Landa v. Century 21 Simmons & Co., Inc.

• Citation: 237 Va. 374,377 S.E.2d 416
• Decision Date: 03 March 1989
• Docket Number: 871030,Nos. 870122,s. 870122
• Court: Supreme Court of Virginia
• Parties: Mark LANDA, et al. v. CENTURY 21 SIMMONS & CO., INC., et al. (Two Cases). Record

Page 416

377 S.E.2d 416

237 Va. 374

Mark LANDA, et al. v. CENTURY 21 SIMMONS & CO., INC., et al. (Two Cases).

Record Nos. 870122, 871030.

Supreme Court of Virginia.

March 3, 1989.

Denis C. Englisby (Englisby, Barnes & Allen, Chesterfield, on brief), for appellants.

Frank A. Porter, Chesterfield (Bernard A. Gill, Jr., Richmond, on brief), for appellee Century 21 Simmons & Company, Inc.

Oliver D. Rudy (James E. Evans, Rudy, Keown, Evans & Mikula, Chesterfield, on brief), for appellee Zane Davis.

No brief or argument for appellee Clinton F. Peterson, Executor of the Estate of Mary B. Baker.

Present: All the Justices.

THOMAS, Justice.

These appeals concern a dispute over a 17-acre tract of land located in Chesterfield County. The land is part of the estate of Mary Belle Baker, deceased. Her executor, Clinton F. Peterson, entered into two separate contracts concerning this one tract of land. The first contract was with Mark and Francine Landa (the Landas). The second contract was with Zane G. Davis.

The Landas and Davis filed separate suits against Peterson demanding that he convey the 17-acre tract. On Peterson's motion, the two cases were "consolidated for trial." The matter was tried by the court sitting without a jury.

At the conclusion of an ore tenus hearing, the trial court ruled that the Landas were not entitled to specific performance because the contract on which they relied was uncertain and indefinite. The trial court dismissed their bill of complaint. They appealed this adverse ruling and that appeal is the subject of Record No. 870122. Thereafter, Davis moved the trial court to enter an order granting him specific performance regarding the 17 acres; this order was entered over the Landas' objection. The Landas appealed; that appeal is the subject of Record No. 871030.

I

The first issue is whether the two proceedings were truly consolidated in the trial court, thus turning the two proceedings into one or whether the two proceedings were simply tried together, thus leaving each proceeding independent of the other. The parties submit that the resolution of this question has important consequences for the proper disposition of these appeals.

If the two proceedings were consolidated, then the Landas' appeal of the order which dismissed them from the suit brought the entire case under the power of this Court and deprived the trial court of any further power to act during the pendency of the appeal. This means that if there was a consolidation, then the trial court's order granting specific performance to Davis was a nullity.

On the other hand, if the two proceedings were merely tried together, they retained their separate identities. This means that the Landas, who were not parties to the Davis suit, would have no basis upon which to complain about the trial court's decision to award specific performance to Davis. Consequently, we would have to dismiss the appeal in Record No. 871030 because there would be no aggrieved party.

The facts regarding consolidation are as follows: On March 4, 1986, the Landas filed a bill of complaint against Century 21 Simmons & Co., Inc. (Century 21), and against Peterson as executor of the Baker estate. The Landas alleged that the defendants had entered into a contract which provided that the Landas were to have "first option on remaining tract. Notice must be in writing to 3018 Boulevard," Colonial Heights. The Landas alleged further that the defendants breached their contract "by obtaining a contract on the sale of the remaining tract without giving the first option to the plaintiffs as required by the contract." The Landas demanded specific performance.

On May 21, 1986, Davis filed a bill of complaint against Peterson, both individually and in his role as executor of the Baker estate. Davis also sued Century 21. Davis alleged, among other things, that by contract dated October 8, 1985, Peterson agreed to sell him a "parcel of land containing 17 acres, more or less." Davis alleged that despite the terms of the contract, Peterson refused to convey the property. Davis demanded specific performance.

Peterson moved that the two proceedings be consolidated for trial because both suits requested specific performance and both suits involved "the same 17 acre parcel of real estate." The trial court granted the motion, ordering that "the two above styled chancery matters be consolidated for trial." Throughout the trial court proceedings, the suits retained their separate chancery numbers. At no point were they ordered consolidated in the sense of creating one case.

In our opinion, the two trial court proceedings were heard together as opposed to being truly consolidated. Thus, the two suits retained their separate identities.

II

Because we have held that the two suits were not converted into one, we must hold further that the Landas had no right to appeal the judgment in Davis v. Peterson, Record No. 871030. The appeal in that suit is dismissed for lack of an aggrieved party.

We may still adjudicate the Landas' claim, however. We have before us in Record No. 870122 the seller and the Landas who claim the disputed 17-acre tract. We will proceed to adjudicate the rights of those parties, the decision in Davis v. Peterson notwithstanding. ^*

III

We turn now to the question whether the trial court erred in ruling that the contract provision on which the Landas relied was too indefinite and uncertain to be specifically enforced by a court of equity. In order properly to resolve this issue, we must--upon familiar principles--review the facts in the light most favorable to the Landas.

Peterson enlisted the aid of his son-in-law, Cecil W. Simmons of Century 21 to help sell land owned by the Baker estate. Simmons contacted the Landas about purchasing all of the Baker land. The Landas expressed an interest but made clear they had certain financial limitations. Simmons suggested that the Landas execute a contract to purchase a specific amount of land which they could afford and take a first option on the remaining land. According to Mark Landa, Simmons said, "well, why don't we work it, we will cut a piece of it out right now, give you a first option on that piece, and then you think about it, see what you want to do, and then if anybody else comes up and wants to buy it, I will relay this option to you at this time."

Based on Simmons' recommendation, on July 31, 1985, the Landas entered into a contract with Peterson, prepared by Simmons. That contract was to purchase approximately 70 acres of land from the Baker estate. Simmons added in his own handwriting the following language which was also part of the contract: "Purchaser to have first option on remaining tract. Notice must be in writing to 3018 Boulevard, Col. Hgts." The testimony was uncontradicted that the term "remaining tract" referred to the 17 acres, more or less, situated near the 70-acre tract which the Landas had agreed to purchase. Further, there is no dispute that the address set forth in the provision was the Landas' business address.

The sale of the 70 acres closed on October 14, 1985. Thereafter, the Landas learned that Peterson had entered into a contract with a third party to sell the 17-acre tract on which they claimed a "first option."

The Landas retained counsel who filed suit on March 4, 1986, claiming that the "first option" contract had been breached. In response to their bill of complaint, the Landas received a letter from Peterson dated "March, 1986." That letter stated as follows:

This is your written notice of another offer to purchase the remaining acreage (17 + -) of the Mary Baker Estate. The offer is $100,000 for the remainder. Closing is 15 days after obtaining M-1 zoning and payment effectively is cash based on a short term development plan.

Buyer agrees to pay all expenses of procuring industrial zoning.

If I am not contacted in writing within five days the property will be conveyed under this offer and any other of the estate choosing.

The Landas' counsel responded with a letter dated March 20, 1986, requesting a copy of the offer.

By letter dated April 10, 1986, a copy of a contract to purchase was forwarded to the Landas' counsel. This document was not merely an offer. It was a contract of purchase dated October 8, 1985, and signed by the purchaser, Zane Davis and the seller, Peterson. On April 14, 1986, the Landas' counsel notified Peterson's counsel that the Landas had decided to exercise their first option regarding the October 8, 1985 contract.

The April 14 letter from the Landas' counsel was followed by another letter dated April 25, 1986. In that letter the Landas tendered a $5,000 deposit to show "good faith" even though the Davis contract called for only a $1,000 deposit. Thereafter, in a letter dated May 15, 1986, the Landas expressly waived several of the conditions that Davis had required in his contract. The effect of these waivers was to make it easier for Peterson to convey to the Landas. After the May 15 letter, the Landas got no further response from Peterson. Davis filed suit on May 21, 1986.

Mark Landa testified that he was never told by anyone that there was a set time in which his "first option" had to be exercised. He said that at the closing on the 70-acre tract he told Simmons that though he could not purchase all the Baker land at that moment, he was still interested in it.

Simmons admitted that he did not advise the Landas that the "first option" would terminate at any particular time. He also admitted that at the October 14 closing with the Landas, he did not advise them of the October 8 contract with Davis. Simmons acknowledged that the "first option" provision meant that the seller would have to give the Landas notice before the Landas were required to act.

When the Landas rested, the trial court ruled that the "first option" was incomplete and uncertain. This was error. On appeal, Davis contends the trial court's decision was...