Opinion
C.A. No. 04A-10-006 SCD.
Submitted: January 13, 2006.
Decided: March 14, 2006.
ORDER
This 14th day of March 2006, upon consideration of the briefs filed in support of the appeal by defendants below-appellants, it appears:
1. This appeal from the Court of Common Pleas involves a contract for the sale of real estate. The dispute relates to ownership of a $25,000 deposit check tendered by buyer, to sellers, and held by sellers, real estate agent, Beiler-Campbell Financial services, LLC ("BCF"). The Court of Common Pleas entered summary judgment in favor of the plaintiff-appellee.
2. The property in question is owned by David H. Donovan, Regina V. Donovan and Miscella Queen Company ("Miscella Queen") of the British West Indies ("sellers"). Harkins Property, LLC ("buyer") tendered a contract to purchase the property which was signed and notarized by the Donovans, and signed by Henry Osowiecki as agent for Miscella Queen in November 2003. The signature of Osowiecki was not notarized, apparently because there was no evidence presented to the notary of his authority to act on behalf of Miscella Queen. BCF wrote a letter to buyer's agent dated December 22, 2002, indicating that Miscella Queen "did not sign the papers because this person is more like a corporation and not an actual person."
It appears that Hawkins did not know that Miscella Queen was a business entity as the contract tendered to sellers merely says Miscella Queen.
Letter from Jane M. Bonam, Realtor, Beiler-Campbell, to Dennis Satnick (Dec. 22, 2002).
That problem was sorted out as Osowiecki had been properly appointed to serve as the corporate agent by the Delaware Court of Chancery. A notarized signature was provided to buyer on January 16, 2003.
3. The contract contained a provision for termination within 150 days of the agreement if buyer "determines that it is not feasible for Buyer to purchase the Property for any reason or for no reason," and the deposit shall be returned to the buyer.
Land Purchase and Development Agreement § 4.2 (Nov. 24, 2002).
4. The buyer notified the sellers within 150 days of January 16, 2003, that it elected to terminate the agreement. Sellers argued below that the termination period of 150 days commenced on November 26, 2002, when the agreement was fully signed, but not notarized as to Miscella Queen.
5. There are no issues of material fact. The issue before the court below was: when was the contract consummated? The court found that all the elements of a contract, including the tendering of the deposit (which was required by contract to be tendered "[s]imultaneously with the execution of this Agreement") did not occur until January 16, 2003. The 150 days had not run at the time the notice of termination was presented. The buyer was entitled to the return of its money.
CCP Civ. R. 56
Harkins Property, LLC, v. Donovan, et al., Del. CCP, C.A. No. 2003-11-197, Smalls, J. (Sept. 24, 2004); Land Purchase and Development Agreement § 2.2 (Nov. 24, 2002).
The ruling of the Court of Common correctly states the facts of the transaction, and is correct as a matter of law. It is AFFIRMED.
IT IS SO ORDERED.