Sports Premiums, Inc. v. Kaemmer, 77-1086
| Decision Date | 08 February 1979 |
| Docket Number | No. 77-1086,77-1086 |
| Citation | 42 Colo.App. 172,595 P.2d 696 |
| Parties | SPORTS PREMIUMS, INC., Plaintiff-Appellant, v. John R. KAEMMER, Julia D. Kaemmer, the Bank of Vail, a corporation, Slifer& Company, a corporation, F. Charles Duryea, Jr., Dorothy C. Duryea, and Gore Valley Title, Inc., Defendants-Appellees. . III |
| Court | Colorado Court of Appeals |
Cosgriff, Dunn & French, John W. Dunn, Leadville, Jim K. Choate, Dallas, Tex., for plaintiff-appellant.
Stewart H. Brown, Vail, for defendants-appellees John R. Kaemmer, Julia D. Kaemmer and Bank of Vail.
Bader & Dufty, Robert J. Dyer, III, Denver, for defendants-appellees Slifer & Co. and Gore Valley Title, Inc.
No appearance for defendants-appellees F. Charles Duryea, Jr. and Dorothy C. Duryea.
Sports Premiums, Inc., appeals the denial of its claim to be declared the owner of a condominium unit in Vail. The trial court found the unit was owned by the defendants Kaemmers. We affirm.
Plaintiff, Sports Premiums, Inc., and defendants, the Duryeas, owned units in the All Seasons Condominiums in Vail. The Duryeas entered into a contract on July 10, 1975, to sell their unit to the Kaemmers. However, the condominium declaration gave a right of first refusal, a preemptive option, to all owners of units in All Seasons.
The declaration provided that should a unit owner receive a bona fide offer from a prospective purchaser, the owner was required to give immediate written notice thereof and a copy of the offer to the board of managers for all the owners. The declaration further stated:
"The remaining unit owners through the Board of Managers, or a person named by them, shall have the right to purchase or lease the subject apartment Upon the same terms and conditions as set forth in the offer therefor, provided written notice of such election to purchase or lease is given to the selling or leasing owner, and a matching down payment or deposit is provided to the selling or leasing owner during the 20 day period immediately following the delivery of the notice of the bona fide offer and copy thereof to purchase . . . ." (emphasis added)
The Duryea-Kaemmer contract provided for a sales price of $65,000 with an earnest money deposit of $2,000 and the balance of $63,000 due as provided in the contract. It further provided:
"1. Contract is contingent upon purchaser obtaining a loan of at lease (sic) 80% ($52,000) at an interest rate not to exceed 91/2% and for a period of at least 20 years. Said loan must be obtained within 25 days of this contract or contract is null and void and all earnest monies shall be returned to purchaser.
2. Contract is subject to the Right of First Refusal of the All Seasons Condominium Association.
3. The balance of $11,000 to be paid in cash or certified funds upon closing.
4. Title shall be merchantable in the seller. Subject to payment or tender as above provided in compliance with the other terms and conditions hereunder by purchaser, the seller shall execute and deliver a good and sufficient general warranty deed to said purchaser on 8 August, 1975, or, by mutual agreement, at an earlier date . . . .
9. Time is of the essence hereof, and if any payment or any other condition hereof is not made, tendered, or performed by purchaser as herein provided, then this contract shall be null and void and of no effect, and both parties hereto released from all obligations hereunder, and all payments made hereon shall be retained on behalf of the seller, as liquidated damages."
Defendant Slifer & Company, the Duryeas' real estate agent, gave notice to All Seasons Board of Managers on July 16, 1975, and the board notified the other unit owners on July 18. Sports Premiums, Inc., received the notice on July 22 and by letter dated July 29 sent a $2,000 check and advised the board it elected to purchase the unit on "the terms, conditions, and considerations expressed in said notice."
The board of managers determined the closing date had to be set back to August 11, because of their policy of allowing three days for mailing notice to the unit owners. The Kaemmers and Duryeas agreed in writing to extend their closing date to August 11.
The trial court found that during a telephone conversation between a Slifer representative and one Hamilton, the president of Sports Premiums, on August 1, Hamilton was told that the closing date was set for August 11; but that it was Hamilton's stated position at that time, and in a subsequent letter, that the closing date was August 23, thereby appropriating to Sports Premiums' benefit the condition of the Kaemmers' contract of 25 days to obtain a loan.
On August 6, another unit owner gave notice of her intent to exercise the right of first refusal on the unit. To determine who would be the purchaser between Sports Premiums and this unit owner, All Seasons conducted a drawing on August 11 in Denver. Sports Premiums won and the other unit owner abandoned her claim. Hamilton was in Dallas on that day; and the trial court found that repeated calls were made to him, but he was unavailable, although he called other parties on that day.
Consequently, on August 12 the Duryeas closed on the contract with the Kaemmers. Hamilton heard of the closing, and he tendered a check on August 15 for the entire amount of the purchase price, which the Duryeas did not cash. Sports Premiums then brought suit under C.R.C.P. 105 to determine the rights of the parties to the unit and for damages.
On appeal Sports Premiums argues that the trial court erred in not allowing it a reasonable time to close after being designated as the unit owner entitled to exercise the right of first refusal. Sports Premiums contends that it was only required to give notice and tender the matching downpayment within the 20 days to complete the exercise of the right; that where there are two owners exercising the right of first refusal, the right does not vest until by some means it is determined which owner can proceed (in this instance the drawing on August 11) and that there being nothing in the condominium declaration or the Kaemmer contract specifying the time the preemptioner was to perform its obligations, the law implies a reasonable time.
We disagree with Sports Premiums posturing the transaction in this manner. Indeed, the above argument as put forth in its brief is inconsistent with counsel's oral argument that once Sports Premiums gave notice and tendered payment, the preemptive option ripened into a binding contract between the Duryeas and Sports Premiums, which the Duryeas could have enforced against Sports Premiums had it not performed. Rather, we view the requirements of a unit owner exercising a right of first refusal as one transaction. This is tantamount to a preemptive option, as opposed to an ordinary option, because a preemptive option does not give the optionee the power to compel an unwilling owner...
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