Sowash v. Garrett
| Decision Date | 26 June 1981 |
| Docket Number | Nos. 4337,4417,s. 4337 |
| Citation | 630 P.2d 8 |
| Parties | Robert SOWASH, Appellant, v. Billie GARRETT, d/b/a Muldoon Realty and Evan G. Tobler, Appellees. Perry GREEN, Appellant, v. Billie GARRETT, d/b/a Muldoon Realty and Evan Tobler, Appellees. |
| Court | Alaska Supreme Court |
James L. Johnston, Opland, Johnston & Boedeker, Anchorage, for appellant Sowash.
John Anthony Smith, Smith & Gruening, Anchorage, for appellant Green.
M. Ashley Dickerson, Anchorage, for appellees.
Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and HANSON, Superior Court Judge. *
Robert Sowash and Perry Green appeal from the superior court's grant of summary judgment in favor of Billie D. Garrett, a real estate broker doing business as Muldoon Realty, and Evan G. Tobler, a Muldoon Realty salesman, in Garrett's and Tobler's action for specific performance of an alleged contract to sell real property and recovery of their commission on the sale. We reverse.
Green and Sowash own a parcel of real property as tenants in common. They acquired the property in 1971 under the terms of a document entitled: "Real Property Joint Purchaser Buy/Sell Agreement." The buy/sell agreement provides for the payment of expenses on the property, including mortgage payments, taxes and assessments, and for certain options and conditions under which, in the event of a default, the non-defaulting party may sell the property.
Paragraph 4 of the buy/sell agreement provides that, if one of the parties defaults in the payment of his obligations under the agreement, the other party shall be permitted to pay the same and give written notice to the defaulting party requesting reimbursement. With respect to the notice of default, paragraph 4 provides:
Said written notice shall be given by registered or certified mail, properly addressed to the defaulting party, with required postage affixed, and the defaulting party shall have thirty (30) days from the date of mailing such request within which to reimburse the party requesting reimbursement.
Subparagraph 4(b) essentially states that, upon failure of the defaulting party to reimburse the other, within thirty days after proper notice, the non-defaulting party shall have the "right to arrange for the sale of the property" in the manner described in paragraph 5:
(T)he non-defaulting party may elect to sell the property covered by this agreement ... by mailing to such party, by registered or certified mail, "Notice of Election to Sell" the property. After mailing the notice of such election to sell, the nondefaulting party may list the property for sale with any licensed real estate broker ....
In 1976, Sowash was allegedly unable to meet his obligations under the buy/sell agreement. Property taxes levied by the Municipality of Anchorage were delinquent and over $40,000.00 was owed to certain individuals holding first and second deeds of trust on the property, prompting those individuals to begin foreclosure proceedings.
These and other problems caused Green to list the property for sale with Walter J. Ward, a licensed real estate broker. Before and after he listed the property, Green wrote to Sowash a number of times, expressing concern over Sowash's default and stating his own desire and intention that the property be sold. Green, however, failed to comply with the formal notice requirements of the buy/sell agreement.
Ward advertised the listing that he had acquired with Multiple Listing Service, Inc., causing it to come to the attention of the plaintiffs below, Garrett and Tobler. Garrett and Tobler subsequently located two prospective purchasers, Troy Hankins and Marlin W. Law, who, on April 9, 1977, made an offer to purchase the property. The offer was presented to Green, by Garrett and Tobler, in the form of an earnest money agreement signed by the prospective purchasers. Green signed the earnest money agreement, thereby accepting the offer, on April 10, 1977. According to the terms of the agreement, Green promised to pay a 10% commission to the real estate brokers involved in the sale. 1
Green was subsequently unable to deliver title to the property, partly because of Sowash's refusal to execute the necessary documents. Sowash claimed that he never authorized Green to list or sell the property on the terms contained in the earnest money agreement.
On June 17, 1977, Garrett and Tobler began an action in the superior court against Sowash and Green. Count One of their complaint sought specific performance of the agreement to sell to Hankins and Law, urging the court to compel Sowash and Green "to perform said contract by accepting ... the required down payment on said property and executing the necessary conveyances as well as accepting the necessary conveyances to complete said sale." Count Two, set forth and described in the complaint as a "separate cause of action," was a claim for $38,750.00, the amount claimed to be due and owing to the plaintiffs as their share of the agreed broker's commission.
The superior court granted summary judgment in favor of Garrett and Tobler on each count. This appeal followed.
The critical issue on the question of Garrett and Tobler's right to specific performance is whether Green's acceptance of the buyers' offer bound his co-tenant, Sowash. It is clear that Green agreed to sell the property to Hankins and Law on the terms contained in the earnest money agreement. Sowash, however, was bound by that agreement only if (1) Green acted as Sowash's agent or (2) Green was authorized to sell Sowash's interest, along with his own, under the terms of their buy/sell agreement.
The superior court, after concluding that there were "no genuine issues of fact in dispute," resolved this issue in favor of the plaintiffs, stating:
It is undisputed that the formal notice requirements (of the Buy/Sell Agreement) were not observed; however, the defaulting party, Mr. Sowash, was on notice of his default and waived the formal notice requirement and ratified and adopted the actions of Mr. Green as evidenced by an exchange of correspondence among Messrs. Green, Sowash and Ward .... 2
Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that (the prevailing) party is entitled to a judgment as a matter of law." Rule 56(c), Alaska R.Civ.P. Moreover, the trial court is required to draw all reasonable inferences in favor of the non-moving party and against the movant. Clabaugh v. Bottcher, 545 P.2d 172, 175 n.5 (Alaska 1976). In the case at bar, it appears that these principles were not observed.
The "exchange of correspondence" referred to by the superior court consists largely of copies of a number of letters that Green sent to Sowash. The only letter which appears to have been written by Sowash is one that he wrote to Green, on an unspecified date, stating partly: In another writing, described in an affidavit by Sowash as "my notes of a night letter sent to PERRY GREEN on March 28, 1977," Sowash stated: In Sowash's affidavit itself, filed August 8, 1978, prior to the hearing on the motion for summary judgment, Sowash stated:
8. That in or about December of 1976, I had a conversation with PERRY GREEN wherein he stated he had a real estate broker who had a...
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