COURT OF APPEALS DECISION DATED AND FILED June 17, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from a judgment of the circuit court for
Before Dykman, P.J., Lundsten and Higginbotham, JJ.
¶1 DYKMAN, P.J. Randy Molini appeals from a judgment awarding Buswell Page Associates (BPA) specific performance of the real estate contract between Molini and BPA. Molini argues that the trial court erred in granting specific performance to BPA on summary judgment because (1) the trial court proceeded under the erroneous belief that it did not have discretion to deny specific performance; (2) there are genuine issues of material fact as to whether specific performance is equitable; (3) specific performance is not a proper remedy for a seller under a contract for the sale of real estate; (4) the doctrine of laches bars BPA’s action for specific performance; and (5) the contract terminated as a matter of law when the parties did not meet the closing date under the contract. We reject each of these contentions, and affirm.
Background
¶2 The following undisputed facts are taken from the summary judgment submissions. On May 24, 2007, Molini offered to purchase real estate from BPA for $300,000, using a standard WB-15 commercial offer to purchase form. BPA counter-offered to sell its property to Molini for $400,000. After a series of subsequent counter-offers by both Molini and BPA, the parties agreed on a purchase price of $375,000, with Molini providing $5,000 in earnest money.
¶3 The parties’ contract set a closing date of August 31, 2007. The contract also included a financing contingency, which provided:
This Offer is contingent upon buyer being able to obtain: …. a conventional … (fixed) … rate first mortgage loan commitment … within 60 days of acceptance of this offer….
[T]he annual rate of interest shall not exceed 6.5% ....
….
If financing is not available on the terms stated in this Offer (and Buyer has not already delivered an acceptable loan commitment for other financing to Seller), Buyer shall promptly deliver written notice to seller of same including copies of lender(s)’ rejection letter(s) or other evidence of unavailability…. Seller shall then have 10 days to give buyer written notice of Seller’s decision to finance this transaction on the same terms set forth in the financing contingency, and this Offer shall remain in full force and effect, with the time for closing extended accordingly. If Seller’s notice is not timely given, this Offer shall be null and void.
Additionally, the contract provided that “time is of the essence,” and therefore “failure to perform by the exact date or deadline is a breach of contract.” It also provided that:
If Buyer defaults, Seller may:
(1) sue for specific performance and request the earnest money as partial payment of the purchase price; or
(2) terminate the Offer and have the option to (a) request the earnest money as liquidated damages; or (b) direct Broker to return the earnest money and have the option to sue for actual damages.
¶4 The parties subsequently amended their contract to extend their closing date, setting a final closing date of October 17, 2007. The contract, as amended, required Molini to provide proof of financing by October 11, 2007.
¶5 On October 10, 2007, Molini informed BPA that he was unable to obtain financing under the terms of the contract, and sought a cancellation and release of the parties’ contract. Molini also demanded return of his $5,000 earnest money.
¶6 In a notice dated October 18, 2007, BPA stated that it was invoking its right to finance the sale, as provided under the parties’ contract.[1] BPA’s notice proposed a closing date of October 30, 2007.
¶7 Molini refused to close. On February 11, 2008, he brought this action against BPA to recover his earnest money. BPA counterclaimed on March 3, 2008, seeking specific performance of the contract. BPA moved for summary judgment, arguing that the undisputed facts established that Molini breached the contract by refusing to close upon BPA’s offer to finance the sale. Molini argued that BPA’s offer of financing was ineffective because it occurred after the parties’ closing date under their amended contract, and that there were disputed issues of fact as to whether specific performance was equitable in this case.
¶8 The trial court granted summary judgment to BPA. It explained:
The Court finds that the defendant’s demand for specific performance here is based upon a contractual remedy which is expressly provided under the terms of the parties’ contracts. In such matters, the Courts have come down on the side of following more along the lines of contractual law than equitable law.
It is my judgment that given the clear provision of this contract, which was the subject of apparently a great deal of ongoing negotiations, had a lengthy history of counteroffers, initial sales price was higher than the amount ultimately agreed to as a sales price, I find that when the defendant exercised defendant’s right to extend an opportunity for financing, that they had a time to do that, and the closing date did not terminate the contract.
The real estate provision—the real estate contract seems to state that if the contract has to be extended because the defendant makes an offer to provide financing, that the closing would be extended accordingly as well, and it seems to me that that’s a reasonable interpretation of all the terms of the contract; therefore, [the] Court finds that the defendant in this matter is entitled to summary judgment on defendant’s prayer for specific performance.
Molini appeals.
Standard of Review
¶9 We review a trial court’s decision on summary judgment de
novo, applying the same standard as the trial court. Sherry v. Salvo, 205
¶10 Whether
to grant or deny specific performance is within the trial court’s
discretion. See
Discussion
¶11 Molini argues that the trial court erred in granting summary
judgment to BPA because the trial court erroneously believed it did not have
any discretion in determining whether to grant or deny specific performance as
a remedy. Molini argues that, contrary
to the trial court’s holding, specific performance is an equitable remedy, and
therefore whether to grant specific performance is within the discretion of the
court. See Edlin v. Soderstrom, 83
¶12 In Anderson, 155
¶13 Here, the trial court relied on
¶14 We also reject Molini’s argument that the trial court erred in granting specific performance on summary judgment. Molini cites no law holding that a request for specific performance of a contract for the sale of land requires an evidentiary hearing. To the contrary, we recently upheld a summary judgment ordering specific performance of a contract for the sale of land in Ash Park, LLC v. Alexander & Bishop, Ltd., 2009 WI App 71, 317 Wis. 2d 772, 767 N.W.2d 614.
¶15 Next, Molini argues that there were disputed issues of material fact as to whether specific performance was equitable in this case before the trial court, precluding summary judgment. Specifically, Molini argues that there are disputes as to “the current value and condition of the building, whether the seller mitigated its damages, and the buyer’s intended usage,” as well as “the buyer’s current ability to pay.” Assuming that these would be proper factors for the trial court to consider in determining whether specific performance is an equitable remedy, Molini’s argument fails because he submitted nothing on summary judgment as to these issues.[3] Because the summary judgment record reveals no disputed issues of fact or inferences, summary judgment was appropriate.
¶16 Molini also argues that specific performance is not equitable
in this case because it was granted to the seller, BPA, and Molini contends
that specific performance of a contract for the sale of land is only equitable
if granted to the purchaser. See Anderson, 155
¶17 Molini then argues that even if specific performance is
available to BPA as a remedy, it is precluded from seeking that remedy in this
case by the doctrine of laches. See Bade v. Badger Mut. Ins. Co., 31
¶18 On the facts of this case, we have no basis to conclude that the doctrine of laches bars BPA’s action for specific performance. The parties set a closing date of October 17, 2007; Molini sued BPA for return of his earnest money on February 11, 2008, approximately four months after the parties did not timely close the contract. BPA counterclaimed on March 3, 2008, approximately one month after Molini filed suit and five months after the parties failed to close. We perceive no unreasonable delay in this timeline. The doctrine of laches is inapplicable.
¶19 Finally, Molini argues that the trial court erred in granting summary judgment to BPA for specific performance of the contract because the contract terminated as a matter of law when the parties did not close on October 17, 2007, and BPA did not provide Molini with notice of its intent to finance the sale until October 19, 2007. Molini contends that BPA’s notice of financing was ineffective because it occurred after the contract terminated, and BPA’s notice did not revive the terminated contract.
¶20 Molini’s reading of the contract is unreasonable because it is
contrary to the contract’s plain language.
See Klinger, 282
shall then have 10 days to give [Molini] written notice of [BPA’s] decision to finance this transaction on the same terms set forth in the financing contingency, and this Offer shall remain in full force and effect, with the time for closing extended accordingly. If [BPA’s] notice is not timely given, this Offer shall be null and void.
Molini argues that because the contract also provides that “time is of the essence,” the financing language cannot be read to mean that the closing date can be extended beyond the date set in the contract. We disagree; this is exactly what the contract provides. Molini cites no authority for the proposition that a contract containing the phrase “time is of the essence” cannot also contain a provision extending a set date for a specified amount of time under certain conditions. Here, the contract provides that time was of the essence, meaning that exact dates must be met; the contract set a closing date of October 17, 2007, but provided that if Molini was unable to obtain financing, BPA had ten days to elect to finance the sale, “with the time for closing extended accordingly.” Molini notified BPA that he was unable to obtain financing on October 10, 2007, thus triggering the ten days for BPA to determine whether it would finance the sale, and extending the closing date accordingly. We perceive no conflict between the clear provisions of the contract. Accordingly, we affirm.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
[1] Molini asserts he received the notice on October 19, 2007. Whether the notice was effective on October 18 or October 19 is irrelevant, as either day was within ten days of Molini’s notice on October 11.
[2] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[3] Molini
cites to his brief in opposition to BPA’s motion for summary judgment, where he
argued that BPA had not established that it was entitled to specific
performance and raised these same factual issues, contending that “[a]ll of the
foregoing, and more, are necessary to fully and completely assess the equity
and fairness of specific performance as a remedy. None of it can be provided in a summary
judgment format.” However, in opposing
BPA’s motion for summary judgment, Molini was required to provide the court
with submissions to establish that factual issues existed. See
Buckett
v. Jante, 2009 WI App 55, ¶22, 316
Additionally, we note that the only issue that Molini
raises in his reply brief is that there are factual issues that need to be
developed at a trial for the court to adequately assess whether specific
performance is equitable in this case.
Molini does not reply to BPA’s other substantive arguments. We therefore deem these arguments
conceded. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90