Schoneman v. Wilson
| Decision Date | 01 February 1990 |
| Docket Number | No. 11542-5-II,11542-5-II |
| Citation | 56 Wn.App. 776,785 P.2d 845 |
| Parties | Katherine L. SCHONEMAN, Respondent, v. Harold D. WILSON, Appellant. |
| Court | Washington Court of Appeals |
Gary H. Sexton, Sexton & Bratt, Bremerton, for appellant.
John A. Bishop and Russell W. Hartman, Bishop, Cunningham, Hartman & Beattie, Inc. P.S., Bremerton, for respondent.
Harold Wilson, vendee under a real estate contract, appeals an order of the Kitsap County Superior Court granting summary judgment to Katherine Schoneman, vendor, declaring the contract abandoned and quieting title to the property in question in Schoneman. We reverse.
In September of 1963, Schoneman entered into a real estate contract for the sale of certain property located in Kitsap County to Wilson. The real estate contract provided for a down payment of $25, with a total purchase price of $1,450 to be paid as follows ... $15.00 or more, including interest at the rate of seven percent per annum, on the 1st day of August, 1963, and a like amount every first day of each and every month thereafter until fully paid.
The terms of the contract further provided that the purchaser was to pay all assessments and taxes.
Wilson made the initial $25 down payment and the first $15 monthly payment due, but made no further payments, did not take physical possession of the property, and did not pay the real estate taxes as they fell due. Schoneman thereafter continued to pay the assessed real estate taxes on the property for the years 1964 through 1986, inclusive. At no time between the time of contracting in 1963 and the institution of this action in April of 1986, a period of 23 years, did Schoneman make a demand upon Wilson for the monthly payments, nor did either party seek specific performance from the other under the contract.
On April 17, 1986, Schoneman filed a "Notice of Intent to Declare Forfeiture" pursuant to RCW ch. 61.30, the Real Estate Contract Forfeiture Act. The notice provided that Wilson could avoid forfeiture of the contract by tendering $5,006.31, plus payments falling due subsequent thereto, to Schoneman prior to July 30, 1986. Upon receipt of the notice, Wilson flew from his residence in California to Bremerton, and tendered payment of the sum requested to Schoneman's attorney on July 25, 1986. The attorney accepted the tender, but Schoneman thereafter returned the funds to Wilson.
Schoneman, contending the contract had been abandoned, then sought a decree quieting title to the land in her. Cross motions for summary judgment were filed. Schoneman argued that both parties, through their conduct, mutually abandoned the contract. Wilson, in contrast, asserted that:
(1) the Real Estate Contract Forfeiture Act was the sole remedy by which Schoneman could terminate the contract (2) notwithstanding the Statutory Act, Schoneman was precluded under the common law from declaring abandonment of the contract absent notice and opportunity to cure the default and/or the facts do not support the trial court's conclusion that the contract was abandoned;
(3) Schoneman waived any right to allege abandonment of the contract by virtue of having initially proceeded under the Real Estate Contract Forfeiture Act;
(4) Schoneman was estopped from alleging abandonment of the contract by virtue of the language of the Notice which provided that Wilson could avoid forfeiture of the contract if payment was made prior to July 30, 1986; and,
(5) even if the initial contract was abandoned, Schoneman made an offer to renew the contract by issuing the Notice which offer was accepted by Wilson's tender of payment.
The trial court rejected Wilson's contentions and entered summary judgment in favor of Schoneman, concluding that the contract was mutually abandoned by the parties.
In reviewing a trial court's decision to grant summary judgment, an appellate court engages in the same inquiry as did the trial court. Hontz v. State, 105 Wash.2d 302, 311, 714 P.2d 1176 (1986). Pursuant to CR 56(c), a motion for summary judgment should not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Hontz, 105 Wash.2d at 311, 714 P.2d 1176.
The court must consider all of the facts submitted and reasonable inferences therefrom in the light most favorable to the nonmoving party. Trane Co. v. Brown-Johnston, Inc., 48 Wash.App. 511, 513, 739 P.2d 737 (1987). Questions of fact may be determined as a matter of law, however, when reasonable minds could reach but one conclusion. Hartley v. State, 103 Wash.2d 768, 775, 698 P.2d 77 (1985); Trane Co., 48 Wash.App. at 513, 739 P.2d 737.
Wilson first contends that the Real Estate Contract Forfeiture Act provides the exclusive remedy of a vendor seeking to extinguish the rights of a vendee under a real estate contract. We disagree.
Washington's Real Estate Contract Forfeiture Act provides that: "A purchaser's rights under a real estate contract shall not be forfeited except as provided in this chapter." RCW 61.30.020. The act requires that the seller give notice of intent to forfeit to the purchaser, following which the purchaser has ninety days in which to "cure" the default. RCW 61.30.020, 61.30.090(2). The act provides the exclusive procedures for nonjudicial forfeiture of a real estate contract. Galladora v. Richter, 52 Wash.App. 778, 764 P.2d 647 (1988).
The act, however, also provides that:
This chapter shall not be construed as prohibiting or limiting any remedy which is not governed or restricted by this chapter and which is otherwise available to the seller or the purchaser.
RCW 61.30.020(1). Those remedies which are not precluded by the act have been described as those involving a seller's suit for damages, installments as they fall due, and/or specific performance. Hume, The Washington Real Estate Contract Forfeiture Act, 61 Wash.L.Rev. 803, 807 n. 26 (1986).
The trial court in the present case similarly concluded that the doctrine of "abandonment" was not a remedy governed or restricted by the act. This conclusion was based on the court's reasoning that the Legislature could not have intended the act to reinstate contracts that had long been abandoned and forgotten about by the parties.
We concur in the trial court's reasoning. The Real Estate Contract Forfeiture Act pertains to "forfeitures," which term is defined by statute as "... to cancel the purchaser's rights under a real estate contract." RCW 61.30.010(4). The purpose of the act is to protect a purchaser from the ability of the seller to abuse forfeiture rights. See Hume, 61 Wash.L.Rev. at 803-04.
In contrast, the doctrine of "abandonment" is analogous to the mutual rescission of a contract by the consent of both parties. See Modern Builders, Inc. of Tacoma v. Manke, 27 Wash.App. 86, 615 P.2d 1332, review denied, 94 Wash.2d 1023 (1980); Martinson v. Publishers Forest Products Co., 11 Wash.App. 42, 521 P.2d 233 (1974). The doctrine of abandonment, as stated in Manke, provides that:
The parties to an express contract may abandon it and are released from their contractual obligations if the conduct of one party is inconsistent with the continued existence of the contract and that conduct is known to and acquiesced in by the other party.... In order for rescission to be legally operative, all parties to the contract must consent to rescission by words or objective conduct.
(Citations omitted.) Manke, 27 Wash.App. at 92, 615 P.2d 1332. Accordingly, the remedy of "abandonment" is separate and distinct from that of "forfeiture" and, thus, we conclude that the Real Estate Contract Forfeiture Act does not preclude this remedy.
Wilson contends in the alternative that under the common law a vendee's rights in a real estate contract are not subject to abandonment, but rather, can only be terminated by serving notice on the vendee and by compliance with statutory procedures similar to those applicable to mortgage foreclosures, i.e., opportunity to cure the default and judicial sale of property in the event of default. We again disagree.
Wilson's contention that the common law does not permit abandonment absent notice and opportunity to cure the default is based upon the general trend in the law to treat real estate contracts as mortgages, thus affording purchasers under real estate contracts the same protection as that afforded mortgagors with regard to the termination of a purchaser's interest. 1 Accordingly, Wilson asserts that the interest of a contract purchaser should be viewed as analogous to that of a mortgagor. In this regard, it has been held that a mortgagor's right to possession is not lost by abandonment. See Howard v. Edgren, 62 Wash.2d 884, 885, 385 P.2d 41 (1963).
The cases cited by Wilson all address the issue of forfeiture, not abandonment and, thus, we find them distinguishable. Furthermore, we note that Washington has expressly extended the protection of a mortgagor to contract purchasers in the context of forfeitures, by virtue of the enactment of the Real Estate Contract Forfeiture Act. Accordingly, we find no authority for abolishing the doctrine of abandonment with regard to real estate contracts.
With regard to the common law as it pertains to real estate contracts, Washington has concurred in the application of the doctrine of abandonment to real estate contracts. See Benham v. Columbia Canal Co., 74 Wash. 110, 132 P. 884 (1913); Voight v. Fidelity Investment Co., 49 Wash. 612, 96 P. 162 (1908). In Voight, the court rejected a purchaser/vendee's claim for specific performance of a real estate contract which the court found to have been abandoned, the court stating as follows:
We think, when it was shown that the appellant had made no...
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...and, by not contesting the second element of equitable estoppel in these cases, DSHS appears to so concede. Schoneman v. Wilson, 56 Wash.App. 776, 784, 785 P.2d 845 (1990) ("Implicit in the [three] factors is that the assertion on which estoppel is based must induce detrimental reliance by ......
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