Vigoda v. Denver Urban Renewal Authority, 79CA1077

• Decision Date: 14 August 1980
• Docket Number: No. 79CA1077,79CA1077
• Parties: Louise VIGODA d/b/a Tower Associates, Plaintiff-Appellant, v. DENVER URBAN RENEWAL AUTHORITY, and Alex Holland, Sterling Kahn, Marian Hurwitz, Omar Blair, V. P. Cline, Thomas J. Gargan, John W. Hall, Mary Baca, Robert J. Holton, J. B. Jobe, and Walter Emery, as the Board of Commissioners of the Denver Urban Renewal Authority, Defendants-Appellees. . I
• Court: Colorado Court of Appeals

Page 895

624 P.2d 895

Louise VIGODA d/b/a Tower Associates, Plaintiff-Appellant, v. DENVER URBAN RENEWAL AUTHORITY, and Alex Holland, Sterling

Kahn, Marian Hurwitz, Omar Blair, V. P. Cline, Thomas J.

Gargan, John W. Hall, Mary Baca, Robert J. Holton, J. B.

Jobe, and Walter Emery, as the Board of Commissioners of the

Denver Urban Renewal Authority, Defendants-Appellees.

No. 79CA1077.

Colorado Court of Appeals, Div. I.

Aug. 14, 1980.

Rehearing Denied Sept. 18, 1980.

Certiorari Granted Feb. 9, 1981.

George L. Vamos, Denver, for plaintiff-appellant.

Conover, McClearn, Heppenstall & Kearns, Frederic K. Conover, II, Michael S. McCarthy, Denver, for defendants-appellees.

COYTE, Judge.

Plaintiff appeals the judgment of the trial court entering summary judgment in favor of defendants and dismissing the amended complaint. We affirm in part and reverse in part.

This action arose out of plaintiff's unsuccessful attempt to execute a contract with defendant Denver Urban Renewal Authority (DURA) for the sale and redevelopment of the Daniels and Fisher Tower. During the summer of 1977, DURA invited members of the public to submit offers pertaining to a 90-day exclusive right to negotiate the terms of a redevelopment contract. On December 1, 1977, DURA accepted plaintiff's offer to negotiate a proposal to convert the Tower into residential condominiums and a restaurant facility.

Under the terms of the offer, the proposal would be irrevocable for 90 days or "upon such earlier date as the authority may reject this offer in writing." By written agreement, the parties could extend the irrevocable period of the offer. If DURA failed to approve plaintiff's redevelopment proposal within 90 days, if DURA rejected the proposal in writing, or if DURA did not finally accept the proposal by execution of a Redevelopment Agreement, then DURA would return to plaintiff her $7,268 deposit and no rights to specific performance or in the nature of equitable conversion would arise. In addition, plaintiff would submit to DURA all findings, determinations, studies, and reports undertaken in connection with the negotiations.

The DURA Resolution accepting the Offer to Negotiate specified substantial completion of the project on or before September 1, 1978. On January 10, 1978, plaintiff received DURA's Proposal for Sale of Land for Redevelopment which specified full completion of the project on or before September 1, 1978. On January 27, 1978, plaintiff informed DURA that she would not be able to fully complete the project by September 1, 1978, and she scheduled a February 9, 1978, meeting with DURA to discuss the matter.

At that meeting, DURA's Commissioners (Commissioners) refused to discuss the project completion date. Instead, they commented upon plaintiff's public criticism of the proposed design of the hotel complex to be constructed adjacent to the Tower. Since plaintiff had commented that the hotel design might jeopardize the feasibility and the "financiability" of her proposed project, the Commissioners required plaintiff to submit, by March 9, 1978, evidence of available financing for the project and of her intention and her capability to complete the project.

The Commissioners then scheduled a meeting to take place on March 9, 1978, to discuss completion of the project. However, on March 8, 1978, plaintiff was notified that the meeting had been cancelled. Nonetheless, the Commissioners requested the information regarding the feasibility of the project. Plaintiff submitted evidence of a local bank's commitment to work with plaintiff to finance the project subject to several contingencies. Plaintiff's response to the inquiry regarding the viability of the project was that she was "unable to assess the total situation," but that she was continuing as though there were no problems.

The Commissioners apparently had requested information beyond the 90-day period. However, on March 16, 1978, without notice to plaintiff, DURA adopted a Resolution terminating the working relationship with plaintiff because of plaintiff's failure to execute, within the 90-day period, a Redevelopment Agreement. Accordingly, DURA returned plaintiff's deposit to her.

Plaintiff filed this action seeking damages based upon theories of breach of contract, promissory estoppel, violations of 42 U.S.C. § 1983, and outrageous conduct. After extensive discovery, defendants filed a motion to dismiss or in the alternative for summary judgment which the trial court granted.

I. Breach of Contract

The trial court found that the Offer to Negotiate was, as a matter of law, an "agreement to agree" which is unenforceable and which does not give rise to obligations on the part of either party. We agree.

As found in the Offer to Negotiate, the Resolution accepting plaintiff's Offer to Negotiate, and the Proposal for Sale of Land for Redevelopment, the intent of the parties was that the final acceptance of plaintiff's proposal would occur upon execution of the Redevelopment Agreement. In addition, several material terms of the proposal were undetermined when DURA terminated the relationship with plaintiff. Under these circumstances, we conclude that no contract existed between DURA and plaintiff. See Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 479 P.2d 875 (1971). Therefore, the trial court properly dismissed this claim for relief.

II. Promissory Estoppel

The plaintiff's second claim for relief alleges that DURA promised plaintiff that it would negotiate in good faith for a period of 90 days for the purpose of reaching an agreement on the purchase, rehabilitation, and redevelopment of the Tower; that this promise was relied upon by plaintiff and it induced plaintiff to expend substantial time, effort, and money in furtherance of the anticipated negotiations; that DURA breached this promise to negotiate in good faith; and that this breach creates an injustice which can only be remedied by an award of damages for the value of her time and effort and for the sums expended.

Plaintiff relies upon Mooney v. Craddock, 35 Colo.App. 20, 530 P.2d 1302 (1974) which adopted the doctrine of promissory estoppel as set forth in the Restatement of Contracts § 90, as follows:

"A promise which the promissor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."

Here, plaintiff's...