanjaro assuming first position as a buyer if the existing contract was not consummated with a sale of the motel. The Counter Offer further specified, among other changes not relevant to this appeal, that the “Effective date will be date Buyer is notified they are in 1 st position.” Kilimanjaro signed the “Acceptance . . . of Counter Offer” provision on th is form on April 4, 2008, agreeing “to the modification(s) or additional term(s) and condi tion(s) in the Counter Offer” and accepting “the Contract, as modified by this Counte r Offer[.]” Kilimanjaro was notified that it had moved to first position as Buyer on May 7, 2008. An “amendment” to the contract was signed by the parties on May 12, 2008, expressly stating that the “effective date” of the contract would be May 7, 2008, because the “Contract has been moved from ‘Back up Offer’ t o first position[.]” Kilimanjaro and Morris Group “amended” the contract again on June 1 3, 2008, to lower the price to $5,200,000, due to costs to update the motel. Kilimanjaro was unable to obtain financing, and the deal ultimately fell though. Bo th parties claimed ownership of the earnest money held in escrow.

1 Neither party disputes that this term references t he document whereby Kilimanjaro made its initial of fer to purchase the motel. 2 For clarity, we will refer to the first offer by K ilimanjaro as the “Initial Offer,” even though the document refers to itself and subsequent documents refer to it as the “Contract.” We will refer to the respond ing offer made by Morris Group as the “Counter Offer.”4 At trial, Kilimanjaro argued that the effective dat e was to be determined by the date of the last “amendment,” June 13, in accord wi th the definition of “effective date” set forth in its Initial Offer. In contrast, Morri s Group argued that the effective date was May 7, as expressly stated in the first “amendment” and in accord with the definition set

forth in its Counter Offer. The trial court found that the effective date of the contract was May 7 and, therefore, Kilimanjaro had until June 21 to obtain financing or advise Morris Group of its inability to do so. Because Kilimanja ro did not do so and did not tender the purchase price at closing, the trial court determin ed that Morris Group had superior rights to the earnest money. Judgment was entered for Mor ris Group on October 3, 2013. Kilimanjaro filed a Motion to Amend on October 29, 2013. That motion was denied. This appeal followed. 3

Standard of Review The standard of review for a court-tried case is go verned by Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment of the trial court will be affirmed unless insufficient evidence supports it, it is aga inst the weight of the evidence, or it erroneously declares or applies the law. Id

.

3 Morris Group claims that judgment became final in this case on December 16, 2013, the date Morris Group asserts Kilimanjaro’s after-trial motion was denied, and thus Kilimanjaro’s Notice of Appeal, fi led on January 3, 2014, was untimely because it was fil ed more than ten days after the judgment became fin al. See Rule 81.04(a). An order denying Kilimanjaro’s after-trial motion, however, was not entered on December 16. The trial court specifically found: “The court notes and agrees that the docket entry o f 12/16/014 [sic] was not entered into Case.net or se nt out to the Attorney on that date – Judge Orr, tm .” Judgment becomes final at the expiration of thirty days after its entry if no timely authorized after- trial motion is filed. Rule 81.05(a)(1). If a party tim ely files an authorized after-trial motion, the jud gment becomes final at the earlier of ninety days from th e date the last timely motion was filed or the date of ruling of the last motion to be ruled. Rule 81.05( a)(2). Because the record does not reflect a rulin g on Kilimanjaro’s after-trial motion was entered on Dec ember 16, 2013, or on any other date, judgment beca me final in this case ninety days from the date the la st timely motion was filed. Kilimanjaro filed its Motion to Amend on October 29, 2013. Judgment thus became fi nal ninety days later on January 28, 2014. Kilimanjaro’s Notice of Appeal was not untimely but rather premature and we consider it filed immediat ely after the time the judgment becomes final. Rule 81 .05(b). Rule references are to Missouri Court Rules (2014).5 Discussion Kilimanjaro contends that a plain reading of the co ntract would include the last “amendment” as part and parcel of the contract such that the effective date is the date of the very last signature as determined by the defini tion of “effective date” set forth in its

Initial Offer. Because the definition of “effectiv e date” set forth in the Initial Offer did not become part of the contract between the parties , Kilimanjaro’s argument fails. Negotiations or preliminary steps toward a contract do not constitute a contract. Gateway Exteriors, Inc. v. Suntide Homes, Inc ., 882 S.W.2d 275, 279 (Mo.App. 1994) (citing Cervantes v. Ryan , 799 S.W.2d 111, 116 (Mo.App. 1990)). A contract can only exist when there is an offer and a mirror-image acc eptance. Pride v. Lewis , 179 S.W.3d 375, 379 (Mo.App. 2005). “Any acceptance that incl udes new or variant terms from the offer presented amounts to a counter-offer and a re jection of the original offer.” Id. (citing Tirmenstein v. Cent. States Basement & Found. Repai r, Inc. , 148 S.W.3d 849, 851 (Mo.App. 2004), and Tower Props. Co. v. Allen , 33 S.W.3d 684, 688 (Mo.App. 2000)). Here, Morris Group responded to Kilimanjaro’s Initi al Offer in a document labeled “Counter Offer # One.” Morris Group varied certain terms with this document, such as the purchase price and the definition of “e ffective date,” among others. Because this response was not a mirror image of the Initial Offer, it was a rejection of the Initial Offer and became a separate offer. Both parties si gned this document indicating their intent to be bound by the terms in the Counter Offe r and thus acceptance of the terms in the Counter Offer. Those terms incorporated the pr ovisions of the Initial Offer subject to the specified changes. Kilimanjaro signed the Coun ter Offer stating acceptance of those6

changes. Any conflicting provisions in the Initial Offer did not become a part of the contract between the parties. In other words, because the Counter Offer stated th at the effective date would be the date that Kilimanjaro moved to first position, the conflicting definition in the Initial Offer never became a part of the contract between t he parties. Thus, Kilimanjaro cannot rely on the definition of “effective date” containe d in its Initial Offer. Without reliance on that definition, Kilimanjaro’s argument that the parties understood the date of the final

“amendment” to be the effective date is without mer it. Kilimanjaro’s point is denied. Motions for Attorney Fees on Appeal Both parties have filed motions for attorney fees o n appeal stipulating that the contract between them provides for an award of reas onable attorney fees to the prevailing party on appeal. Accordingly, Morris Group’s motio n is sustained, and Kilimanjaro’s

motion is denied. While we have the authority and expertise “‘to fix the amount of attorney fees on appeal . . ..the trial court is in a much better po sition to hear evidence and argument on

this issue and make a determination of the reasonab leness of the requested fees[.]’” Timberland Forest Products, Inc. v. Franks , 419 S.W.3d 806, 812 (Mo.App. 2013) (quoting SE Co–Op Serv. Co. v. Hampton , 263 S.W.3d 689, 696-97 (Mo.App. 2008)). Thus, we prefer to defer our authority to the trial court. See id . On remand, the trial court should hold a hearing to determine a reasonab le attorney fee on appeal as requested by Morris Group and enter judgment accordingly.7 Decision The trial court’s judgment is affirmed. The case is remanded to the trial court for an evidentiary hearing and entry of judgment on Mor ris Group’s motion for attorney fees on appeal.

GARY W. LYNCH, J. - Opinion author NANCY STEFFEN RAHMEYER, J. - concurs DON E. BURRELL, J. - concurs