Lilley v. Gonzales
| Citation | 417 So.2d 161 |
| Parties | Tom LILLEY, Greg LeNoir and Edmund Zoghby v. V. A. GONZALES, a/k/a Victor Gonzales. 81-368. |
| Decision Date | 16 July 1982 |
| Court | Supreme Court of Alabama |
Mark B. Reed and Richard H. Sforzini, Jr. of McDermott, Slepian, Windom & Reed, Mobile, for appellants.
Thomas M. Galloway of Collins, Galloway & Smith, Mobile, for appellee.
Appellants Tom Lilley, Greg LeNoir, and Edmund Zoghby (Buyers) brought this action seeking specific performance of a contract for the sale of real property, or, in the alternative, damages of $18,000 from Appellee V. A. "Victor" Gonzales for his alleged breach of the same agreement. Both parties filed motions for summary judgment. The trial court granted Gonzales's motion while denying that of Buyers, who appeal.
We reverse.
Gonzales is the owner of a parcel of real property located at 309 West Indian Creek Drive in Mobile, Alabama. On May 29, 1981, Buyers submitted to Gonzales a written offer to purchase this property. One of the Buyers, Edmund Zoghby, a real estate agent for Roberts Brothers, Inc., of Mobile, acted as Buyers' representative. Gonzales thereafter evidenced his acceptance of Buyers' offer with his signature on that same instrument. Gonzales's signature was witnessed by Richard E. Miller, his agent in the proceedings.
The documentation used for the offer and acceptance was a standard preprinted purchase agreement form used by Roberts Brothers, Inc., for such transactions. The terms of the offer and acceptance were filled in on the preprinted form as appropriate. In addition, certain provisions of the agreement were deleted, and additional matters were handwritten in the margins. A typewritten addendum was attached to and made a part of the purchase agreement.
Both parties, in support of their motions for summary judgment, submitted to the trial court documents purporting to be copies of the original purchase agreement and addendum. While an apparent dispute exists between the parties as to which of the proffered documents represents a true and correct copy of the agreement, with modifications, executed by the parties, our examination of the record fails to disclose a genuine factual dispute relative to the issue here presented. The parties' purchase agreement provided that Buyers would pay Gonzales $33,500 for the property, to be paid as follows: $500 down as earnest money, which was paid by Buyers; $9,500 cash at closing; and a vendor's lien signed by Buyers for the remaining $23,500. The original terms of the vendor's lien as specifically enumerated in the purchase agreement were that it was to be paid at the rate of $225 per month for ten years; with interest at 12% per annum; with the unpaid balance to be entirely due at the end of ten years; and no penalty for prepayment at any time.
Closing was set for on or before July 2, 1981. Prior to July 2, 1981, Gonzales delivered to Roberts Brothers a vendor's lien deed for Buyers' signatures. Incorporated therein was the following:
"If at any time the Grantees agree to, and or, convey, or alienate any or all of their interest in the above described property in any manner the entire balance of principal plus interest remaining thereon shall become immediately due and payable at the option of the grantor, his heirs or assigns."
Such provision is commonly referred to as a "due on sale" clause.
Close examination of the purchase agreement, signed by all parties, reveals a complete absence of any reference to a due on sale clause as being or becoming a part of the vendor's lien deed. Gonzales, in his supporting affidavit for summary judgment, states that he did
Buyers contend that as of July 2, 1981, they stood ready to close the transaction, but that Gonzales refused to execute a vendor's lien deed without a due on sale clause incorporated therein. Gonzales's attorneys tendered the vendor's lien deed with its due on sale clause to the office of Roberts Brothers Realty, Inc., on July 2, 1981. Thereafter, according to Gonzales, he instructed his attorneys to cancel the transaction upon Buyers' refusal to pay the $9,500 due at closing and to sign the vendor's lien deed as amended. They cancelled the transaction by letter dated July 10, 1981.
Subsequent to the parties' execution of their purchase agreement, and prior to the date of closing specified therein, Buyers agreed to sell the aforementioned real property to a third party for the sum of $48,500. Buyers allege that, as a result of Gonzales's refusal to consummate the transaction, they lost that sale, and they therefore seek $15,000, representing the difference in the price Buyers were to pay Gonzales ($33,500) and the amount they were to receive from their resale ($48,500). Additionally, Buyers seek damages of $3,000 for time and monies allegedly expended in connection with these endeavors.
Gonzales's motion for summary judgment was founded on the following: ...
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