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Wimsatt v. Rinaldi-Dunn Homes, Inc.

Commonwealth of Kentucky Court of Appeals
Apr 22, 2016
NO. 2013-CA-001954-MR (Ky. Ct. App. Apr. 22, 2016)

Opinion

NO. 2013-CA-001954-MR

04-22-2016

ROBERT J. WIMSATT APPELLANT v. RINALDI-DUNN HOMES, INC. APPELLEE

BRIEF FOR APPELLANT: William L. Wilson Owensboro, Kentucky BRIEF FOR APPELLEE: Thomas A. Carroll Owensboro, Kentucky


NOT TO BE PUBLISHED APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JOSEPH W. CASTLEN, III, JUDGE
ACTION NO. 07-CI-01341 OPINION
AFFIRMING

** ** ** ** **

BEFORE: JONES, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Robert J. Wimsatt appeals from a judgment of the Daviess Circuit Court entered following a bench trial. The circuit court awarded Rinaldi-Dunn Homes, Inc., $22,500 plus post-judgment interest and costs pursuant to the terms of a real estate purchase agreement executed by Wimsatt and Rinaldi-Dunn. Wimsatt argues the trial court erroneously found he did not comply with the agreement by failing to perform preliminary excavation work as required. We conclude there was substantial evidence to support the trial court's findings of fact and affirm the judgment.

We note that both parties have failed to cite to the bench trial record where the testimony recited can be located. Kentucky Rules of Civil Procedure (CR) 76.12(4)(c) (iv) (requiring that the statement of the case contain "ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings, or date and time in the case of all other untranscribed electronic recordings, supporting each of the statements narrated in the summary.") It has been stressed to the practicing bar that an appellate court will not sift through a trial court record to ascertain facts to support a party's allegations of error on appeal when a party has failed to provide specific references to the record. Parker v. Commonwealth, 291 S.W.3d 647, 676 (Ky. 2009). Although failure to comply with appellate briefing rules may result in harsh consequences, in this case, there is little debate regarding the evidence produced at the bench trial and, therefore, we conduct review accepting the evidence as set forth in the parties' briefs.

On December 10, 2013, Wimsatt and Rinaldi-Dunn entered into a real estate purchase agreement pursuant to which Wimsatt agreed to sell a strip of land in Daviess County to Rinaldi-Dunn consisting of lots 1-11 of a proposed subdivision. The plat of the proposed subdivision was attached to the agreement showing lots 1-11 and an additional lot, lot 12. The agreement stated that the total purchase price of the land was $45,000, with $22,500 paid as a deposit and the remainder to be paid at closing. Pursuant to the agreement's terms, the deposit was to be returned by Wimsatt if "title of owners is not merchantable[.]" Upon signing the agreement, Rinaldi-Dunn paid the $22,500 deposit.

At the center of this controversy, are conditions placed on the occurrence of the final closing. The agreement stated "the transaction shall be closed not later than five days after plat approved by O.M.P.C. (referring to the Owensboro Metropolitan Planning Commission) breaking the acreage for lots 1-11 from lot 12 but not prior to March 31, 2004." In addition to the plat, "Exhibit B" was attached and incorporated into the agreement. It provided that Rinaldi-Dunn would pay $45,000 for the land and an additional $77,500 for improvements as required by the O.M.P.C.

The closing never occurred and Rinaldi-Dunn filed this action seeking a return of the $22,500 deposit paid. The case languished in the circuit court and, at one point, was dismissed without prejudice for lack of prosecution but was later returned to the active docket with the trial court's approval. Meanwhile, Wimsatt sold a portion of the property to another buyer.

Rinaldi-Dunn alleged Wimsatt breached the agreement by his failure to begin preliminary excavation work to "break" the acreage for lots 1-11 from lot 12 and Wimsatt did not obtain approval of a final development plat from the O.M.P.C. Rinaldi-Dunn pointed out that according to the rules of the O.M.P.C., there must be a final development plat approved by the O.M.P.C. for lot division of a property to transfer merchantable title.

Wimsatt contended the language referred to getting final approval of the O.M.P.C establishing lots 1-11 as individual parcels and did not refer to any excavation work or preliminary preparation of the lots. He argued that until Rinaldi-Dunn would commit to a closing, he was not required to take the additional step of getting final approval.

A bench trial was held. There was evidence that the land was not suitable for the construction of homes without bulldozer work to remove trees and level the hilly terrain. Rinaldi-Dunn was not a land developer and depended on Wimsatt to prepare the terrain for construction of the future homes. Rinaldi-Dunn introduced evidence the dozer work set forth the Exhibit B was in addition to Wimsatt's responsibility to perform preliminary excavation work prior to closing. The trial court also heard evidence that the best time to perform excavation and similar work to create a suitable terrain was after the winter months and, therefore, the agreement stated closing could not be before March 31, 2004.

Wimsatt introduced evidence that he repeatedly and unsuccessfully attempted to get Rinaldi-Dunn to agree to a closing date. Wimsatt maintained he took all steps necessary to pass good title at closing except securing the final engineering work required for final O.M.P.C approval. O.M.P.C. representative Brian Howard testified that could have been accomplished in thirty to forty-five days.

The trial court found Wimsatt's argument to be without basis. It noted that there was no testimony proffered by Wimsatt concerning what the O.M.P.C. would do to "break" lot 12 from lots 1-11. It noted that the preliminary plat existing prior to the real estate purchase agreement designated the lots as separated. The trial court found that the interpretation of the agreement offered by Rinaldi-Dunn was supported by the evidence and that Wimsatt breached the agreement.

The rules of construction applicable to a written contract are set forth in Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky.App. 2002)(internal citations omitted):

Where a contract is ambiguous or silent on a vital matter, a court may consider parol and extrinsic evidence involving the circumstances surrounding execution of the contract, the subject matter of the contract, the objects to be accomplished, and the conduct of the parties. Absent an ambiguity in the contract, the parties' intentions must be discerned from the four corners of the instrument without resort to extrinsic evidence.
The Court continued, defining an ambiguous contract as one that "a reasonable person would find it susceptible to different or inconsistent interpretations." Id. An ambiguity is not created merely because "one party may have intended different results[.]" Id.

The Cantrell Court also provided the appropriate standard of review:

Generally, the interpretation of a contract, including determining whether a contract is ambiguous, is a question of law for the courts and is subject to de novo review. However, once a court determines that a contract is ambiguous, areas of dispute concerning the extrinsic evidence are factual issues and construction of the contract become subject to resolution by the fact-finder.
Id. (internal citations omitted). In cases tried without a jury, "appellate review of the trial court's findings of fact are governed by the rule that such findings shall not be set aside unless clearly erroneous." A & A Mech., Inc. v. Thermal Equip. Sales, Inc., 998 S.W.2d 505, 509 (Ky.App. 1999) (citing CR 52.01). A finding of fact is clearly erroneous when it is not supported by substantial evidence. Eagle Cliff Resort, LLC v. KHBBJB, LLC, 295 S.W.3d 850, 853 (Ky.App. 2009). "Substantial evidence has been defined as that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person." Stanford Health & Rehab. Ctr. v. Brock, 334 S.W.3d 883, 884 (Ky.App. 2010).

The trial court found that the disputed phrase was ambiguous and considered extrinsic evidence. Wimsatt does not explicitly argue that the trial court erred by considering extrinsic evidence and does not cite this Court to any place in record that any argument was made that the contract was unambiguous. See CR 76.12 (4)(c)(v) (requiring a reference to the record where an issue has been preserved for review). Therefore, we accept the trial court's determination that the contract is ambiguous as correct and consider only whether its factual conclusions were based on substantial evidence.

Wimsatt's argument is difficult to understand. It is undisputed that Wimsatt did not perform any excavation work that would have separated lots 1-11 from lot 12 and he admittedly never obtained a final plat approval. Whether the agreement required final plat approval by the O.M.P.C. or preliminary excavation work to be performed by Wimsatt prior to closing, neither occurred and Wimsatt was in breach of the agreement.

Most importantly, we conclude there was substantial evidence to support the trial court's finding that Wimsatt breached the agreement by not breaking lots 1-11 from lot 12. As noted by the trial court, there was no evidence as to how O.M.P.C. was to "break the acreage." A common sense reading of that phrase would conclude that it means "breaking ground." As noted by the trial court, the delay of the closing to later than March 31, 2004, when the weather is more suitable to preparation of the terrain for construction supports Rinaldi-Dunn's interpretation of the agreement. Additionally, the plat incorporated into the agreement identified lots 1-11 thus bringing doubt on Wimsatt's argument that the phrase " breaking acreage for lots 1-11 from lot 12" required further action by the O.M.P.C. instead of preliminary excavation work to be performed by Wimsatt. Under the applicable standard of review, we affirm.

Based on the foregoing, the judgment of the Daviess Circuit Court is affirmed.

JONES, JUDGE, CONCURS.

TAYLOR, JUDGE, DISSENTS. BRIEF FOR APPELLANT: William L. Wilson
Owensboro, Kentucky BRIEF FOR APPELLEE: Thomas A. Carroll
Owensboro, Kentucky


Summaries of

Wimsatt v. Rinaldi-Dunn Homes, Inc.

Commonwealth of Kentucky Court of Appeals
Apr 22, 2016
NO. 2013-CA-001954-MR (Ky. Ct. App. Apr. 22, 2016)
Case details for

Wimsatt v. Rinaldi-Dunn Homes, Inc.

Case Details

Full title:ROBERT J. WIMSATT APPELLANT v. RINALDI-DUNN HOMES, INC. APPELLEE

Court:Commonwealth of Kentucky Court of Appeals

Date published: Apr 22, 2016

Citations

NO. 2013-CA-001954-MR (Ky. Ct. App. Apr. 22, 2016)