Ricchio v. Oberst

• Decision Date: 29 March 1977
• Docket Number: No. 75-345,75-345
• Citation: 251 N.W.2d 781,76 Wis. 2d 545
• Parties: Dominic Alex RICCHIO, Appellant, v. Edward J. OBERST and Lucille A. Oberst, Respondent.
• Court: Wisconsin Supreme Court

Page 781

251 N.W.2d 781

76 Wis.2d 545

Dominic Alex RICCHIO, Appellant, v.Edward J. OBERST and Lucille A. Oberst, Respondent.

No. 75-345.

Supreme Court of Wisconsin.

Submitted on Briefs March 3, 1977.

Decided March 29, 1977.

Syllabus by the Court

This is a specific performance action brought by the buyer of real estate against the sellers.Upon the defendants' motion for summary judgment, judgment was entered dismissing the plaintiff's complaint.The plaintiff now appeals to this court.

Baumgartner & Anderson, Kenosha, on brief, and James F. Kracmer, Silver Lake, of counsel, for appellant.

Lepp & Lepp, Kenosha, on brief, for respondents.

BEILFUSS, Chief Justice.

On May 28, 1972, the plaintiff executed an offer to purchase certain real estate owned by the defendants in Kenosha, Wisconsin.The offer to purchase specified the price of $26,000 and, among other things, provided the following as a condition of the sale:

"It is agreed that the closing shall take place on or after June 1, 1973, but not later than June 30, 1973."

The sale was not made contingent upon the plaintiff obtaining financing.The offer to purchase, drafted on the standard legal form, specified that the transaction was to be closed at a named attorney's office on or before June 30, 1973.Time was specifically made of the essence with respect to occupancy of the premises which, according to the offer to purchase, would be given to the buyer 30 days after closing.The offer to purchase provided for a $1,000 down payment with default provisions stating that if the buyer failed to carry out the agreement, all money paid would at the option of the seller be forfeited as liquidated damages and would be paid or retained by the seller.

The defendant-sellers accepted the offer to purchase apparently the same day the plaintiff submitted it; however, the real estate transaction was never consummated.Subsequently the buyer brought this specific performance action to enforce the offer to purchase agreement and require the defendants to convey the real estate to him.

In his complaint for specific performance of the written agreement, the plaintiff asserted that he has performed all of the conditions required of him by the offer to purchase and that in reliance upon the agreement, he entered into possession of a portion of the premises and expended the sum of $2,811.36 for improvements thereon (such improvements included paving of a driveway and installing a fence).The plaintiff also asserted that:

" . . . the plaintiff has always been ready, willing and able and still is ready, willing and able to pay the balance of $25,000 due on said purchase price . . . "

He also alleged that he has made repeated demands on the defendants to fulfill and complete the written agreement but that the defendants have continually failed and refused to honor such agreement.

In response to this complaint, the defendants served and filed an answer and an affirmative defense specifically denying that the plaintiff has performed all the conditions required of him by the agreement and specifically alleging that the plaintiff has failed to tender the purchase price to them.In their answer, the defendants also alleged that the paving of the driveway was done against their express wishes.The defendants also denied that the plaintiff made demands on them to convey the property, and specifically alleged that there had been numerous discussions between the parties regarding the transfer of the property, but that as of December, 1974, the plaintiff had not been able to secure the required financing.

As an affirmative defense, the defendants alleged that although the agreement called for a closing before June 30, 1973, they agreed subsequent to that date to extend the closing to the end of August, 1973; but, nevertheless at that time, the plaintiff was still unable or unwilling to produce the purchase price.They alleged that at the end of August, 1973, the agreement was held to be void because of the plaintiff's inability to secure the required financing.

The defendants also asserted that subsequent negotiations between the parties resulted in an oral agreement between them in June of 1974 concerning the purchase of the property by the plaintiff for its then current appraised value, which was $32,000.The defendants alleged that they orally agreed to convey the property to the plaintiff for the sum of $31,000, giving the plaintiff credit for the $1,000 already paid, with full payment to be made by November 1, 1974, but that closing also was never held.According to the defendants, the plaintiff told them he did not know when he would be able to obtain the purchase money and that if the defendants could, they should sell the property to someone else.

Additionally, the affirmative defense alleged that the value of the property increased from $26,000 in May of 1972 to $32,000 by December of 1974, and that the defendants, in reliance on the plaintiff's statement that he was unable to secure the required financing, accepted an offer to purchase from a third party, reflecting a purchase price of $31,000 in December of 1974.

Following the filing of the defendants' answer and affirmative defense, they moved for summary judgment.The affidavit filed by the defendants in support of their motion for summary judgment re-alleged all of the factual allegations contained in the defendants' answer and affirmative defense.The plaintiff filed an affidavit in opposition to the motion for summary judgment.The defendants then filed two supplemental affidavits in support of their motion for summary judgment.In one of these, they alleged that on December 30, 1974, they executed a warranty deed conveying the property to a third party and that the warranty deed was then being held pursuant to an escrow agreement.

The trial court thereafter granted the defendants' motion for summary judgment, stating the following reasons:

"In summary, the court finds the evidence shows that plaintiff never tendered the purchase price on the contract in question and as a result of this he was in breach of the written agreement upon which he now seeks specific performance.The only issues of fact center around the time he received financing and the cost of alleged improvements to the land.Neither of these are material due to the fact plaintiff failed to comply with the written agreement and as such he cannot claim he has been injustly treated thereby.Plaintiff cannot come into the court seeking equity when he has not fulfilled his end of the bargain.His remedy at law is adequate in that he may be able to recover his costs, if any, in regard to the improvements on the property."

This court has repeatedly and recently stated the methodology which should be employed by trial courts in determining whether the case before them should be disposed of by the summary judgment procedure.¹In Kavon Enterprises v. American Universal Insurance Company, 74 Wis.2d 53, 245 N.W.2d 695(1976), at pp. 56-57, 245 N.W.2d at p. 696, this court stated:

" . . . That 'precise methodology' has been set out in Marshall v. Miles(1972), 54 Wis.2d 155, 160, 161, 194[76 Wis.2d 551] N.W.2d 630, 633, cited with approval in Peninsular Carpets, Inc.(v. Bradley Homes, Inc., 58 Wis.2d 405, 206 N.W.2d 408)supra, footnote 1, as follows:

" 'Summary judgment is a drastic remedy that should not be granted where material evidentiary facts are in dispute, or, where reasonable inferences can be drawn from undisputed facts that would lead to alternative and opposite results.(Cases cited)The summary judgment procedure initially requires an examination of the pleadings to determine whether a cause of action has been stated and whether material issues of fact are presented.(Case cited)However, the allegations of the pleadings may not be considered as evidence or other proof on a disposition of the motion.(Cases cited)Assuming a cause of action and the existence of factual issues, an examination is then made of the moving party's (defendant's) affidavits and other proof to determine whether a prima facie defense has been established.(Case cited)If the moving party has made a prima facie case for summary judgment, an examination is then made of the opposing party's (plaintiff's) affidavit and other proof to determine whether there exists disputed material facts, or undisputed material facts from which reasonable alternative inferences may be drawn, sufficient to entitle the opposing party to a trial.(Case cited)The summary judgment procedure is not a trial on affidavits.(Case cited)' "

This same methodology is used by this court in determining whether the trial court abused its discretion in either granting or denying the motion for summary judgment.SeeCaraway v. Leathers, 58 Wis.2d 321, 325, 206 N.W.2d 193(1973).

Applying this methodology to the instant case, it is clear the plaintiff's complaint states a cause of action for specific performance of the written offer to purchase agreement executed on May 28, 1972.The complaint alleges that the plaintiff has always been ready, willing and able and is still ready, willing and able to perform his part of the agreements, but the defendants have refused to convey.

The answer and affirmative defense filed by the defendants raise the issues of the plaintiff's failure to tender the purchase price and the subsequent act of the defendants at the end of August, 1973, purporting to hold the offer to purchase and acceptance void because of the plaintiff's inability to secure the required financing.

Thus, we conclude there are issues raised by the pleadings in this case relating to the failure to have the closing of the transaction by the date specified in the offer to purchase, the subsequent oral extension of such closing date by the parties to August, 1973, and the subsequent action by the defendants in holding the offer to purchase and acceptance void.

However, as is required...