Bellina v. Graybar

532 So. 2d 847, 1988 La. App. LEXIS 1904, 1988 WL 100068
CourtLouisiana Court of Appeal
DecidedSeptember 29, 1988
DocketNo. CA 8561
StatusPublished
Cited by4 cases

This text of 532 So. 2d 847 (Bellina v. Graybar) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bellina v. Graybar, 532 So. 2d 847, 1988 La. App. LEXIS 1904, 1988 WL 100068 (La. Ct. App. 1988).

Opinion

ARMSTRONG, Judge.

This is a dispute involving the retention by the defendants of the plaintiffs’ $8,000.00 deposit after a real estate transaction fell through. The defendants, Mr. and Mrs. Andrew T. Graybar, appeal from the trial court's partial grant of the plaintiffs’ motion for summary judgment, which ordered the Graybars to return the plaintiffs’ deposit and which reserved “for later adjudication” all other disputed claims. Because we agree that there are no genuine issues of material fact in dispute, and that the plaintiffs were entitled to judgment as a matter of law, we affirm the judgment of the trial court.

Doctor and Mrs. James C. Beilina entered into an agreement with Mr. and Mrs. Andrew T. Graybar to purchase the Gray-bars’ home. Pursuant to this agreement the Beilinas tendered two deposits totalling $8,000.00. The sale did not go through, the Graybars retained the Beilinas’ deposit, and the dispute in the trial court concerned whether the Beilinas were entitled to recover their deposit.

[849]*849Among other conditions, the original agreement provided that the Beilinas would not be required to purchase the Graybars’ home unless Citicorp Homeowners, Inc. (“Citicorp”) permitted the Beilinas to assume the remaining balance on the Gray-bars’ mortgage loan (“the financing condition”). The parties dispute whether this financing condition was removed in a subsequent amendment to the original purchase agreement. In any case, Citicorp did not approve the Beilinas’ application to assume the Graybars’ loan. Consequently, the Beilinas did not purchase the Graybars’ home by the contract closing date. The Beilinas then requested that their deposit be returned. When the Graybars refused to give it back, the Beilinas filed suit to recover their $8,000.00 deposit, as well as to recover their costs and attorney fees associated with the filing of their petition. The Graybars filed a reconventional demand alleging that the Beilinas breached the agreement (and were therefore not entitled to the return of their deposit) and that the breach entitled the Graybars to some $80,035.00. The Beilinas moved for summary judgment on both the main and the reconventional demand. The trial court granted partial summary judgment ordering the return of the Beilinas’ deposit and ordered all other claims at issue, including the Beilinas’ request for attorney’s fees and costs, and the Graybars’ reconventional demand, “reserved for later adjudication”. No written reasons for judgment were assigned.

On appeal, the Graybars argue that summary judgment as to the Beilinas’ claim for the return of their deposit was improperly granted because there were genuine issues of material fact as to: 1) whether the purchase agreement was conditioned upon Citi-corp’s permitting the Beilinas to assume the Graybar’s loan; 2) whether the Beilinas acted in good faith in applying to Citicorp for consent to assume the Graybars’ loan; and, 3) whether the Beilinas correctly represented the amount they had for a down-payment. The Graybars also complain that the trial court’s partial grant of summary judgment was improper because it did not also rule as to their reconventional demand.

Issue Number 1

Is the issue whether the purchase agreement was conditioned upon Citicorp’s permitting the Beilinas to assume the Gray-bars’ loan genuinely in dispute? We think not. The Graybars concede that the original agreement conditioned the purchase on Citicorp’s permitting the Beilinas to assume the Graybars’ loan. Thus, according to this provision of the original agreement, if Citicorp would not permit the assumption, the Beilinas would not have to purchase the Graybar’s home, and their deposit would be returned.

The original agreement also contained a predication clause. This provides that the Beilinas were not obligated to purchase the Graybar’s home unless they were first able to sell their own home. Beneath that provision is another clause which in effect states, if the predication condition is removed, all financing conditions are removed, and all other terms of the agreement remain. The parties do not dispute that these terms appear in the agreement. The parties also agree that the predication was removed by an April 23, 1984 amendment to the original agreement. The Gray-bars thus argue that, the predication having been removed, so automatically the financing condition was removed. Therefore, the Graybars argue, the fact that Citicorp did not permit the Beilinas to assume the Graybars’ loan was no longer a precondition of the Beilina’s obligation to purchase the Graybars’ home. Accordingly, the argument concludes, when the Beili-nas refused to proceed to an act of sale on the contractual closing date, the agreement was breached, and the Graybars were entitled to retain the Beilina’s deposit. We disagree.

In their brief on appeal, the Gray-bars omit reference to another provision in the original agreement. In language typed on the pre-printed original agreement is written:

If predication is removed, purchaser must immediately apply for loan assumption..

[850]*850Thus, the pre-printed provision that, if predication is removed, all financing conditions are removed, is inconsistent with the typed provision requiring the Beilinas to apply for the loan assumption. Of course, where a pre-printed clause is followed by an inconsistent typed provision, the typed provision controls. Finishers Drywall v. B & G Realty, Inc., 516 So.2d 420, 422 (La.App. 1 Cir.1987); Kuhn v. Stan A. Planche Real Estate Co., 249 La. 85, 185 So.2d 210, 212 (1966). Thus, in the present case, it is clear that the financing condition still applied as a matter of law.

The Graybars nevertheless contend that, in addition to the original agreement, the amended agreement which removed the predication also removed the financing condition. We disagree. The amended agreement provides, in pertinent part:

We agree that every contingency of any kind has been met, that the agreement should now proceed to act of sale ... We will now immediately contact Citicorp Homeowners, Inc. to arrange the mortgage assumption.

The Graybars’ argument focuses on the first of the above quoted provisions, but their brief omits reference to the second. Of course, the interpretation of an unambiguous contract is a question of law, not fact. We think that the second paragraph clearly evidences the parties’ intent that the financing condition remain, but that all other contingencies are removed. In effect, the second paragraph operates as a qualification of, or exception to, the first. Accordingly, we hold that there is no genuine issue with respect to whether the purchase agreement was conditioned upon Citi-corp’s permitting the Beilinas to assume the Graybars’ loan.

Issue Number 2

Is the issue whether the Beilinas acted in good faith in applying to Citicorp for consent to assume the Graybar’s loan genuinely in dispute? We think it is. However, we nevertheless conclude that this is irrelevant because it is not a material fact in dispute unless the Graybars contend, which they do not, that Citicorp’s refusal to permit the Beilinas to assume the Graybar’s loan was earned by the Beili-nas’ alleged untimely application. Instead, the record indisputably reflects that Citi-corp’s denial had nothing to do with the timeliness of the Beilinas’ application.

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Cite This Page — Counsel Stack

Bluebook (online)
532 So. 2d 847, 1988 La. App. LEXIS 1904, 1988 WL 100068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bellina-v-graybar-lactapp-1988.