Mann v. Addicott Hills Corp.

384 S.E.2d 81, 238 Va. 262, 6 Va. Law Rep. 375, 1989 Va. LEXIS 148
CourtSupreme Court of Virginia
DecidedSeptember 22, 1989
DocketRecord No. 880603
StatusPublished
Cited by1 cases

This text of 384 S.E.2d 81 (Mann v. Addicott Hills Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mann v. Addicott Hills Corp., 384 S.E.2d 81, 238 Va. 262, 6 Va. Law Rep. 375, 1989 Va. LEXIS 148 (Va. 1989).

Opinion

Justice Compton

delivered the opinion of the Court.

In this real property controversy, purchasers appeal from a decree denying their request for specific performance of a contract for the sale of a newly constructed home. The controlling question is whether a “sale of existing residence” contingency to the sales contract was for the sole benefit of the purchasers so that breach of the contingency did not permit the seller to terminate the contract.

On March 1, 1986, the contract in question was executed by appellants W. Lowry Mann, III, and Barbara C. Mann, his wife, and appellee Addicott Hills Corporation. The Manns agreed to buy from Addicott Hills Lot 11 improved with a dwelling known as 9105 Peartree Landing in Union Farm Subdivision located in Fairfax County. The purchase price was $296,580 payable: $5,000 upon execution of the contract; $100,000 “representing the proceeds of a loan to be made to Purchaser by the mortgage lender”; and $191,580 at settlement.

[264]*264Subsequently, the seller terminated the contract and the purchasers filed the present suit seeking specific performance of the agreement. Following an ore tenus hearing, and after briefing by counsel, the chancellor denied the request for specific performance in a letter opinion. We awarded the purchasers this appeal from the February 1988 final decree dismissing the suit. Cross-error assigned by the seller was refused at the petition stage of the appeal.

The facts mainly are undisputed. Where they are in conflict, however, we will recite them in the light most favorable to the seller, who prevailed below, in accordance with settled appellate principles.

The March 1988 contract included three separate pre-printed documents supplied by the seller: a “New Home Sales Agreement,” a “Sale of Existing Residence Addendum” (the contingency), and a “Delivery and Payment of Non-Standard Options Addendum.”

Relevant to this dispute, the contract provided that the seller would complete construction of the dwelling “on or before November [1986],” but that the completion date could be extended if delays beyond the control of the seller occurred; that if the contract was not performed by the purchasers according to its terms and conditions, then it could be terminated by the seller; and, that time was of the essence in the performance of the purchasers’ obligations. The agreement also recited acknowledgement by the purchasers that the “projected delivery date” was only an estimate and “cannot be guaranteed by the Seller or its agent.”

The focus of the controversy is the contingency, included at the purchasers’ request. It provided that within 90 days from the date “house framing starts,” the purchasers “shall deliver to Seller a copy of a written contract” between the purchasers and a third party for the sale and purchase of the purchasers’ “present residence.” The contingency further specified that the purchasers “shall: (a) Immediately commence to use diligent and good faith efforts to sell” the purchasers’ existing residence; “(b) Immediately list” the purchasers’ residence with a reputable realtor in the vicinity of the purchasers’ Alexandria home and that the purchasers “shall produce satisfactory evidence of such listing to Seller within fifteen (15) days, after the start of house framing”; and “(c) Make diligent, good faith and prompt efforts to enter into a contract for the sale of’ the purchasers’ residence.

[265]*265The contingency also provided that if the purchasers without fault failed to secure a written contract within the 90-day period for the sale of their residence, the purchasers could terminate the contract within the period upon written notice to the seller accompanied by the purchasers’ listing contract and an affidavit of the listing broker that the purchasers’ “efforts” were unsuccessful. Finally, the contingency provided that if the purchasers failed to secure a written contract for the sale of their residence, by reason of the purchasers’ “acts or failure to act,” or if the purchasers failed to deliver “a copy of the sales contract so obtained or a copy of the listing contract to Seller within the time period above specified,” the purchasers “shall be deemed in default of this Contract, and the provisions of contract shall govern.”

Among the documents completed by the purchasers for the seller in connection with the transaction were a “Confidential Customer Information Sheet” and a “Market Profile.” On the former,' the purchasers indicated the equity in their Alexandria residence was to be a source of funds for the down payment and settlement charges for their purchase. They represented the truth of that information for the purpose of establishing their “reported ability to consummate this transaction.” On the latter form, the purchasers indicated that they owned a home which was not listed for sale and that they “must sell.”

At the time of contracting, the purchasers were advised by Sandra Lindsay, an officer of Addicott Hills, that Fairfax County had not “approved Union Farms subdivision.” According to a stipulation, the “plat of subdivision was approved in August [1986] and recorded.”

Framing of the subject home was “under way” on November 13, 1986. At the end of August and in early September, Daurie Schwab, the seller’s sales agent, began asking the purchasers to list their residence for sale. These contacts were mainly with Mrs. Mann, who was a real estate agent with ten years’ experience. In November, Schwab notified Mrs. Mann that framing had started and that “it was time for her to put her house on the market.” Mrs. Mann refused this request, contending the seller was unable to furnish a delivery date for the new home at that time. The purchasers were concerned their existing residence would be sold before the new home was ready for occupancy and that they would be “out on the street without a house to move to.”

[266]*266Schwab contacted Mrs. Mann repeatedly in December and January about listing the purchasers’ home, advising her on January 9 that “it is definitely time to put the house on the market.” Mrs. Mann “refused to comply and said that the builder is not meeting his production schedule.”

On January 13, 1987, Lindsay wrote the purchasers and advised that no copy of the listing on their present home had been received. The letter stated: “In order to avoid termination of the Sales Agreement, please provide this office with a copy of your listing within five days of receipt of this letter.” In a conversation between Mrs. Mann and Lindsay following the Manns’ receipt of the letter on January 17, Lindsay offered to have the settlements on the houses coincide “to address her concerns about the moving.” Lindsay previously “had given Mrs. Mann a June completion date” for the new home.

Following the conversation, Mrs. Mann responded in writing on January 21 to Lindsay’s letter. She stated that “it looks like a quite accurate estimate of occupancy on the various lots at Union Farm should be able to be made early in March.” She wrote that she was enclosing a listing for her home effective March 1, 1987, noting she hoped to sell her home to enable the move to the new dwelling “to be house-to-house.”

In a letter dated January 30, 1987, received by the purchasers on February 2, Carl Bernstein, the seller’s president, stated that the “failure to timely list your present home for sale,” as required by the agreement, had resulted in a breach of contract.

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Bluebook (online)
384 S.E.2d 81, 238 Va. 262, 6 Va. Law Rep. 375, 1989 Va. LEXIS 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mann-v-addicott-hills-corp-va-1989.