James H. Moore & Associates Realty, Inc. v. Arrowhead at Vail

• Decision Date: 30 June 1994
• Docket Number: Nos. 92CA1501,93CA0031,s. 92CA1501
• Citation: 892 P.2d 367
• Parties: JAMES H. MOORE & ASSOCIATES REALTY, INC., a Colorado corporation, Plaintiff-Appellant, v. ARROWHEAD AT VAIL, a Colorado Joint Venture, and Arrowhead at Vail, Inc., a Delaware corporation, Counterclaimants and Defendants-Appellees, and James H. Moore, III, Counterclaim Defendant and Appellant. . III
• Court: Colorado Court of Appeals

Page 367

892 P.2d 367

JAMES H. MOORE & ASSOCIATES REALTY, INC., a Colorado

corporation, Plaintiff-Appellant, v. ARROWHEAD AT VAIL, a Colorado Joint Venture, and Arrowhead

at Vail, Inc., a Delaware corporation,

Counterclaimants and Defendants-Appellees,

and

James H. Moore, III, Counterclaim Defendant and Appellant.

Nos. 92CA1501, 93CA0031.

Colorado Court of Appeals,

Div. III.

June 30, 1994.

As Modified on Denial of Rehearing

Aug. 25, 1994.

Certiorari Denied March 20, 1995.

Cooper & Kelley, P.C., Thomas B. Kelley, John R. Mann, Denver, for plaintiff-appellant and counterclaim defendant and appellant.

Ireland, Stapleton, Pryor & Pascoe, P.C., Tucker K. Trautman, Scot M. Peterson, Denver, for counterclaimants and defendants-appellees.

Opinion by Judge CRISWELL.

In a dispute relating to two alleged agreements respecting real estate developments near Vail, plaintiffs, James H. Moore & Associates Realty, Inc., and James H. Moore, III, (collectively Moore) appeal the summary judgment entered in favor of defendants, Arrowhead at Vail Joint Venture and Arrowhead at Vail, Inc., (collectively Arrowhead). Moore also appeals the judgment entered in favor of Arrowhead on its counterclaim for abuse of process. We affirm in part, reverse in part, and remand for further proceedings.

Moore has been involved in the construction of residential and commercial projects in the Vail area. Arrowhead is a joint venture which developed the Arrowhead at Vail resort community. Prior to the relevant events considered here, these parties had successfully implemented an agreement under which Moore developed a condominium project on a parcel purchased from Arrowhead.

Later, the parties commenced negotiations for Moore to complete additional phases of this development on several adjacent parcels (the Second Seasons project). In November 1988, Arrowhead's president signed a letter of intent drafted by Moore's counsel which summarized the basis upon which Moore was to purchase one lot from Arrowhead and was to be receive an option to purchase a second lot for this purpose. Moore asserts that, several weeks later, the parties also orally agreed that Moore was to be granted an additional option on a third lot under the same terms as were summarized in the previous letter of intent. This second agreement was allegedly confirmed by another letter sent by Arrowhead's president to Arrowhead's attorney with a copy provided to Moore.

However, while the parties later exchanged various drafts of a formal purchase agreement for this Second Seasons project, no such agreement, reflecting the entire Second Seasons transaction, was ever signed by the parties.

At about this time, the parties also began negotiations with respect to Moore's purchase of three additional lots from Arrowhead for another retail and residential development (the Village Court project). Because the successful development of the Village Court retail space was necessary in order successfully to market the Second Seasons residential units, the parties purportedly agreed to put the Second Seasons project on hold until the Village Court was developed.

Moore asserts that, by mid-July 1989, there was an oral agreement on all essential terms for the Village Court project; such agreement is allegedly reflected in a July 1989 letter of intent and by two later letters from Arrowhead to its counsel.

The July 1989 letter of intent provided that, in the absence of any express agreement to the contrary, the Village Court purchase agreement would be subject to the same terms as contained in a former contract between the parties. It also provided, however, that their agreement would not be binding unless a formal written agreement was executed by the parties within 30 days of the date of the letter of intent. The letter of intent was not signed by an Arrowhead representative; however, in later letters to its counsel, Arrowhead referred to that letter and requested that its terms be incorporated into a formal agreement.

It is uncontroverted that the parties continued to negotiate with respect to the Village Court project for several months after the 30-day period referred to in the letter of intent. And, during this period of negotiations Arrowhead and Moore undertook several actions which contemplated the successful implementation of an agreement between them.

The parties exchanged several drafts of a formal agreement, the last in late October 1989, which proposed some changes in the terms reflected in the Village Court letter of intent. However, no such formal document was ever signed by the parties.

In November, negotiations between the parties became strained because of their disagreement with respect to the subordination of liens on the property. In early December, Arrowhead notified Moore that it considered their negotiations at an end and that it was withdrawing any offer to sell the property to Moore.

In April 1990, after learning that Arrowhead was negotiating to sell the same property to another developer, Moore filed the complaint in this action. That complaint contained, inter alia, claims for specific performance or damages for breach of the two purported agreements. And, in conjunction with the filing of the complaint, Moore recorded notices of lis pendens with respect to the realty at issue.

In response, Arrowhead asserted a counterclaim against Moore for abuse of process and slander of title, both of which were based upon Moore's filing of the notices of lis pendens.

After the parties had engaged in discovery efforts, the trial court granted summary judgment in favor of Arrowhead, dismissing all of Moore's claims for relief. Arrowhead then moved for release of the lis pendens, which Moore released by disclaimer shortly thereafter.

Arrowhead's counterclaims were considered in a bench trial, after which the trial court dismissed Arrowhead's slander of title claim, but entered judgment in its favor on the abuse of process claim. It awarded Arrowhead some $1,900,000 as damages under this claim, including attorney fees incurred in defense of Moore's claims and in the trial of its counterclaim. Such fees were also awarded against certain of Moore's counsel.

I.

Moore first argues that the trial court erred in granting summary judgment in favor of Arrowhead on the alleged Second Seasons and Village Court contracts. We agree in part.

In reviewing the propriety of the trial court's grant of summary judgment, we must determine whether there is a clear showing that no issue of material fact exists and whether Arrowhead is, therefore, entitled to judgment as a matter of law. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988); Gifford v. City of Colorado Sprinqs, 815 P.2d 1008 (Colo.App.1991). In order to make this determination, we must resolve all doubts as to the existence of material factual issues against Arrowhead and give to Moore the benefit of any favorable inference that may be drawn from the disclosed facts. Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo.1987).

A. The Alleged Second Seasons Agreement.

Because both alleged contracts here were for the conveyance of interests in land, it was required that there be writings expressing the consideration for each sale, signed by Arrowhead. Section 38-10-108, C.R.S. (Repl.Vol. 16A). In dismissing Moore's claim with respect to the Second Seasons realty, the trial court concluded that the two writings relied upon by Moore (the November 1988 letter of intent and a later letter from Arrowhead's vice-president) were too indefinite to allow their enforcement. We agree with this conclusion.

The November 1988 letter of intent provides that Moore is to purchase lot 8 and is to be granted an option to purchase lot 7, to be exercised within one year after its purchase of lot 8. No mention is made regarding lot 6 in this letter.

The second letter makes fleeting reference to an option to purchase lot 6, but sets forth no terms for the exercise of any such option. Further, it does not state that the terms for this option were to be the same terms as the parties had purportedly established for the option for lot 7.

Likewise, the letter of intent fails to set forth the amount of any purchase price for the acquisition of either lot 7 or lot 8. While the letter provides that Moore was to pay a specified price for each condominium unit that Moore was to build on the lot, it neither establishes the number of units to be built by Moore nor provides any formula for determining such number. It is impossible to determine from this document, therefore, the total purchase price to be paid for the lot to be conveyed.

Hence, because these two documents, whether considered singly or collectively, omitted material terms, they cannot be enforced. See Ross v. Purse, 17 Colo. 24, 28 P. 473 (1891); compare Aceste v. Wiebusch, 74 A.D.2d 810, 425 N.Y.S.2d 369 (1980) (term "$89,000 net" was not sufficient expression of price to satisfy statute of frauds, as there was nothing further in memorandum to explain meaning) with Dahm v. Miele, 136 A.D.2d 586, 523 N.Y.S.2d 851 (1988) (term, which set forth formula by which agreed price could be readily ascertained, satisfied statute of frauds).

B. The Alleged Village Court Contract

Moore next contends that the trial court erred in granting summary judgment for Arrowhead on its claims based on the alleged Village Court contract. We agree.

The primary thrust of Arrowhead's motion for summary judgment was that no enforceable contract for the Village Court property had been formed because the parties never executed the formal written agreement called for by the letter of intent. The letter of intent provides that:

Unless an Agreement of Purchase and Sale shall be entered into within 30 days of the date of full execution hereof, incorporating the terms as stated herein with such modifications as shall be mutually acceptable to the parties hereto, this Letter of Intent shall become null and void...