Geier v. Simon

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NOT DESIGNATED FOR PUBLICATION

No. 117,400

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

LONNY R. GEIER,
Appellee,

v.

GERALD SIMON, Trustee of THE GERALD AND
ROSEMARY SIMON REVOCABLE TRUST, and
JERRY SIMON, Individually,
Appellants.


MEMORANDUM OPINION

Appeal from Crawford District Court; OLIVER KENT LYNCH, judge. Opinion filed February 9,
2018. Reversed.

John G. Mazurek, of The Mazurek Law Office, LLC, of Pittsburg, for appellants.

Sara S. Beezley, of Beezley Law, LLC, of Girard, for appellee.

Before POWELL, P.J., STANDRIDGE, J., and STUTZMAN, S.J.

PER CURIAM: Gerald Simon appeals the district court's decision in a dispute
arising from his purchase of real estate from Lonny Geier. The district court found the
parties' agreements gave Geier broad hunting rights on the land he sold to Simon. For
reasons explained below, we disagree with the district court and reverse.





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FACTS AND PROCEDURAL BACKGROUND

Geier and Simon signed a three-page, typed document titled Real Estate Sale
Agreement (Sale Agreement), dated February 6, 2014. The Sale Agreement listed Geier
as the seller of an 80-acre tract—less a specified portion that the parties apparently
considered to be somewhat less than 12 acres—to the Gerald and Rosemary Simon
Revocable Trust for $116,281. Simon signed the Sale Agreement as a trustee of the Trust.
The Sale Agreement required Geier to provide Simon an owner's title policy "subject to
the usual reservations and exceptions." At closing, upon Simon's payment of the balance
of the purchase price, Geier committed to deliver "a General Warranty Deed conveying
the property" to Simon.

On the back of the typed Sale Agreement are several handwritten calculations and
one statement, followed by the signatures of Geier and Simon (who this time signed with
no designated capacity). The top part of this handwritten portion appears to mirror the
terms shown in the typed document. First appears a calculation that matches the purchase
price, determined as the product of 68.2 acres sold at $1,705 per acre. Next are the
dimensions and location of the part of the tract that was not being sold, with the
additional notation "10% Down Bals At Closing" [sic].

The handwritten part then addresses topics not contained in the Sale Agreement,
under the heading Rent agreement (Rent Agreement). Below that is a further calculation,
"60 Acres x 65.00 = $3900.00 Due on or before Jan 1," followed by "Lonny Geier
Retains Farming and Hunting Rights As long As Rent is paid on or before Due date"
[sic]. Geier's and Simon's signatures followed as the last things written on that page.

Geier filed suit against Simon on February 20, 2015, asking for a restraining order
and a final order granting Geier "the right to use the land as the farming rights and
hunting rights as long as he pays the rent on or before January 1st of each year."
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Alternatively, Geier sought rescission of the sale or damages. Simon denied Geier was
entitled to an injunction or any other relief.

The dispute went to trial on January 29, 2016. At the conclusion of the hearing, the
district court gave the parties leave to file written arguments and took the case under
advisement for a written decision. After considering everything before it, the district
court found the handwriting on the back of the Sale Agreement should be construed as
part of the agreement since the word "retains" was referred to in paragraph 3 of the Sale
Agreement and also appeared in the handwriting on the back. The court concluded Geier
"'retains' the farming and hunting rights as long as he complies with the payment terms
and has the right to assign or subcontract those rights if he so desires."

At a hearing on January 30, 2017, on an objection to the journal entry and a
posttrial motion, the parties told the district court they had narrowed their dispute to the
question of hunting rights. The court stated the intent of its order was that Geier retained
what he had before the contract and before the contract he had exclusive hunting and
farming rights. Therefore, that is what he retained. Since Geier had exclusive hunting and
farming rights to the land, the district court reasoned he could charge third parties to go
on the land and hunt.

Simon timely appeals.

ANALYSIS

Simon presents a single claim of error. He contends the district court's
interpretation of the term "retains" as it was used in the handwriting on the back of the
Sale Agreement effectively added the word "exclusive" to Geier's rights, altering the
agreement the parties made and unreasonably expanding Geier's hunting rights.

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Our review of the interpretation and legal effect of written instruments is unlimited
and we are not bound by a lower court's interpretation of those instruments. Prairie Land
Elec. Co-op v. Kansas Elec. Power Co-op, 299 Kan. 360, 366, 323 P.3d 1270 (2014).
"'The primary rule for interpreting written contracts is to ascertain the parties' intent. If
the terms of the contract are clear, the intent of the parties is to be determined from the
language of the contract without applying rules of construction.' [Citations omitted.]"
Stechschulte v. Jennings, 297 Kan. 2, 15, 298 P.3d 1083 (2013).

The district court's threshold decision was the finding that "the handwriting should
be construed as part of the parties' agreement due to the fact that the term 'retains' is
referred to in paragraph three (3) of the printed contract and in the hand written
provisions on the fourth page."

Paragraph three of the Sale Agreement called for Geier to grant Simon an access
easement over a specified tract, which is where the term "retains"—actually, the variant
"retained"—appeared in the description as follows:

"The retained 440 foot strip of the East 1120 feet of the E1/2 of the NW1/4 of
Section 22, Township 28, Range 23, until buyer has completed a low water crossing over
that portion of the North 440 feet not retained by seller." (Emphasis added).

The term does also appear in the handwriting on the back of the Sale Agreement,
which the parties agree was added by Geier, in the addition that stated:

"Lonny Geier Retains Farming and Hunting Rights As long As Rent is paid on or before
Due date."

Although it is true that a version of the word retain is used in both places, the
words are wholly disconnected in their use and context. The two unrelated appearances of
the word provide no rationale to support the district court's finding that the handwritten
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addition was intended to be a modification of the Sale Agreement. In that respect, we find
the district court erred.

While that second handwritten use of the word "retains" is not part of a
modification of the Sale Agreement, it is not without significance for Geier's claim of
hunting rights. Immediately above Geier's handwritten addition were the Rent Agreement
provisions Geier claims Simon wrote out, setting the bare terms for Geier's cash lease of
the farmed part of the land he sold to Simon. Based on the clear meaning of those two
parts, we find they were intended to be construed together. Unlike the unrelated word
usage relied on by the district court, Geier directly tied continuation of his hunting rights
to his timely payment of rent, which we find expresses the intent to include that provision
as part of the Rent Agreement. Further, in his brief, Geier states he refused to sign a
separate written lease when Simon later presented it on the basis he already had an
agreement that included his hunting and farming rights.

There is no dispute that the Sale Agreement made no reference to hunting rights.
And although the deed from Geier to Simon is not part of the record, counsel confirmed
at argument that the deed reserved no hunting rights to Geier as an exception to an
otherwise complete conveyance of the described real estate. All of Geier's entitlement to
hunting rights, therefore, resides in the language he added to the Rent Agreement.

Geier claims that language he wrote into the Rent Agreement gave him hunting
rights equal in scope to those he enjoyed while he owned the property he sold to Simon.
Simon contends Geier's claim is unreasonably broad. The district court found that
language gave Geier "the exclusive rights to farm and hunt the land as long as . . . the rent
is paid by the first of the year," and that "[t]hese rights are exclusive and if [Geier]
desires, he can assign or subcontract and charge in the event he decides to allow third
parties to hunt the land."

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In its order, the district court made no finding of ambiguity that would have
allowed that court to consider any discussions, negotiations, or agreements outside the
language written into the contract. We agree with the district court's implicit finding that
there was no ambiguity in the Rent Agreement concerning hunting rights.

"A contract is ambiguous if it contains provisions or language of doubtful or
conflicting meaning. In determining whether ambiguity exists, the language of the
contract is to receive a fair, reasonable, and practical construction. Weber v. Tillman, 259
Kan. 457, 476, 913 P.2d 84 (1996). A reasonable construction of the contract is one that
makes the contract fair, customary, and such as prudent persons would intend. 259 Kan.
at 476." Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 324, 961 P.2d 1213
(1998).

In the absence of ambiguity, there is no requirement for rules of construction or
parol evidence.

"The parol evidence rule was plainly stated in Thurman v. Trim, 206 Kan. 118,
Syl. ¶ 2, 477 P.2d 579 (1970): 'When a contract is complete, unambiguous and free of
uncertainty, parol evidence of a prior or contemporaneous agreement or understanding,
tending to vary or substitute a new and different contract for the one evidenced by the
writing is inadmissible.'" Cude v. Tubular & Equipment Services, 53 Kan. App. 2d 287,
291, 388 P.3d 170 (2016).

Accordingly, we need not, and should not, consider the testimony taken by the district
court concerning the preliminary dealings of the parties as they arrived at their ultimate
agreement. The Rent Agreement may be interpreted from its own terms.

We find nothing in the plain language of Geier's addition to the Rent Agreement to
support the scope of hunting rights found by the district court. Geier and Simon did
contract for Geier to retain the right to hunt on the land, but that right is personal to Geier.
The Rent Agreement grants the right to hunt and farm to "Lonny Geier," conditioned on
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timely payment of rent. Neither exclusivity, nor the right to assign or subcontract Geier's
right to hunt, nor the right to transform it into a commercial operation by charging third
parties to hunt is included in the document. Had Geier wanted any or all of those
extended rights included, he could have written them into the agreement, subject to
Simon's concurrence.

Geier asks us—based on the word "retains"—to accept an interpretation of the
Rent Agreement that by inference alone gives him enjoyment of the land with respect to
hunting rights that is commensurate with complete ownership when no such reservation
was included in the Sale Agreement or deed. Such an expansive inference would not
result in a construction of the agreement that would be "fair, customary, and such as
prudent persons would intend." Weber v. Tillman, 259 Kan. 457, 476, 913 P.2d 84
(1996).

Geier had the full right to use the land for any and all hunting purposes before he
sold to Simon. When he sold, he reserved none of those rights in the Sale Agreement or
deed but wrote into the separate lease a provision allowing him to personally continue to
hunt if the lease payments are timely made. He did not in that way take back rights equal
to those he gave up in the Sale Agreement and deed.

Reversed.