Moore v. Lovelace

• Decision Date: 23 April 1982
• Citation: 413 So.2d 1100
• Parties: Arnold R. MOORE v. Dorothy Howard LOVELACE, et al. 81-124.
• Court: Alabama Supreme Court

Page 1100

413 So.2d 1100

Arnold R. MOORE v. Dorothy Howard LOVELACE, et al.

81-124.

Supreme Court of Alabama.

April 23, 1982.

James G. Stevens, Birmingham, for appellant.

Frank M. Bainbridge of Porterfield, Scholl, Bainbridge, Mims, Clark & Harper, Birmingham, for appellees.

BEATTY, Justice.

Plaintiff, Arnold R. Moore, appeals from an adverse judgment rendered against him in this action seeking specific performance of a contract in which defendants, Dorothy and Larry Lovelace, agreed to sell and convey certain tracts of real property in Jefferson County. We affirm.

Defendants, Dorothy and Larry Lovelace, entered into a real estate sales contract with plaintiff, who is a licensed real estate broker, on April 10, 1979. The contract, which was drafted by plaintiff, concerned two parcels of land on Old Rocky Ridge Road in Birmingham, Alabama, which defendants agreed to sell to plaintiff. One parcel contained approximately .46 acres and the other parcel contained approximately 3 acres. The contract provided for the sale to be closed on or before October 10, 1979, but plaintiff had the option to extend the contract an additional six months if needed in order to get certain permits. The option was exercised, thus extending the closing date until April 10, 1980. The parties executed an addendum to the contract on September 17, 1979, which extended the closing date an additional six months until October 10, 1980.

By addendum dated June 15, 1979, the parties agreed that the two parcels could be purchased at different times with a deed and mortgage being given on each parcel independent of the other. The .46-acre parcel was sold pursuant to the terms of the contract in June 1980.

On June 23, 1980, plaintiff attempted to obtain an additional six-month extension of the closing date for the parcel of 3 acres, from October 10, 1980, to April 10, 1981. Defendants rejected the proposal. Thereafter, plaintiff sought another modification of the contract by seeking an increase in his real estate commission on the sale from 10% to 15%. Defendants refused to increase plaintiff's commission. On September 22, 1980, plaintiff attempted to get the defendants to agree to increase his commission on the sale from 10% to 12% and to release the land from the contemplated mortgage in a piecemeal fashion. Defendants refused to accept either of these propositions.

On October 7, 1980, three days before the closing date, plaintiff's attorney delivered him the closing documents accompanied by a cover letter which plaintiff mailed to defendants on October 8 and which defendants received October 11, 1980. In addition to being received by defendants one day after the contract expired, the closing documents were not in compliance with other particular terms of the contract, e.g., mathematical inaccuracies in purchase price and mortgage amount. Defendants notified plaintiff that they would not execute the closing documents because they were received a day late.

Plaintiff filed an action for specific performance, and the trial court, after hearing testimony ore tenus, made findings of fact and conclusions of law, and entered a decree which reads, in part, as follows:

"There are several problems concerning the Plaintiff's attempt to close the transaction. First, as mentioned above, the documents were not received by the Defendants until the day after the term of the Contract expired. Second, there had been no discussion as to the method of closing the transaction and the letter from Plaintiff's attorney dated October 7, 1980 (Defendants' Exhibit 9) was, at best, an attempt to set-up a closing through escrow in his office. Thus, even if the closing documents had been received during the term of the Contract, the closing itself would have occurred on some later date. Third, there was never a tender of the purchase price to the Defendants. This would have been made through an escrow closing, however, there was never an agreement to close the transaction through escrow, and no actual offer of the purchase price has been made by the Plaintiff. Fourth, the closing documents did not accurately reflect the terms of the Contract....

"...

"The Court, therefore, finds that, considering the fact that the property had already been tied up for 18 months, the actions of the Defendants in refusing to further alter the provisions of the Contract or to extend its terms, made time of the essence of the Contract and that upon the failure of the Plaintiff to at least tender closing documents to the Defendants prior to the expiration of the term of the Contract on October 10, 1980, the Contract terminated by its own provisions. The Court further finds, as a separate and independent ground for its decision, that the purported closing documents contained enough material errors so that they were not in substantial compliance...