Opinion
No. 34842-0-II.
September 18, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-2-11427-1, Bryan E. Chushcoff, J., entered May 5, 2006.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Bridgewater and Hunt, JJ.
Sunrise Development Corp. appeals from the trial court's order granting Trinity Land Development, LLC, specific performance of a real estate contract to purchase 20 acres in a planned development in Pierce County, Washington. Because Sunrise's conduct caused Trinity's failure to timely file its preliminary plat application, we affirm.
FACTS
On April 29, 2003, Trinity contracted to buy 20 acres in a planned development which Sunrise owned. Under the contract, Sunrise was to provide a legal description of the property by June 11, 2003. Sunrise failed to provide the legal description by the date set out in the contract. Despite Sunrise's breach, Trinity accepted feasibility, telling Sunrise that it needed to get the legal description to move forward with its contractual obligations including filing a preliminary plat application with Pierce County's planning department.
The agreement required the buyer to determine whether the property was feasible for development by June 11, 2003.
Trinity hired Richard Larson to file its plat application and made a $50,000 non-refundable payment to Sunrise. Stefan Kamieniecki of Pierce County Planning and Land Services told Larson that he could not accept filing of a preliminary plat application without a specific parcel number for the property. Trinity could not obtain a parcel number without having a final legal description and segregation. When Trinity did not file its plat application by September 4, 2003, as the contract required, Sunrise declared the contract null and void.
Trinity prevailed in its suit against Sunrise for specific performance of the contract. Sunrise appeals.
Discussion
Findings of Fact and Conclusions of Law
Sunrise challenges a number of the trial court's findings supporting its conclusion that Trinity was entitled to specific performance of the real estate contract.
We review challenged findings of fact to determine whether they are supported by substantial evidence and, if so, whether the findings support the conclusions of law. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). Unchallenged findings are verities on appeal. State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003); State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). We review the trial court's conclusions of law de novo. Carlstrom v. Hanline, 98 Wn. App. 780, 784, 990 P.2d 986 (2000).
Evidence is substantial when it is sufficient to persuade a reasonable fact finder of the truth of the declared premise. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 819, 828 P.2d 549 (1992). Sunrise bears the burden of showing that the trial court's findings are not supported by substantial evidence. Nordstrom Credit, Inc. v. Dep't of Revenue, 120 Wn.2d 935, 939-40, 845 P.2d 1331 (1993).
A. Finding of Fact 11
On appeal, Sunrise challenges the trial court's Finding of Fact 11 which found that, under the agreement, Sunrise had the duty to segregate the 20-acre parcel. Substantial evidence supports this finding: Ryan McGowan, Trinity's owner, testified that during the negotiations Carl Halsan, Sunrise's agent, told him that Sunrise was obligated to segregate the parcel. Halsan also testified that he told the Corlisses (Sunrise's owners) that Sunrise had the duty to segregate the parcel.
Halsan also memorialized his discussions about the segregation in a document submitted to the trial court as Exhibit 61.
Additionally, Harry Corliss told his chief financial officer, John Boe, that Trinity should be given more time because Sunrise did not timely complete the segregation. And Boe testified that Scott Corliss had complained to him that Halsan did not file the segregation request on time.
Under the contract, Trinity was to purchase an unspecified parcel at least 20 acres in size so that the property could be divided from the larger 288-acre master planned development without first undergoing the formal subdivision process under chapter 58.17 RCW and former Pierce County Code 16.02. Sunrise had the duty to segregate the parcel and provide Trinity with the correct legal description by June 11, 2003. Sunrise did not meet this deadline. Instead, Sunrise submitted the segregation application sometime after July 7, 2003. By that time, the County Assessor's office had stopped processing these applications for several months while they installed a new computer system.
Under the statute of frauds, every sales contract for real property must contain the legal description of the property's correct lot number, block number, addition, city, county, and state. Martin v. Seigel, 35 Wn.2d 223, 229, 212 P.2d 107 (1949).
Substantial evidence supports the trial court's finding that Sunrise had the duty to timely segregate the 20-acre parcel for Trinity.
B. Finding of Fact 15
Sunrise challenges the trial court's Finding of Fact 15, which found that Trinity would not have a correct legal description of the property until the segregation process was completed. This process would have set the property's boundaries to achieve at least a 20-acre parcel. Sunrise challenges this finding on the ground that Kamieniecki misinformed Trinity about the parcel number requirement and Sunrise contends that Trinity could have proceeded with its application using the master plat number. Sunrise mischaracterizes the issue. The issue here is whether Sunrise provided Trinity with the correct legal description by the required deadline. As discussed above, the size of the parcel was central to the agreement. Providing the correct legal description required Sunrise to segregate the property.
Kamieniecki was the level II planner responsible for processing applications within the Sunrise Master Plan Community since 1997. At trial, Kamieniecki and others testified that Trinity could have filed its application under the master plat number. However, the trial court's finding addresses information the planning department, through Kamieniecki, gave Trinity at the time its agent, Larson, was attempting to file the preliminary plat application.
The issue here is whether Sunrise provided Trinity with the correct legal description by the required deadline. As discussed above, the size of the parcel was central to the agreement. Providing the correct legal description required Sunrise to segregate the property. Larson testified that until the property was segregated, the legal description could change. The engineer retained by Sunrise, Randy Haydon, concurred and testified that the draft legal description he drafted for Sunrise, prior to the segregation process, was subject to revision by the County Assessor's office. The Pierce County Assessor's office application processing did not actually segregate the parcel until February 2004, thus the correct legal description could not have been provided until then. Substantial evidence supports the trial court's Finding of Fact 15 that until the segregation process was complete, the legal description was changeable and Sunrise had to complete the segregation process to provide the correct legal description. Thus, Sunrise was in breach and Trinity's compliance with the September 4, 2003 date was excused until it received a legal description.
C. Estoppel
On appeal, Sunrise contends that the trial court lacked authority to decide Trinity's duty to comply on the equitable ground of estoppel because Trinity did not plead it. We disagree. Trinity's complaint included a request for "such further and other relief as [the trial court] may deem just and proper." 1 Clerk's Papers (CP) at 5.
The trial court concluded that Sunrise was equitably estopped from strictly enforcing the time requirements of the contract. Trinity did not expressly raise estoppel at trial, but Sunrise did not object to the trial court's conclusion of law based on Trinity not pleading it. The only objection raised by Sunrise was that the trial court's oral ruling did not contain the equitable estoppel conclusion found in its written ruling. But the trial court's oral decision is not binding "unless formally incorporated into the findings, conclusions, and judgment" because the oral decision is no more than a verbal expression of an informal opinion at the time. DGHI Enters. v. Pacific Cities, Inc., 137 Wn.2d 933, 944, 977 P.2d 1231 (1999) (citing Ferree v. Doric Co., 62 Wn.2d 561, 566-67, 383 P.2d 900 (1963)).
On appeal, a party may not object on grounds not presented to the trial court. Sepich v. Dep't of Labor Indus., 75 Wn.2d 312, 450 P.2d 940 (1969). See Presnell v. Safeway Stores, Inc., 60 Wn.2d 671, 374 P.2d 939 (1962) (held a general objection which does not specify the particular ground on which it is based is insufficient to preserve a question for appellate review; an objection must be accompanied by a reasonably definite statement of the grounds so that the judge may understand the question raised and the adversary may be afforded an opportunity to remedy the claimed defect).
D. Duty of Good Faith
Sunrise next asserts that the duty of good faith does not obligate it to agree to material change in the contract terms.
Sunrise attempted to force Trinity to unilaterally adhere to the agreement's deadlines. See Badgett v. Sec. State Bank, 116 Wn.2d 563, 569, 807 P.2d 356 (1991) (A duty of good faith and fair dealing is implied in every contract; "[t]his duty obligates the parties to cooperate with each other so that each may obtain the full benefit of performance"). The trial court properly found that Sunrise violated the duty of good faith.
E. Condition Precedent
Sunrise next asks that we "find" that the deadline for filing the preliminary plat application (September 4, 2003) was a condition precedent to Sunrise's performance under the contract. Appellate courts do not find facts.
"Whether a provision in a contract is a condition, the nonfulfillment of which excuses performance, depends upon the intent of the parties." Tacoma Northpark, LLC v. NW, LLC, 123 Wn. App. 73, 79, 96 P.3d 454 (2004). Here, the trial court did not enter any factual finding regarding the parties' intent on this issue.
Sunrise also asserts that the trial court erred when it awarded Trinity specific performance of the agreement because it misunderstood when Sunrise would receive payment and mistakenly believed it received payment sooner than it would have under the agreement. However, Sunrise's improper termination of the contract delayed the payment. Under the agreement, Sunrise was to have received payment around nine months after Trinity filed its preliminary plat application.
Additionally, during the damages phase of the trial, Trinity agreed to pay the funds to Sunrise without having the benefit of the ability to file the preliminary plat application and waiting nine months before submitting its payment to Sunrise. Under the new applicable Pierce County regulations, only an owner of property may submit a preliminary plat application. Without Trinity's agreement to pre-pay, Sunrise would have had to convey the title to Trinity, allow Trinity to submit the preliminary plat application, and wait nine months to receive payment. Attorney Fees
The awarding of attorney fees under a statute or contract is a matter of discretion with the trial court that will not be disturbed absent a clear showing of an abuse of that discretion. Entm't Indus. Coal. v. Tacoma-Pierce County Health Dep't, 153 Wn.2d 657, 666, 105 P.3d 985 (2005); Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 65, 738 P.2d 665 (1987).
The agreement contains a valid attorney fees provision, which specifically provides that the prevailing party shall be entitled to reasonable attorney fees and costs, including those for appeals.
Trinity prevailed under the agreement both at trial and on appeal and is, therefore, entitled to its reasonable attorney fees and costs upon compliance with RAP 18.1.
The prevailing party is the party in whose favor final judgment is rendered. RCW 4.84.330; Meenach v. Triple "E" Meats, Inc., 39 Wn. App. 635, 640, 694 P.2d 1125, review denied, 103 Wn.2d 1031 (1985).
In summary, Sunrise urges us to treat the two contract provisions independently and argues that its failure to provide the legal description, segregate the property, and obtain a parcel number did not affect Trinity's ability to timely file the preliminary plat application. We disagree.
Sunrise's failure to timely provide the final legal description effectively prevented Trinity from filing a plat application by the September 4, 2003 contract date and excused Trinity from complying with that date. Accordingly, Sunrise could not revoke the contract for Trinity's failure to satisfy the time limit, which Sunrise caused.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, P.J. and HUNT, J., concur.