Opinion
No. 52535-2-I
Filed: November 15, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 00-2-00756-2. Judgment or order under review. Date filed: 05/16/2003. Judge signing: Hon. David a Nichols.
Counsel for Appellant(s), Thomas Gregory Greenan, Zender Thurston PS, 1700 D St, PO Box 5226, Bellingham, WA 98227-5226.
Counsel for Respondent(s), John C. Belcher, Belcher Lackey Doran Lewis et al, Battersby Field Professional Bldg, 900 Dupont St, Bellingham, WA 98225-3105.
Larry Daugert, Attorney at Law, PO Box 5008, Bellingham, WA 98227-5008.
Counsel for Other Parties, Michelle Anastasia Corsi, Lee Smart Cook Martin Patterson PS, 701 Pike St Ste 1800, Seattle, WA 98101-3929.
The trial court ordered Solid Trading to specifically perform under a land sale contract. Solid Trading appeals the order. Solid Trading claims that Nielsen Brothers failed to perform by not depositing funds into escrow and that even if Nielsen Brothers did perform it was not possible for Solid Trading to return the closing documents by the closing deadline.
Solid Trading also argues that Don Parker, who acted as a dual agent for Nielsen Brothers and Solid Trading, breached his fiduciary duties and that the trial court erred by dismissing Solid Trading's Consumer Protection Act claim against him. Finally, Solid Trading claims that Nielsen Brothers was not the prevailing party and should not have been awarded attorney fees. We affirm.
FACTS
Nielsen Brothers, Inc. (NBI) offered to purchase the land at issue from Solid Trading numerous times between 1995 and 2000. NBI used Don Parker a licensed real estate agent working for Sun Mark Properties, Inc., as its agent to make these offers. Parker in turn contacted Edgardo Tordesillas with the offers, who then passed them along to Elena Lim, an acquaintance. Elena and Vincent Lim are both directors at Solid Trading. In February and March 2000, NBI made an offer, Solid Trading counter-offered, and NBI accepted. NBI, as the buyer, prepared and signed a Purchase Sale Agreement (PSA) on February 23 and 29, 2000. The PSA stated that the sale would be closed by Whatcom Land Title (WLT) on March 15, 2000, and that the parties would use Parker as a dual agent. NBI deposited $3,500 in earnest money with WLT on February 29, 2000. Solid Trading had its attorney review the PSA and then signed it as the seller on March 6, 2000. Solid Trading returned the signed PSA on March 8 or 9, 2000. WLT then prepared and sent the necessary closing documents, which Solid Trading received in Makati City, Philippines, on March 13, 2000. The lender, as is the common practice, would not release NBI's payment until Solid Trading returned the signed documents. Solid Trading did not return or make any attempt to close the transaction by the March 15, 2000, closing date specified in the PSA.
NBI is a Washington Corporation based out of Bellingham and Solid Trading is a Hong Kong Corporation, with offices in the Philippines.
NBI asked for the March 15, 2000, closing date so it could avoid logging regulations that were to go into effect on March 20, 2000. NBI repeatedly communicated its concern to Parker but Parker failed to convey the reason that time was of the essence to Solid Trading until March 17, 2000. Solid Trading did not return the closing documents until June 2000.
NBI sued Solid Trading for specific performance and consequential damages in April 2000. Solid Trading brought third party actions against Parker and Sun Mark properties alleging that they should pay any consequential damages. The trial court found that Solid Trading breached and ordered specific performance and granted attorney fees for the costs associated with getting specific performance. The trial court denied NBI's request for consequential damages because they were not within the contemplation of the parties at the time the PSA was executed and granted Solid Trading attorney fees associated with defending the consequential damages aspect of the lawsuit. Because it declined to award consequential damages the trial court dismissed Solid Trading's claims against Parker and Sun Mark Properties.
ANALYSIS I. Standard of Review
We review a trial court's findings of fact and conclusions of law under a two-step process. First, we review whether the findings of fact are supported by substantial evidence in the record. Second, we look to whether the findings of fact support the conclusions of law. Landmark Dev., Inc., v. City of Roy, 138 Wn.2d 561, 573, 980 P.2d 1234 (1999). We review summary judgment orders de novo. Hadley v. Maxwell, 144 Wn.2d 306, 310, 27 P.3d 600 (2001). When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. We consider the facts and all reasonable inferences from the facts in the light most favorable to the nonmoving party. Right-Price Recreation, L.L.C. v. Connells Prairie Cmty. Council, 146 Wn.2d 370, 381, 46 P.3d 789 (2002). Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. CR 56(c). The motion should be granted only if, from all the evidence, reasonable persons could reach but one conclusion. However, bare assertions that a genuine material issue exists will not defeat a summary judgment issue in the absence of actual evidence. Trimble v. Washington State Univ., 140 Wn.2d 88, 93, 993 P.2d 259 (2000).
II. Nielsen Brothers' Failure to Deposit Funds with WLT
Solid Trading argues that NBI's failure to deposit funds with WLT discharged Solid Trading's duty to perform. Br. of Appellant at 24. Where duties are concurrent, neither party can place the other in breach for failure to perform without a tender of its own performance. Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986); see also Monroe St. Properties, Inc. v. Carpenter, 407 F.2d 379, 380-381 (9th Cir. 1969). Tender means 'a readiness and willingness to perform in case of the concurrent performance by the other party, with present ability to do so, and notice to the other party of such readiness.' Monroe St. Properties, 407 F.2d at 380-381 (quoting 6 Williston, Contracts (3d ed. 1962) sec. 833 p. 105 (internal quotation marks and emphasis omitted)); see also Restatement (Second) of Contracts sec. 238. Solid Trading claims that because NBI did not deposit all cash in escrow by March 15, 2000, that NBI failed to tender performance and thus has no right to seek damages for breach of contract. Solid Trading relies on Willener v. Sweeting for the contention that NBI did not tender performance.
It is undisputed that the parties had concurrent duties to perform.
The parties in Willener had signed a Purchase and Sale Agreement that required a December 15, 1979, closing date. Willener, 107 Wn.2d at 390. When the defendant failed to tender marketable title, the plaintiff sued for lost profits and recovery of earnest money. Willener, 107 Wn.2d at 389. The defendant argued that since the plaintiff failed to deposit the funds by the same date, the plaintiff did not manifest being ready, willing and able to perform. Willener, 107 Wn.2d at 394. To the contrary, the escrow agent testified that the plaintiff tendered only one dollar as funds to close the sale. Willener, 107 Wn.2d at 394. The plaintiff argued that it was useless to deposit the funds because the defendant was incapable of performing. Willener, 107 Wn.2d at 394. The Washington State Supreme Court rejected this argument because the duty in the contract to perform was concurrent. Willener, 107 Wn.2d at 395. The plaintiff also argued that they did not have to deposit funds into escrow because 'defendants' inability to provide a marketable title rendered plaintiffs' performance useless.' Willener, 107 Wn.2d at 395. The Washington State Supreme Court rejected this argument, noting that 'neither plaintiffs nor defendants could have known on the closing dates the other party could not, would not and was not going to perform as required by the agreement.' Willener, 107 Wn.2d at 395 (internal quotation marks omitted).
Here, NBI did not deposit its funds into escrow. Nonetheless, the trial court found that NBI was ready, willing, able and eager to close the sale as scheduled [and] had arranged for financing, and the funds were available upon notification to the bank by WLT that the closing documents had been executed. Once WLT received the signed documents back from Solid Trading, plaintiff was ready to sign and have its bank wire the money to WLT to close the transaction.
The trial court concluded that NBI tendered performance and that Solid Trading breached the contract. The findings are supported by substantial evidence. NBI arranged for a line of credit with Washington Mutual Bank. The funds were available for wire transfer as soon as Washington Mutual received confirmation that Solid Trading had signed the closing papers. The lender in this case, following normal lending practices, would not transfer the required funds until Solid Trading executed the closing documents. Deanna Handley, the escrow agent for Washington Land Title testified at trial:
Q: And from everything you could see, was NBI ready, willing and able to close on the 15th?
A: Yeah, they were.
James Lasher, the closing manager at NBI testified that he phoned the escrow agent regularly, both before and after the closing date:
Q: [w]hat did you do with regard to meeting that closing date?
A: Well, I talked with Deanna for several days in there asking if the sellers' papers were back
Q: Okay. And with regard to contacts with Deanna, can you tell me whether or not you contacted her on the 15th?
A: Oh, yes, I'm sure I did.
Q: The 16th?
A: Um, yes.
Q: The 17th?
A: Yes.
Q: And did you communicate to her your urgency?
A. Oh, yes.
The evidence suggests that NBI did everything within reason to demonstrate that it was ready, willing and able to close. Accordingly, we affirm that NBI adequately tendered performance by the March 15, 2000 closing date.
III. Reasonable Diligence
Solid Trading claims that it was objectively not possible through the exercise of reasonable diligence for it to have performed by the March 15, 2000 closing date. Where a party's performance becomes impracticable, through no fault of his or her own, his or her duty to render performance may be discharged. Pub. Util. Dist. No. 1 v. Washington Pub. Power Supply Sys., 104 Wn.2d 353, 363-64, 705 P.2d 1195 (1985); see also Restatement (Second) of Contracts sec. 261. Solid Trading claims that it is incorrect to apply an impossibility analysis to this case, claiming instead that it was objectively not possible through the exercise of reasonable diligence for Solid Trading to have performed by the March 15, 2000 closing date. Under the facts in this record Solid Trading's arguments fail.
Solid Trading relies on Langston v. Huffacker, 36 Wn. App. 779, 789, 678 P.2d 1265 (1984) for the contention that it could not have performed with the exercise of due diligence. The Langston court held that the parties must exercise due diligence to close a transaction in a timely manner. Langston, 36 Wn. App. at 788. Because the seller in Langston had failed to exercise due diligence the court specifically enforced the contract against her. Langston, 36 Wn. App. at 789.
Here, it is undisputed that Solid Trading received the closing documents on March 13, 2000. Solid Trading claims that it could not have executed the closing documents on that day because it did not expect to receive them and did not have time for its Board of Directors approve of the documents and to authorize Vincent Lim to sign on their behalf. The trial court found that '[n]one of the excuses offered by Solid Trading as to why it failed to close are credible.' Credibility determinations are the sole province of the trial court. In re Welfare of Sego, 82 Wn.2d 736, 740, 513 P.2d 831 (1973). The record supports the trial court's finding.
Solid Trading also claims that even if it had executed and mailed the closing documents on March 13, 2000, they would not have reached WLT by the March 15, 2000, closing date. The facts in the record do not support Solid Trading's contention. Solid Trading points out that WLT mailed the closing documents from Bellingham, Washington on March 10, 2000, and the documents arrived in the Philippines on March 13, 2000. Solid Trading argues that because it took the closing documents from March 10, 2000, to March 13, 2000, to reach its office, even if it mailed the same documents back on March 13, 2000, they would not reach Bellingham until March 16, 2000. Solid Trading's logic is flawed. The closing documents took approximately 48 hours to reach the Philippines from Bellingham, though because they crossed the International Date Line they appear to have taken 72 hours. This time would have been made up on the way back to Bellingham. Solid Trading's argument fails to account for the International Date Line. If Solid Trading had executed and mailed the closing documents on March 13, 2000, in the Philippines, they would presumably have arrived in Bellingham 48 hours later, or somewhat confusingly, on March 14, 2000, Washington time. Had the documents been sent one day later, on March 14, 2000, in the Phillipines, they would have reached Bellingham by March 15, 2000, even though they in fact took 48 hours to travel between locations. The only evidence that Solid Trading cites to argue against their apparent ability to timely perform, after correcting for their apparent mistake as to the International Date Line, is a letter from Elena Lim dated, and allegedly mailed on, March 13, 2000, which reached Bellingham on March 16, 2000. The record contains no evidence that this letter was in fact mailed on March 13, 2000. The trial court was aware of this letter yet did not find it sufficient to support Solid Trading's arguments. As noted above, the trial court concluded that '[n]one of the excuses offered by Solid Trading as to why it failed to close are credible.' We defer to the trial court on credibility determinations such as this. In re Welfare of Sego, 82 Wn.2d at 740. Accordingly, we conclude the trial court's finding that Solid Trading could have returned the closing documents by the March 15, 2000, deadline, had it acted with due diligence, is supported by sufficient evidence. Because Solid Trading failed to act with due diligence the trial court did not err by ordering specific performance.
IV. Don Parker
Solid Trading argues that the trial court erred in dismissing its Consumer Protection Act (CPA) claim against Parker. We review summary judgment orders de novo. Hadley v. Maxwell, 144 Wn.2d 306, 310, 27 P.3d 600 (2001). When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. We consider the facts and all reasonable inferences from the facts in the light most favorable to the nonmoving party. Right-Price Recreation, L.L.C v. Connells Prairie Cmty. Council, 146 Wn.2d 370, 381, 46 P.3d 789 (2002). Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. CR 56(c). The motion should be granted only if, from all the evidence, reasonable persons could reach but one conclusion. However, bare assertions that a genuine material issue exists will not defeat a summary judgment issue in the absence of actual evidence. Trimble v. Washington State Univ., 140 Wn.2d 88, 93, 993 P.2d 259 (2000). CPA claims require proof of five elements: 1) unfair or deceptive acts or practices; 2) occurring in trade or commerce; 3) which impact the public interests; 4) injury to the plaintiff in his or her business or property; and, 5) a causal link between the unfair or deceptive act and the injury suffered. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 780, 719 P.2d 531 (1986). Parker failed to provide the relevant real estate pamphlet as required by RCW 18.86.030(1)(f). Solid Trading alleges that this act satisfies the five elements of the CPA, which in turn caused it to miss the March 15 closing date. The record does not support the contention that Parker engaged in any unfair or deceptive acts that caused any injury to Solid Trading. To the contrary, the record indicates but one conclusion: that Solid Trading's failure to return the closing papers by the promised March 15, 2000 deadline was solely its own. Solid Trading received, signed and returned the PSA on March 8 or 9, 2000. The PSA explicitly stated that the parties agreed WLT would close the sale by March 15, 2000. Solid Trading received the closing documents on March 13, 2000 in the Philippines, but did not return them until June 2000. Solid Trading's failure to exercise due diligence was the cause of its breach. While the record indicates Parker failed to provide the relevant real estate pamphlet required by RCW 18.86.030(1)(f), his violation of that statute was not the proximate cause of Solid Trading's breach.
Accordingly, the trial court did not err in dismissing Solid Trading's CPA claims.
V. Attorney fees
Solid Trading argues that NBI was not the prevailing party because it could have closed the sale prior to the termination of its lawsuit. Paragraph 27 of the PSA states '[i]f Buyer, Seller, Listing Agent or Selling Licensee institutes suit concerning this Agreement . . . the prevailing party is entitled to . . . a reasonable attorney's fee.' NBI instituted the present suit and prevailed to the extent that it received specific performance. Solid Trading prevailed to the extent that it did not have to pay consequential damages, which NBI has not raised on appeal. Accordingly, the trial court correctly granted NBI attorney fees and costs associated with obtaining specific performance and Solid Trading the costs associated with defending against consequential damages. Parker prevailed because Solid Trading's claims against him were dismissed. The trial court's apportionment of attorney fees conforms to the parties' agreement in the PSA. Additionally, NBI and Parker are awarded their reasonable attorney fees for this appeal pursuant to the PSA.
Affirmed.
SCHINDLER, J. and AGID, J., Concur.