Ouellette v. Filippone

745 A.2d 161, 2000 R.I. LEXIS 31, 2000 WL 157476
CourtSupreme Court of Rhode Island
DecidedFebruary 11, 2000
DocketNo. 98-403-Appeal
StatusPublished
Cited by2 cases

This text of 745 A.2d 161 (Ouellette v. Filippone) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ouellette v. Filippone, 745 A.2d 161, 2000 R.I. LEXIS 31, 2000 WL 157476 (R.I. 2000).

Opinion

OPINION

PER CURIAM.

In this appeal, Ronald and Barbara Ouellette (collectively, the plaintiffs) appeal from the entry of final judgment denying their claim to recover a real estate purchase deposit from Bruce L. Filippone, the defendant, and from an award of damages to Filippone on his counterclaim alleging a breach of the real estate purchase contract.

In their appeal, the plaintiffs contend that the trial justice was clearly wrong in concluding that their failure to resolve an existing record of a real estate foreclosure of property owned by them, that had occurred prior to the time the instant purchase and sale agreement was signed and which automatically precluded them from [162]*162obtaining a loan, served to indicate a lack of good faith and due diligence on their part. They also assert that because the trial justice, in his decision, did not specifically address the defendant’s counterclaim, and because he failed to make any findings of either fraud or failure on their part to perform a specific contractual obligation, the defendant’s damages should have been limited only to his retention of the deposit. Finally, the plaintiffs maintain that application of the statutory rate of interest unfairly penalizes them because they at no time benefited from the deposit money during the pendency of the controversy.

We ordered the parties to appear and show cause why the issues raised in the plaintiffs’ appeal should not be summarily decided. After hearing their oral arguments and reviewing their respective memoranda, we conclude that no cause has been shown and we proceed at this time to summarily decide the issues.

On June 15, 1993, the plaintiffs attended an open house at the defendant’s home held for purposes of its proposed sale.1 They made an offer to purchase the property for $166,500. The plaintiffs gave the defendant an initial deposit of $300, and the parties agreed to obtain counsel to facilitate and formalize the transaction. There were no real estate brokers involved in the proposed sale of the property.

In January 1993, plaintiff Ronald Ouel-lette applied for and received a credit report indicating that, although paid in full at the time of the report, a previous real estate mortgage by him had been delinquent for 180 days in September 1991. At trial, Ouellette testified that in 1991, Heritage Bank for Savings (Heritage Bank) had foreclosed on the particular mortgage to which the credit report referred. The credit report also indicated that one of Ouellette’s credit card accounts had been delinquent for a period of ninety days.

On June 14, 1993, the day before actually attending the open house and viewing the defendant’s property, the plaintiffs had filed a loan application with Park Square Credit Union (Park Square). That application was denied several days later because Park Square was unable to verify the outstanding mortgage deficiency balance, if any, that remained from the earlier Heritage Bank foreclosure. Ouellette testified that a Park Square officer had told him and his wife that they would have to take care of the foreclosure matter before it would consider granting them a mortgage.

Subsequently, on July 6, 1993, the plaintiffs nonetheless signed the purchase and sale agreement to purchase the defendant’s house. The agreement had been negotiated by their respective and former attorneys. The plaintiffs then paid an additional purchase deposit of $8,075. Pursuant to the purchase and sale agreement,, a mortgage contingency clause stated:

“In order to help finance the acquisition of the Premises, Buyers shall apply to a home mortgage loan lender for a home mortgage loan in the amount of $_ at an interest not to exceed current available rates for fixed mortgage loans. If, despite Buyers’ diligent efforts to obtain such a loan commitment, they are unable to do so by August 1, 1993, Buyers may terminate this Agreement by written notice to Seller postmarked no later than one (1) business day after the expiration of such date, whereupon all deposits made hereunder shall be refunded forthwith and this instrument shall be voided and without recourse to either party. Buyers shall also send a copy of the mortgage commitment letter to Seller, or a denial thereof.” (Emphasis added).

At trial, Ouellette testified that, in the four to six weeks following the June 14, 1993, Park Square loan application, he had attempted to seek financing from three other financial institutions.2 Not surpris[163]*163ingly, those financial institutions also denied the applications for reasons similar to those given by Park Square. Each institution informed Ouellette that he would have to clear up the Heritage Bank foreclosure matter before it would consider his application. Ouellette admitted that thereafter, he never attempted to investigate or to resolve the problems related to the Heritage Bank foreclosure.

At trial, former counsel for the plaintiffs, Richard Kyte, Jr., testified that he had attempted to discover the status of the Heritage foreclosure, but because Heritage Bank had been a victim of the recent state banking crisis, and had since been succeeded by another bank, he was unable to “gather any information to intelligently advise my client as to what the status of this loan was.” On June 29, 1993, Kyte wrote to the defendant’s former counsel and informed him of the difficulties that his clients were experiencing in obtaining a mortgage commitment. He requested an extension of the plaintiffs’ mortgage contingency deadline. It is undisputed that the defendant agreed to extend the deadline from August 1, 1993, to September 1, 1993. At trial, Ouellette admitted, however, that he did not file any additional loan applications during this extension period.

In late August 1993, Kyte contacted the defendant’s former attorney and informed him that the plaintiffs would be unable to meet the extended September 1, 1993, mortgage contingency deadline. On September 9, 1993, Kyte submitted a written request for the refund of the plaintiffs’ deposit. Included with the request was a copy of the notice of mortgage rejection from Park Square. The rejection notice was dated September 7,1993. Subsequent efforts to resolve the deposit or purchase and sale impasse proved fruitless. On November 11, 1993, the defendant put his property back on the open real estate market and, on March 21, 1994, the property was sold for $160,000. The defendant was required to pay a commission of $4,800 to his real estate broker.

After trial and reviewing the evidence, the trial justice denied the plaintiffs’ claim. He concluded that the plaintiffs had neglected to comply with the express provisions of the purchase and sale agreement. He found that they had failed to exercise due diligence in obtaining a mortgage loan commitment, as required by the agreement, in order to be entitled to a return of their deposit. The trial justice then, after consideration of the defendant’s counterclaim, entered a final judgment of $11,300 in favor of the defendant.

In reaching his decision, the trial justice acknowledged that, although there had been verbal communications between the parties concerning the plaintiffs’ inability to obtain mortgage financing, nevertheless:

“whatever the contact between the parties or their counsel, it appears that the explicit conditions of deposit return and voiding of contract was not met by the plaintiff buyer.

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Bluebook (online)
745 A.2d 161, 2000 R.I. LEXIS 31, 2000 WL 157476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ouellette-v-filippone-ri-2000.