Flores v. Raz

2002 WI App 27, 640 N.W.2d 159, 250 Wis. 2d 306, 2001 Wisc. App. LEXIS 1323
CourtCourt of Appeals of Wisconsin
DecidedDecember 27, 2001
Docket01-1104
StatusPublished
Cited by2 cases

This text of 2002 WI App 27 (Flores v. Raz) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flores v. Raz, 2002 WI App 27, 640 N.W.2d 159, 250 Wis. 2d 306, 2001 Wisc. App. LEXIS 1323 (Wis. Ct. App. 2001).

Opinions

CURLEY, J.

¶ 1. Jack Raz (Raz) and his wife, [310]*310Margot, appeal from the trial court's grant of summary judgment to Dave Flores and Greg Montoto. Raz argues that the trial court erred: (1) in determining that, despite the lack of an express clause in the business purchase agreement making the Wisconsin State Fair Park Board's (Board) approval of the sale a contingency, the Board's approval was an implied condition precedent subject to performance within a reasonable period of time; (2) in finding that the two-year delay in approving the sale constituted an unreasonable time period; and (3) in ruling that Flores and Montoto could recover the monies paid in contemplation of the sale under a claim for "unjust enrichment."

¶ 2. Because the Board's approval of the sale was an implied condition precedent to the contract, subject to completion within a reasonable time, we affirm. Further, because the Board's failure to approve the sale for two years after the contract was executed was an unreasonable period of time under the circumstances, the buyers were entitled to rescind the contract and recoup their monies.

I. Background.

¶ 3. The Razes own and operate Jack's West Side Deli, a business located on the Wisconsin State Fair Park grounds. Raz entered into a lease with the State Fair Park Board on May 27, 1977. Under the lease, Raz rents space from State Fair Park to use as a vendor during the State Fair week each year, but the buildings erected by Raz, as well as any fixtures of the business, remain his personal property. The lease also provides that Raz can sell the business, but only with the consent of the Board. This lease has been automatically renewed each year.

[311]*311¶ 4. In August of 1998, Flores and Montoto approached Raz and asked if he would be interested in selling the equipment and buildings comprising the deli. Raz expressed interest and the parties met with Rich Bjorklund, the executive director of the Wisconsin State Fair, who indicated that he supported the sale. After this meeting, on August 13, 1998, the parties entered into a business purchase agreement. According to the agreement, Flores and Montoto would purchase all of the equipment and buildings comprising Jack's West Side Deli for $154,500; however, the business purchase agreement made no mention of the fact that the purchase was subject to the approval of the Board.

¶ 5. Pursuant to the terms of the purchase agreement, Flores and Montoto paid $2,000 earnest money at the execution of the agreement. They also paid Raz $28,000 at the end of August 1998, as a down payment. The balance of the purchase price was due on March 15, 1999. In March 1999, Flores and Montoto refused to pay the balance of the purchase price and requested the return of their monies because the State Fair Park Board had failed to grant approval of the sale. Ultimately, the Board did approve the sale on August 3, 2000, two years after the parties entered into the business purchase agreement.

¶ 6. However, on October 25, 1999, Flores and Montoto commenced an action to recover their $30,000. Raz counterclaimed for $124,500, the balance due on the purchase price. The trial court granted Flores' and Montoto's motion for summary judgment and dismissed Raz's counterclaim, concluding that the Board's approval of the sale was an implied condition precedent to the contract, and, because the condition had not been met within a reasonable time, the contract was unenforceable. The trial court then found that the elements [312]*312of a claim for unjust enrichment had been proved and awarded Flores and Montoto $30,000.

II. Analysis.

¶ 7. As noted, the trial court granted Flores' and Montoto's summary judgment motion, finding that Raz's retention of the $30,000 constituted "unjust enrichment." In an appeal from the entry of summary judgment, this court reviews the record de novo, applying the same standard and following the same methodology required of the trial court under Wis. Stat. § 802.08. Voss v. City of Middleton, 162 Wis. 2d 737, 747-48, 470 N.W.2d 625 (1991). After reviewing the record, we affirm the trial court's decision; however, we do so on other grounds.

¶ 8. Raz submits that the trial court erred when it failed to grant his summary judgment motion and, instead, granted the vendees' motion. Raz argues that because the Board ultimately gave him permission to sell his property located on the State Fair grounds and no contingency provision exists in the agreement hinging the sale on the Board's approval, he was entitled to summary judgment. We disagree.

¶ 9. While Raz correctly notes that the parties failed to include a clause conditioning the sale on Board approval, his subsequent argument misses the mark. Raz argues that his circumstances mirror those fact situations where the failure to include a financing contingency was found not to be a bar to enforcement of the contract. See, e.g., Perkins v. Gosewehr, 98 Wis. 2d 158, 295 N.W.2d 789 (Ct. App. 1980). Unlike Perkins, where the parties failed to include an adequate financial contingency, here, there is an absolute impediment to [313]*313the sale being consummated. Without Board approval, Raz could not legally sell his property. Therefore, Board approval, unlike the financing contingency in Perkins, operated as a bar to the sale of Raz's property.

¶'10. "Where an agreement contains no express provision as to some matter, the meaning in respect of such matter will be implied if an implication is warranted by the facts and circumstances of the particular case... ." 17A Am. Jur. 2d § 195 (1991). See also Kelley v. Ellis, 272 Wis. 333, 337, 75 N.W.2d 569 (1956) (citing 12 Am. Jur. Contracts § 64) ("Where an agreement contains no express provision as to some matter, the meaning in respect of such matter will be implied if an implication is warranted by the facts and circumstances of the particular case, as where a provision for performance in a reasonable time is sometimes implied."). Here, it is clear that everyone knew that Board approval was necessary. Indeed, the parties met with the executive director, who encouraged the sale. The facts and circumstances point to the parties' intention that Board approval would be necessary to complete the sale. Thus, the Board's approval was an implied condition precedent to enforcement of the contract.

¶ 11. Further, the general rule is that where there is an absence of a provision as to the time for performance, a reasonable time is implied. Wis JI — Civil 3049 sets forth the rule: "A contract which provides that it is to continue for an indefinite period continues for a reasonable time under the circumstances." See also De Lap v. Inst. of Am., Inc., 31 Wis. 2d 507, 512, 143 N.W.2d 476 (1966) ("Where there is no provision as to the time for performance, reasonable time is implied."). Thus, [314]*314the implied condition that Board approval was needed was subject to a reasonable time limit.

¶ 12.

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Bluebook (online)
2002 WI App 27, 640 N.W.2d 159, 250 Wis. 2d 306, 2001 Wisc. App. LEXIS 1323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flores-v-raz-wisctapp-2001.