Schmerer v. Darcy

• Decision Date: 06 February 1996
• Docket Number: No. 14291-4-III,14291-4-III
• Citation: 910 P.2d 498,80 Wn.App. 499
• Court: Washington Court of Appeals
• Parties: Dana W. SCHMERER, Personal Representative of the Estate of Rodger W. Schmerer, deceased, Respondent, v. Donald A. DARCY and Connie K. Darcy, husband and wife, Appellants, Jacqueline J. Schmerer, Respondent and Cross-Appellant.

Page 499

80 Wn.App. 499

910 P.2d 498

Dana W. SCHMERER, Personal Representative of the Estate of Rodger W. Schmerer, deceased, Respondent, v. Donald A. DARCY and Connie K. Darcy, husband and wife, Appellants Jacqueline J. Schmerer, Respondent and Cross-Appellant.

No. 14291-4-III.

Court of Appeals of Washington,

Division 3,

Panel Two.

Feb. 6, 1996.

Reconsideration Denied March 8, 1996.

Michael L. Wolfe, Randall & Danskin, Spokane, for Appellants.

Martin G. Weber, Lukins & Annis, Spokane, Joseph P. Delay, Delay, Curran, Thompson & Pontarolo, Spokane, for Respondent.

SWEENEY, Chief Judge.

Donald A. Darcy and Connie K. Darcy bought a home from Jacqueline J. Schmerer. The home was subject to a lien in favor of Ms. Schmerer's ex--

Rodger W. Schmerer, as the result of a dissolution decree. The Darcys did not pay the lien. They did, however, tender the principal payment together with a portion of the interest to Mr. Schmerer. Mr. Schmerer rejected the tender, ignored requests to state a sum certain, and sued to foreclose on his lien. The trial court granted summary judgment foreclosing Mr. Schmerer's lien. The Darcys appeal. The primary issue presented is whether the Darcys' tender of payment was sufficient and either discharged the lien or stopped interest from accumulating. We hold that the Darcys' tender was insufficient because it did not include the full amount of interest due to Mr. Schmerer. Both the principal amount of the lien and the accumulated interest could have been ascertained [910 P.2d 501] since the lien was a matter of public record. We accordingly affirm the trial court's summary judgment in favor of both of the Schmerers.

FACTS

The Schmerers ended their marriage on April 9, 1985. The decree of dissolution awarded Ms. Schmerer a home, but imposed a $30,500 lien in favor of Mr. Schmerer. The decree called for $11,500 of the lien to accrue interest at the rate of 12 percent per annum commencing on October 1, 1983, and payable as it accrued. The remaining balance, $19,000, did not accrue interest until the entire $30,500 became due. The principal balance, $30,500, together with any accrued interest, was payable on November 30, 1990. The decree was filed with the county clerk. Ms. Schmerer failed to pay any interest.

In the fall of 1989, Ms. Schmerer sold the property to the Darcys. Their contract was oral. The Darcys agreed to assume a $22,000 mortgage and pay Mr. Schmerer's lien. In October 1990, Ms. Schmerer placed a handwritten note in the Darcys' mailbox reminding them that the lien was due in November 1990. In January 1991 the Darcys hired On September 18, 1992, the Darcys sued Ms. Schmerer for specific performance of their oral contract for the purchase of the property. Their complaint alleged that the consideration for the property consisted of the assumption of the mortgage and Mr. Schmerer's lien. The court granted specific performance and ordered Ms. Schmerer to convey title to the property to the Darcys. She did so, but noted on the deed that it was subject to a $30,500 lien.

a lawyer to prepare a written document of conveyance from Ms. Schmerer and secure a copy of the Schmerers' dissolution decree. Unfortunately, the lawyer did nothing. The Darcys then hired a second lawyer. He bought a title report which accurately reflected the language of the dissolution decree awarding the lien. On August 4, 1992, the Darcys offered Mr. Schmerer $30,500 to release his lien. Mr. Schmerer did not respond. Mr. Schmerer died on September 11, 1992. His estate was substituted, but we will continue to refer both to him and the estate as Mr. Schmerer.

On September 10, 1993, the Darcys sent Mr. Schmerer a check for the principal and three years' interest (the period during which the Darcys occupied the property). The Darcys said they were not responsible for interest accumulated before their possession. Mr. Schmerer rejected the tender because it did not include all accumulated interest. He also asked the Darcys to deposit the tendered funds in an interest-bearing account. On September 21, 1993, the Darcys refused his request and told Mr. Schmerer that their tender was good for a limited time. On December 22, 1993, Mr. Schmerer demanded payment of the lien in full.

On March 29, 1994, Mr. Schmerer sued to foreclose on his lien. The Darcys answered and filed a third-party action against Ms. Schmerer. All parties moved for summary judgment. The court entered a judgment foreclosing Mr. Schmerer's lien and dismissed the Darcys' third-party complaint against Ms. Schmerer.

The Darcys appeal. Ms. Schmerer also appeals the court's denial of her claim for attorney fees.

DISCUSSION

Standard of Review

Summary judgment is proper only when the pleadings, affidavits, depositions, and admissions on file demonstrate no genuine issue of material fact and the party bringing the claim is entitled to judgment as a matter of law. CR 56(c); Kesinger v. Logan, 113 Wash.2d 320, 325, 779 P.2d 263 (1989). All facts and reasonable inferences therefrom are to be viewed in the light most favorable to the nonmoving party, and summary judgment will be granted only if reasonable persons could reach but one conclusion. Kesinger, 113 Wash.2d at 325, 779 P.2d 263.

The Darcys' Claims Against Mr. Schmerer

Sufficiency of the Tender. The Darcys' tender was insufficient because it did not include all accrued interest. A tender is insufficient if it is not in the amount due and requires a complete release. It is rather a conditional tender. Kirk v. Allemann, 2 Wash.App. 183, 185, 467 P.2d 319 (1970). The Darcys' argument suggests they made several tenders. The record suggests otherwise. They made only one--on September 10, 1993. The others were proposals or propositions to offer money. King v. O/S Nordic Maiden, 587 F.Supp. 46, 48 (W.D.Wash.1984) (debtor must evidence a willingness, accompanied by the ability and attempt to pay); Catterson v. Ireland, 60 Wash. 208, 213, 110 P. 1002 (1910) (a tender must include a production of money).

The Darcys' September 10, 1993 tender included interest for only the three years the Darcys were in possession. At first they maintained they should only be liable for interest accrued after they took possession of the property. Later they argued they did not know the payoff amount and, accordingly, could not make a tender of the full amount due. Their arguments are not supported by this record.

First, in their specific performance action against Ms. Schmerer, the trial court found that the lien was an encumbrance on the property and not a personal obligation of Ms. Schmerer. It also found that the Darcys purchased the home with the intention that Ms. Schmerer could "walk away from the house with no further obligation." The court also found the date of the sale to be October 1989. These findings were made on August 4, 1993. Second, the principal amount of the lien and the rate at which interest would accrue was also a matter of public record as early as April 9, 1985. Third, on December 17, 1992, Ms. Schmerer answered interrogatories and said she had made no payments on the lien. The amount of the lien and the accrued interest could have been calculated with certainty. Any offer or tender which ignored this objective, easily ascertainable information was not an offer made in good faith.

The tender was then neither legally sufficient nor could it have been made in good faith.

Interference with a Business Relationship. The Darcys next argue that Mr. Schmerer interfered with their business relationship with Ms. Schmerer. The cause of action requires, among other things, intentional interference inducing or causing a breach or termination of a valid contractual relationship or business expectancy and resultant damage. Cherberg v. Peoples Nat'l Bank, 88 Wash.2d 595, 602, 564 P.2d 1137 (1977). The intentional interference denotes purposefully improper interference. Birkenwald Distrib. Co. v. Heublein, Inc., 55 Wash.App. 1, 11, 776 P.2d 721 (1989). Intentional interference in this context requires an improper objective of harming the person or the use of wrongful means that in fact cause injury to the person's contractual or business relationships. Pleas v. City of Seattle, 112 Wash.2d 794, 804, 774 P.2d 1158 (1989).

The Darcys attempt to support this claim with evidence which is, at best, innocuous. First is the correspondence between the attorneys for Mr. Schmerer and Ms. Schmerer. The exchange of correspondence is nothing more than inquiries by an interested party in the outcome of the suit by the Darceys against Ms. Schmerer. Next, they point to the deposition testimony of Ms. Schmerer. But even if this testimony is read in the light most favorable to the Darcys, it is an expression by Mr. Schmerer that the mortgage payments were late. Finally, the affidavit of the Darcys' lawyer merely references a statement by Mr. Schmerer that he believed the house was his and he had not decided what he was going to do with it. Simply put, that is not interference with a contract. Restatement (Second) of Torts § 773 (1977) (exercising in good faith one's legal interests is not improper interference).

RCW 61.16.030 Claim. RCW 61.16.020 provides in part that "[w]henever the amount due on any mortgage is paid, the mortgagee ... shall, at the request of any person interested in the property mortgaged, execute an instrument in writing referring to the mortgage ... and acknowledging satisfaction in full thereof." Failure to comply with that provision invokes the penalties of RCW 61.16.030: "If the mortgagee fails to acknowledge satisfaction of the mortgage as provided in RCW 61.16.020 sixty days from the date of such request or demand, he shall forfeit and pay to the mortgagor damages and a reasonable attorneys' fee...." But mortgages, whether chattel or real, do not have to be satisfied or released until the amount due has been paid. Stusser v. Gottstein, 178 Wash. 360, 369, 35 P.2d 5 (1934).

RCW 61.16.030...