Berry v. Klinger
| Citation | 225 Va. 201,300 S.E.2d 792 |
| Decision Date | 11 March 1983 |
| Docket Number | No. 801686,801686 |
| Parties | Charles T. BERRY, Jr., et al. v. Charles V. KLINGER, et al. Record |
| Court | Supreme Court of Virginia |
Peter R. Kolker, Washington, D.C. (Wendy Manz, Zuckerman, Spaeder, Taylor & Kolker, Washington, D.C., on briefs), for appellants.
Dexter S. Odin, Fairfax (Odin, Feldman & Pittleman, Fairfax, on brief), for appellees.
Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, * STEPHENSON, and RUSSELL, JJ.
This appeal involves the construction of the language of a contract. The question presented is whether the language is unambiguous, to be given effect according to its plain meaning, or is ambiguous, requiring the admission of extrinsic evidence to show its intended meaning.
Charles T. Berry, Jr., and F. Everett Wright brought an action against Charles V. Klinger and Gloria Klinger to recover certain real estate taxes and expenses advanced in connection with a projected development of the Klingers' property. They relied on a written contract between the parties dated October 21, 1968. At a non-jury trial, the court held that the contractual language was unambiguous, found that Berry and Wright were not entitled to recover according to its terms, and granted the Klingers' motion to strike at the close of Berry and Wright's case. We affirm these rulings.
The facts are largely undisputed. In 1960, Mrs. Klinger was the owner of a tract of land containing 11.876 acres at McLean, in Fairfax County. She and Charles Klinger were young, recently married, inexperienced in real estate development, and not affluent. Mrs. Klinger's mother, Edna Perry, knew Berry and Wright, who were active builders and developers at the time. Mrs. Perry suggested that Berry and Wright seek a rezoning of the property and attempt to develop it in cooperation with the Klingers. Berry and Wright were then operating through a corporation named English Village Construction Company, which has since been dissolved. They sue as its successors-in-interest as well as in their own names.
Pursuant to an oral understanding, Berry and Wright caused English Village to advance funds for architectural and legal fees incurred with respect to a proposed rezoning application for the property. Also, beginning in the early 1960's, English Village undertook the payment of the annual real estate taxes.
In 1968, the parties reduced their agreement to writing. Berry had the contract prepared by a Maryland attorney who was doing title work for him. ("I had him do it because we saved an attorney fee.") The parties to the writing are the Klingers, the corporation ("English"), Berry, and Wright. It recites the Klingers' ownership of the property, called "the premises," and continues with the following recitals:
Klinger has requested Berry and Wright to assist them in developing and/or selling the premises.
English has advanced funds to pay real estate taxes and to pay for the preparation of site plan studies and architectural drawings in order to demonstrate how the property may be developed under various types of zoning.
English proposes to advance further funds in connection with an application for rezoning of the premises to the RT (Town House) category of the Fairfax County Zoning Ordinance.
English will be repaid all of the funds advanced by it for the sale or development of the premises.
Berry and Wright will furnish their personal services in connection with the application for rezoning, and in planning the development of the project.
The parties wish to set out in writing a formula under which English may recover its costs, and Berry and Wright may receive compensation for their services.
Numbered paragraphs follow, providing, respectively: (1) that Berry and Wright will apply for rezoning to a town-house use; (2) that English will advance funds for rezoning expenses and will also pay real estate taxes for the "duration of this agreement;" (3) that Berry and Wright will have the right of first refusal if "Klinger decides to sell the property;" (4) that in the event the Klingers should sell the property for $125,000 or less, and if Berry and Wright should fail to exercise their right of first refusal, the Klingers would repay to English all costs, expenses, and taxes advanced to date, but the remaining proceeds would belong to the Klingers; (5) if the property were sold to another party for more than $125,000, after repayment of costs, expenses, and taxes advanced by English, any remaining surplus in excess of $125,000 and the repayment would be divided two-thirds to the Klingers, one-sixth to Berry, and one-sixth to Wright; (6) if the property were rezoned, the Klingers would be allowed to participate in the proposed development as limited partners having a one-third interest. This paragraph makes no provision for the recovery of advances made by English.
The seventh, and final, paragraph, is the subject of the dispute. It provides:
7. If within ten (10) years from the date of this agreement Klinger has neither decided to sell the property or [sic] to develop it jointly with Berry and Wright, they will repay to English all of the funds advanced by English for real estate taxes, architects fees, professional fees, and other costs in connection with the rezoning.
The property was still owned by the Klingers at the time of trial, never having been rezoned, developed, or sold. Berry and Wright had made unsuccessful efforts to obtain rezoning and the Klingers had made unsuccessful efforts to sell. The property had been listed with brokers for many years. The Klingers had received offers, contingent upon rezoning, and had rejected them, but Berry and Wright make no serious contention that the Klingers unreasonably impeded the sale or development of the property. It is undisputed that economic conditions and terrain problems would make development of the land impracticable under existing zoning.
The Klingers assert that they were at all times ready and willing to sell the property, or to participate in a development if appropriate zoning could be obtained. Therefore, they contend, there is no evidence that they did not decide "to sell the property or to develop it jointly with Berry and Wright," so as to bring them within the effect of paragraph seven. They argue that under the plain meaning of the quoted language, Berry and Wright, in order to recover the costs, expenses, and taxes advanced by English, have the burden of showing that the Klingers, within the ten-year duration of the agreement, "elected to withdraw from the venture," either by making a conscious decision not to develop or sell, or by unreasonably withholding their assent to an appropriate development or sale. The evidence was to the contrary, the Klingers contend, and was therefore properly struck by the trial court.
Berry and Wright, in their amended motion for judgment, treated paragraph seven, upon which their claim is solely based, as if it did not contain the words "decided to." Their pleading paraphrases it: "Paragraph 7 of the written agreement provides that if, within 10 years from the date of the agreement, the parcel is neither sold nor developed jointly by the plaintiffs and the defendants, the plaintiffs would be entitled to be repaid 'all of the funds advanced by English ....' " (Emphasis added). At trial, Berry and Wright at first argued that paragraph seven was plain and unambiguous, and that the entire contract, read as a whole, manifested the intent that the funds advanced by English were to be repaid by the Klingers in any event. The words "decided to," they urged the court, "mean nothing." The court inquired whether Berry and Wright were contending that the words "decided to" should be "eliminated" as having "no meaning." Their counsel responded, "that is exactly right ... that is right." Later counsel argued: "[M]y contention as I mentioned to Your Honor before is that the word has got to be read out of there ...."
The court then pointed out to counsel that the parol evidence rule would not permit the introduction of extrinsic evidence to vary or explain the language unless it were found to be ambiguous, that is, "something which may have more than one meaning, or be subject to different interpretations." Counsel...
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