Hidalgo Properties, Inc. v. Wachovia Mortg. Co., 78-1240

• Citation: 617 F.2d 196
• Decision Date: 25 February 1980
• Docket Number: No. 78-1240,78-1240
• Parties: HIDALGO PROPERTIES, INC., a Corporation, Plaintiff-Appellee, v. WACHOVIA MORTGAGE COMPANY, a Corporation, Wachovia Realty Investments, a South Carolina Business Trust, and Edward Warner, Hans W. Sanders, Bland W. Worley, Calder W. Womble, Everett C. Spelman, Sr., Robert E. Smith, Charles G. Reavis, Jr., Robert H. Pease, Buck Mickel and Howard Holderness, not individually, but as the Trustees of Wachovia Realty Investments, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 196

617 F.2d 196

HIDALGO PROPERTIES, INC., a Corporation, Plaintiff-Appellee, v. WACHOVIA MORTGAGE COMPANY, a Corporation, Wachovia Realty

Investments, a South Carolina Business Trust, and Edward

Warner, Hans W. Sanders, Bland W. Worley, Calder W. Womble,

Everett C. Spelman, Sr., Robert E. Smith, Charles G. Reavis,

Jr., Robert H. Pease, Buck Mickel and Howard Holderness, not

individually, but as the Trustees of Wachovia Realty

Investments, Defendants-Appellants.

No. 78-1240.

United States Court of Appeals,

Tenth Circuit.

Argued Nov. 29, 1979.

Decided Feb. 25, 1980.

Peter B. Bradford, Oklahoma City, Okl. (John E. Sargent, Jr., Oklahoma City, Okl., with him on the brief), of McAfee, Taft, Mark, Bond, Rucks & Woodruff, Oklahoma City, Okl., for defendants-appellants.

Carl Hughes of Hughes, Nelson & Blessington, Oklahoma City, Okl. (Gene Stipe of Stipe, Gossett, Stipe & Harper, Oklahoma City, Okl., of counsel), for plaintiff-appellee.

Before SETH, Chief Judge, McWILLIAMS and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

This appeal by defendants Wachovia Mortgage Company and Wachovia Realty Investments (Wachovia) is from a judgment entered in favor of plaintiff Hidalgo Properties, Inc. (Hidalgo), in the amount of $51,112.50. Jurisdiction is predicated upon complete diversity of citizenship in accordance with 28 U.S.C. § 1332. Hidalgo sued to recover payments made to Wachovia under a standby loan commitment, as well as related fees paid to Glen Justice Mortgage Company, a non-party entity. The case was tried to a jury, which returned a verdict in the full amount sought by Hidalgo. We affirm.

Hidalgo is a Texas corporation organized for the purpose of building an apartment complex in McAllen, Texas. Hidalgo is domesticated in Oklahoma, having its principal place of business in Oklahoma City, Oklahoma. Wachovia Mortgage Company is a South Carolina corporation with its principal place of business in Winston-Salem, North Carolina. It acts as the principal adviser to Wachovia Realty Investments, an unincorporated South Carolina business trust.

On December 3, 1973, Hidalgo and Wachovia executed a standby loan commitment agreement whereby Wachovia agreed to fund an interim loan upon completion of construction of the apartment complex. Glen Justice Mortgage Company acted as a broker for the loan commitment and Hidalgo paid it a brokerage fee of $14,500, and a fee of $17,612.50 for a "gap" commitment. Hidalgo also paid Wachovia a total of $29,000 in commitment fees under the agreement.

The purpose of the standby loan commitment agreement was to enable Hidalgo to obtain a construction loan from Corpus Christi Bank, and to allow Hidalgo time at the end of construction to find favorable long-term financing. The loan commitment was in the amount of $1,450,000 for a period of three years at an interest rate of 14%. The agreement provided that the commitment fee paid by Hidalgo to Wachovia was not refundable and that the loan was subject to the fulfillment of twenty-one terms and conditions.

On May 31, 1975, Wachovia was notified by the construction lender, Corpus Christi Bank, that construction of the apartment complex was completed. Closing instructions with regard to the standby loan were requested from Wachovia. At that time Wachovia notified Hidalgo that it would not fund the loan, asserting that Hidalgo had done nothing since December 3, 1973 to comply with the terms and conditions of the commitment. Thereafter Hidalgo brought this action to recover the fees it had paid to obtain the loan commitment.

Wachovia contends on appeal that the case should never have gone to the jury. Rather, it argues that its motion for a directed verdict should have been granted because the commitment fee was "non-refundable" under the terms of the loan agreement. It contends further that it was entitled to a directed verdict because Hidalgo failed to perform several conditions precedent required by the contract, thereby excusing Wachovia's performance. Wachovia also appeals the trial court's refusal to admit Wachovia's offer of proof on mitigation of damages, and the trial court's jury instructions.

I. The Denial of Directed Verdict

In a diversity case, the federal standard is applicable in determining whether the evidence is sufficient to go to the jury. Ward v. H. B. Zachry Construction Co., 570 F.2d 892 (10th Cir. 1978); Mr. Steak, Inc. v. River City Steak, Inc., 460 F.2d 666 (10th Cir. 1972). Under the federal rule, the trial judge may grant a motion for directed verdict only when all the inferences to be drawn from the evidence are so patently in favor of the moving party that reasonable men could not differ as to the conclusions to be drawn therefrom. Symons v. Mueller Co., 493 F.2d 972 (10th Cir. 1974); Taylor v. National Trailer Convoy, Inc., 433 F.2d 569 (10th Cir. 1970). All such evidence and inferences in this regard must be construed in the light most favorable to the party against whom the motion is directed. Wilkins v. Hogan, 425 F.2d 1022 (10th Cir. 1970).

Wachovia asserts that it was entitled to a directed verdict because the fee paid to it by Hidalgo was "non-refundable." We find this argument to be totally without merit. Hidalgo has chosen to forego recovery of the value of full performance by Wachovia, and instead seeks only to collect the expenses incurred by it in performing the contract. This is a proper measure of damages. Osborn v. Commanche Cattle Industries, Inc., 545 P.2d 827, 832 (Okl.Ct.App.1975); 5 Corbin, Contracts § 1031. See also United States v. Behan, 110 U.S. 338, 4 S.Ct. 81, 28 L.Ed. 168 (1833); L. Albert & Son v. Armstrong Rubber Co., 178 F.2d 182 (2d Cir. 1949). Wachovia cannot exempt itself from a suit to recover this element of damages by designating fees paid as non-refundable in an agreement which it prepared.

Wachovia urges alternatively that the directed verdict should have been granted because Hidalgo failed to perform conditions precedent under the contract, thereby justifying Wachovia's refusal to make the loan. Hidalgo asserts, on the other hand, that the conditions in question were either waived by Wachovia or their performance was excused by Wachovia's repudiation.

Wachovia cites three conditions which it claims Hidalgo failed to perform. First, paragraph 10 of the loan agreement provided that prior to funding Wachovia was to be presented with a final survey and title policy. Hidalgo testified that it had those documents prepared for presentation at the closing, and that any liens on the property would have been cleared so the closing could be completed. Rec., vol. II, at 226; vol. VI, at 131-132, 165-167.

A party is excused from tendering performance of conditions precedent when the other party repudiates the contract. Bu-Vi-Bar Petroleum Corp. v. Krow, 40 F.2d 488 (10th Cir. 1930); Midwest Engineering & Construction Co. v. Electric Regulator Corp., 435 P.2d 89 (Okl.1967). The evidence in this case presented an issue as to whether Hidalgo stood ready to tender performance and was excused by Wachovia's repudiation. There can be no directed verdict where there is evidence tending to support a party's theory of recovery. Yazzie v. Sullivent, 561 F.2d 183 (10th Cir. 1977); United States v. Fenix & Scisson, Inc., 360 F.2d 260 (10th Cir. 1966). We find that the trial judge properly allowed the disputed question of excuse of performance to go to the jury under Midwest, supra.

Second, paragraph 14 of the loan agreement required Wachovia to be furnished with a foundation completion certificate promptly upon completion of foundation. Under Oklahoma law, "a person may waive a right by conduct or acts which indicate an intention to relinquish it, or by such failure to insist upon it that the party is estopped to afterwards set it up against his adversary." Steiger v. Commerce Acceptance of Oklahoma City, Inc., 455 P.2d 81, 89 (Okl.1969), quoting Scott v. Signal Oil Co., 35 Okl. 172, 128 P. 694 (1912). See also Midwest Engineering & Construction Co. v. Electric Regulator Corp., supra.

There was ample evidence introduced at trial that Wachovia knew the foundations had been completed. Rec., vol. II, at 221-222; vol. VI, at 75-79. It was undisputed that its own employee had viewed the construction site after completion of the foundation, and had taken pictures of it. Id. Subsequently, Hidalgo and Wachovia exchanged letters regarding the release of a parcel of land from the security agreement, and Wachovia also wrote to inform Hidalgo that the Wachovia office was being moved to Dallas. Rec., vol. II, at 215-217. Despite its knowledge that the foundations were in place, Wachovia never mentioned Hidalgo's failure to furnish the foundation certificate, and did not inform Hidalgo that it considered such failure a breach sufficient to warrant denial of the commitment.

A party to a written contract who intends to assert a breach of its terms must act reasonably to inform the adverse party of the intended...