Opinion
No. 26407-6-III.
June 17, 2008.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 07-2-00223-6, Robert L. Zagelow, J., entered July 20, 2007.
Affirmed by unpublished opinion per Brown, J., concurred in by Kulik, A.C.J., and Korsmo, J.
The Estate of Elmer C. Duff, through its personal representative George R. Granberg, the Estate of Elsie L. Duff, through its personal representative Carol J. Harting, and Carol J. Harting and John Doe Harting, wife and husband, (collectively Ms. Harting) appeal the trial court's summary grant of specific performance of a real estate sales agreement to purchaser Alan Ashmore. Ms. Harting contends the real estate purchase and sale agreement expired during the time the court had, at her insistence, stayed performance during estate litigation. We agree with the trial court that Ms. Harting is judicially estopped from disputing the extended closing date, and affirm.
FACTS
Elmer and Elsie Duff married in 1972. Mr. Duff died testate on April 20, 2005. Ms. Duff died testate on July 6, 2005. Mr. Duff's personal representative, Mr. Granberg, executed a real estate purchase and sale agreement for $100,000 with Mr. Ashmore for real property at 1663 Duffy Lane, in Walla Walla. The agreement included a "time is of the essence" clause, with closing on or before December 15, 2005.
On November 21, 2005, Ms. Harting, Ms. Duff's daughter and personal representative, moved to enjoin the Duffy Lane sale believing Ms. Duff probably had a community or lien interest in the property and that it had been undervalued. On November 23, 2005, the court orally granted Ms. Harting's motion, discussing the "need to fast track this. I understand we have a sale going and we don't like to lose sales. Sales are good." Clerk's Papers (CP) at 32. Ms. Harting offered to purchase the property for $105,000 in lieu of a bond. The parties discussed a possible lawsuit for breach of contract with Mr. Ashmore, and the court stated: "I would say this, I think what you ought to do is at least get an indication [of whether Mr. Ashmore is still interested], just tell him what's happened. It's enjoined for right now, [and] you don't know how long that's going to last." CP at 40-41. The court required a bond because Mr. Ashmore might "hang tough." CP at 42.
On January 18, 2006, the court entered written findings of fact and conclusions of law, finding: "[t]he sale of the Duffy Lane property appears to be for a price that is significantly below the market value of that property; Carol J. Harting has a possible interest in this matter that has yet to be determined;" and "[p]ending a trial on the merits, the status quo should be preserved by enjoining the sale of the Duffy Lane property." CP at 69-70 (emphasis added).
On February 15, 2007, Mr. Ashmore sent a demand letter demanding to close the sale. On February 22, 2007, Ms. Harting rejected his demand, stating the view that the agreement had expired on its own terms. On February 26, 2007, the court entered an order "as a component of the overall resolution" of the estate dispute, requiring a conveyance of the real property from Mr. Duff's estate to Ms. Harting. CP at 80.
On March 27, 2007, Mr. Ashmore sued Ms. Harting for specific performance of the purchase and sale agreement. The parties filed cross-motions for summary judgment. The court ruled Mr. Ashmore "is entitled to specific performance of the subject Real Estate Purchase and Sale Agreement with Earnest Money Provision because closing was made legally impossible through no fault of [Mr. Ashmore]." CP at 110. Ms. Harting is "estopped from asserting that the subject Real Estate Purchase and Sale Agreement with Earnest Money Provision expired based on [the] theory of judicial estoppel." Id. Mr. Ashmore received $4,206.30 in attorney fees and costs.
Ms. Harting unsuccessfully moved for reconsideration, prompting the court to write: "[T]here never has been a finding that the price actually was below market. Furthermore, even if such a determination were to be made, I am not aware of any theory which would allow the contract to be voided on that basis." CP at 94. And, "[a]t the time of the hearing, my only concern relative to the price was whether or not there would be sufficient funds available to cover any potential damages." Id. Further, "[s]ince Mr. Ashmore was not a party to the proceedings, I never envisioned that this Court was in a position to invalidate the transaction by reason of the alleged inadequate price." CP at 94-95. Ms. Harting appeals the summary judgment grant to Mr. Ashmore, and the denial of her motions for summary judgment and reconsideration.
ANALYSIS
The issue is whether the superior court erred in applying the judicial estoppel doctrine when granting summary specific performance relief to Mr. Ashmore over Ms. Harting's contention that the purchase and sale agreement expired by its own terms.
We review a trial court's summary judgment grant de novo. Haslett v. Planck, 140 Wn. App. 660, 665, 166 P.3d 866 (2007). Summary judgment is appropriate where no genuine issues of material fact exist and the issues can be resolved as a matter of law. Id. We review a trial court's application of the doctrine of judicial estoppel for abuse of discretion. McFarling v. Evaneski, 141 Wn. App. 400, 403, 171 P.3d 497 (2007); Haslett, 140 Wn. App. at 665.
"Judicial estoppel is an equitable doctrine that precludes a party from taking incompatible positions to his advantage in successive court proceedings." Haslett, 140 Wn. App. at 665. A non-exhaustive list of factors used to determine whether the doctrine applies includes: (1) whether a party has taken inconsistent positions; (2) whether the court's acceptance of an inconsistent position would create a perception that it was misled; and (3) whether the court's acceptance of an inconsistent position would result in an unfair advantage to the asserting party or an unfair detriment to the opposing party. Id. at 666.
Generally, a contract terminates for failure to tender performance upon the stated termination date, where "time [is] of the essence," unless there is "conduct giving rise to estoppel or waiver." Vacova Co. v. Farrell, 62 Wn. App. 386, 407, 814 P.2d 255 (1991).
On Ms. Harting's motion to enjoin the sale, the court granted an injunction, finding "[p]ending a trial on the merits, the status quo should be preserved by enjoining the sale of the Duffy Lane property." CP at 70. A valid purchase and sale agreement was acknowledged at the injunction hearing. The parties discussed the possibility of a lawsuit for breach of contract if the property were sold to Ms. Harting without confirming that Mr. Ashmore was not going to "hang tough" as the court observed. CP at 42.
Ms. Harting inconsistently argued that the Purchase and Sale Agreement had expired and acted to transfer the Duffy Lane property to her. This is a far cry from preserving the status quo. The court's acceptance of this position would create a perception that it was misled in granting the injunction. Mr. Ashmore, who was not a party to the estate litigation, was not consulted, and he did "hang tough." Accepting Ms. Harting's position would result in an unfair advantage to Ms. Harting and would result in a detriment to Mr. Ashmore, who abided by the court's injunction while waiting for the estate dispute to be settled. Given the undisputed facts, the trial court did not abuse its discretion in applying judicial estoppel. It properly granted summary judgment for specific performance to Mr. Ashmore on the Purchase and Sale Agreement.
As the prevailing party, Mr. Ashmore, at his request, is entitled to attorney fees and costs on appeal. RCW 4.84.330.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, A.C.J., KORSMO, J., Concur.