Dewerd v. Bushfield
| Citation | 38 V.I. 202 |
| Decision Date | 30 January 1998 |
| Docket Number | D.C. CIV. APP. NO. 1996–159. |
| Parties | George DEWERD Appellant, v. Charles BUSHFIELD, Appellee. |
| Court | U.S. District Court — Virgin Islands |
OPINION TEXT STARTS HERE
Vendor sued purchaser of development property to enforce provision of purchase-money mortgage note that purchaser pay annually one-half of gross selling price of all lots sold that year. The Territorial Court of the Virgin Islands granted purchaser partial summary judgment on ground of laches, but the District Court reversed, 1995 WL 455833. On remand, the Territorial Court, Ishmael A. Meyers, J., entered judgment for vendor after bench trial. Purchaser appealed. The three–judge District Court held that: (1) vendor could seek prejudgment interest as remedy for purchaser's breach of purchase-money mortgage note; (2) vendor was not required to give purchaser notice of default; and (3) vendor had not waived right to enforce note.
Affirmed. George Ethridge, St. Thomas, U.S.V.I., for Appellant.
Michael C. Dunston, St. Thomas, U.S.V.I., for Appellee.
BEFORE: RAYMOND L. FINCH, District Court Judge for the District of the Virgin Islands; STANLEY S. BROTMAN, Senior District Court Judge for the District of New Jersey, Sitting by Designation; and ALPHONSO G. ANDREWS, Jr., Territorial Court Judge of the Virgin Islands, Division of St. Croix, Sitting by Designation.
Appellant Charles Bushfield (“Bushfield”) appeals the decision of the Territorial Court (“trial court”) awarding Appellee George DeWerd (“DeWerd”) prejudgment interest. For the reasons stated herein the trial court's decision is affirmed.
On February 5, 1981, Bushfield entered into a contract to purchase a piece of property (“Property”) 1 for $550,000 from DeWerd.2 Bushfield paid $300,000 at the closing and executed a Purchase Money Mortgage Note (“Note”) that required him to pay the additional $250,000 over time.3 The Note was secured by a First Priority Purchase Money Mortgage (“Mortgage”) on the land.4
This dispute has centered on the terms of the Note and Mortgage. Since Bushfield planned to subdivide the property, the Note contained special payment terms. The Note provided that Bushfield was to pay:
the sum of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00), which includes principal and precalculated interest at the rate of nine percent (9%) per annum. Payments of said principal and interest shall be made in ten (10) equal annual installments of a minimum of TWENTY FIVE THOUSAND DOLLARS ($25,000.00) each commencing one (1) year from the date hereof and on each anniversary date of this note until paid in full. Further, the undersigned maker of this note intends to develop and subdivide the real property subject to the accompanying First Priority Purchase Money Mortgage .... The maker agrees to pay the payee at the closing of any sale of such subdivided lots or parcels fifty percent (50%) of the gross selling price of such lots or parcels. The TWENTY FIVE THOUSAND DOLLARS ($25,000.00) annual installment referred to above shall be only the minimum amount payable per annum on this mortgage note. All such aforedescribed payments, whether from the sale of lots and parcels or otherwise when paid to the payee shall be subtracted from the balance due on this note until its indebtedness is paid in full.
See Note at 1. The Mortgage also contained similar language. Therefore, under the terms of the Note and Mortgage, Bushfield was to pay DeWerd each year the greater of either 50% of the gross selling price (“50% payment”) of all lots sold or $25,000. In addition, the Mortgage mandated that DeWerd release a lot from the mortgage (“partial release”) after he received the 50% payment pertaining to that lot.
The Mortgage provided that Bushfield would be in “default” if he failed to pay the sums due under the terms of the Note within thirty days of their due date. See Mortgage at 4. The Mortgage further provided that, where default occurred and was not remedied, DeWerd had the option to accelerate the payment of the loan by “declar[ing] the whole of the sum evidenced by the [Note and Mortgage] to become immediately due and payable.” Id.
Between 1982 and 1985, Bushfield did not sell any lots and made the expected annual payments of $25,000. Then, between November 10, 1986 and August 7, 1987, he sold his first ten lots. He continued, however, to make annual payments of $25,000 to DeWerd, and did not make the 50% payments that the Note required him to make. Despite Bushfield's failure to make the required 50% payments, DeWerd still delivered to him the partial releases in order to allow the individual lot closings to occur.5
Later, it was determined that the partial releases were not recordable since they had been improperly executed. On October 27, 1988, DeWerd executed and delivered a composite release covering all seventeen lots. Bushfield testified that he gave DeWerd an advance payment on a future annual $25,000 installment in consideration for this composite release.
In April 1989, the U.S. Marshal served Bushfield with a Writ of Garnishment against DeWerd. DeWerd allegedly demanded that Bushfield ignore the Writ and pay all money due to him. After learning that Bushfield had obeyed the Writ, DeWerd filed suit on August 1, 1989, attempting to enforce the 50% payment provision.
Both parties moved for summary judgment, and a hearing was conducted on June 28, 1993. The trial court granted Bushfield's motion for partial summary judgment, concluding that DeWerd's claims were barred by laches. The Appellate Division, however, vacated its grant of summary judgment and remanded for further proceedings after concluding that the lower court had abused its discretion.
On August 21, 1995, the Honorable Ishmael A. Meyers conducted a bench trial. On July 2, 1996, he entered judgment in favor of DeWerd for $32,213.49. This amount represented the prejudgment interest, at the legal rate of 9% per annum, on one half of the sales price of each lot sold between November 10, 1986 and August 7, 1987,6 from the respective dates of each lot sale until the date of the judgment.
Bushfield raises three issues in this appeal: whether the trial court erred (1) in awarding prejudgment interest on the 50% payments; (2) in finding that the Mortgage did not contain any language requiring DeWerd to give Bushfield notice of default; and (3) in finding that DeWerd did not waive his right to the 50% payments.
We review a trial court's decision to grant prejudgment interest for abuse of discretion. United States v. American Ins. Co., 18 F.3d 1104, 1108 (3d Cir.1994). In this case, the trial court exercised its discretion to award DeWerd prejudgment interest on the 50% payments “at the legal rate of nine percent (9%) per annum.” Findings of Fact and Conclusions of Law (“FFCL”) at 5. Title 11 V.I.C. § 951(a) provides that:
The [legal] rate of interest shall be nine (9%) per centum [sic] per annum on-
(1) all monies which have become due;
(2) money received to the use of another and retained beyond a reasonable time without the owner's consent, either express or implied;
(3) money due upon the settlement of matured accounts from the day the balance is ascertained; and
(4) money due or to become due where there is a contract and no rate is specified.
11 V.I.C. § 951(a). Although the trial court did not explicitly state the statutory grounds for its prejudgment interest award, it apparently relied on § 951(a)(4). The court found that the note was “an enforceable contract representing the principal and interest to be paid.” FFCL at 4. It also found that each failure by Bushfield to make the requisite 50% payment constituted a breach of contract. Id. The court proceeded to grant prejudgment interest at the legal rate because (1) there was a contract; (2) there was money due under the contract that was not paid; and (3) the contract did not specify a rate of interest for past due funds.
Bushfield contends that the trial court abused its discretion in awarding DeWerd prejudgment interest. He argues that the award contravened the parties' intentions that the acceleration of the payment of the loan act as the sole remedy in case of default.Bushfield provides three bases for this argument: (1) the Note and Mortgage provided for only one remedy in case of default—acceleration; (2) there was no provision in the Note or Mortgage for a late penalty or interest charge on the 50% payments although such provisions were common in other mortgages; and (3) the Note already included precalculated interest at a rate of nine percent and, therefore, awarding DeWerd further interest would mean assessing Bushfield “double interest” on his indebtedness.
Bushfield's argument fails for several reasons. Most importantly, the Note states that:
The holder or holders of this note are entitled to the benefits of such mortgage and contract and may enforce the agreements contained therein and may exercise the remedies which are provided for thereby or otherwise available in respect thereto.
See Note at 2 (emphasis added). The Note explicitly provides that DeWerd could seek other remedies for default in addition to those listed in Mortgage and the Note. Furthermore, given this direct evidence that the parties' did not intend to limit themselves to the remedies provided in the Mortgage and Note, the fact that neither document explicitly provided for any additional remedies, such as a late penalty or interest charge, in case of default is insignificant.
Bushfield also asserts that awarding prejudgment interest would contravene the parties intent because it leads to his being unfairly charged “double interest” on the principal of the Note. He contends that he will be charged “double interest” because he would have to pay “interest upon an amount which already contained pre-calculated interest.”
Bushfield's final basis...
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