No. 48931-3-IThe Court of Appeals of Washington, Division One.
Filed: April 15, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Skagit County, No. 99-2-00913-7, Hon. Richard J. Thorpe, May 22, 2001, Judgment or order under review.
Counsel for Appellant(s), Bradford E. Furlong, Law Office of Bradford E. Furlong P.S., 825 Cleveland Ave, Mount Vernon, WA 98273.
Counsel for Defendant(s), Bradford E. Furlong, Law Office of Bradford E. Furlong P.S., 825 Cleveland Ave, Mount Vernon, WA 98273.
Counsel for Respondent(s), Richard M. Sybrandy, P.O. Box 175, Mount Vernon, WA 98273.
Morgan M. Witt, P.O. Box 726, Mount Vernon, WA 98273-1108.
PER CURIAM.
Under the terms of a Purchase and Sale Agreement, Donna Butler had three days “after receipt of both appraisals” to reject the sale price. By requiring delivery of a “hard copy” of the appraisals, the trial court effectively rewrote the parties’ agreement. Accordingly, we reverse the trial court’s ruling and remand for further proceedings.
Facts
Respondent Donna Butler filed this action against Donald Caldwell following a dispute over an easement on real property that Butler owns in Anacortes. Following mediation on January 11, 2001, the parties agreed to settle the lawsuit by entering into a Purchase and Sale Agreement for the sale of Butler’s property to Caldwell.
Under the terms of the agreement, the purchase price was to be determined by the average of two appraisals conducted by MAI appraisers. Section 15 of the agreement provided the following mechanism for the seller to reject the appraisals:
Seller shall have until 4:30 p.m. three business days after receipt of both appraisals to notify Buyer’s attorney that she rejects the appraised price or she shall be conclusively deemed to have accepted the average appraisals as the purchase price.
Bradford Furlong, counsel for Caldwell, proposed two appraisers:
Terry Dorn, an MAI appraiser, and Garrett Martin, a non-MAI appraiser. By letters dated February 15, 2001, Furlong instructed both Dorn and Martin “to provide a copy of your appraisal” to Morgan Witt, counsel for Butler.
On March 12, 2001, Terry Dorn delivered a copy of his appraisal, listing the fair market value of the property as $340,000, to both Furlong and Witt. On the same date, Garrett Martin delivered a copy of his appraisal, for $120,000, to Furlong. Furlong then faxed a complete copy of the Martin appraisal to Witt. Witt delivered a copy of the Dorn appraisal to Butler, but did not deliver the Martin appraisal.
In his testimony, Witt explained why he did not immediately provide Butler with both appraisals:
Well, I was waiting for the original, just like I thought that there was one coming from Dorn, and Dorn had delivered — I believe Dorn had delivered it to my office directly. That was my impression. And I was waiting for the original from the Martin appraisal.[1] When asked about what information might be missing in the faxed copy of the appraisal, Witt explained:
I don’t know, sometimes the facsimiles might be different, cut off, anything like that. So that’s what I was waiting for.[2]
On March 22, 2001, Witt faxed a letter to Furlong, stating that Butler had “reject[ed] the appraised price.” Witt repeated Butler’s rejection in a second fax transmission to Furlong on March 26, 2001.
On March 29, 2001, Butler filed a Motion to Terminate Sale of Property, alleging that neither she nor her counsel had received an “original or hard copy” of Martin’s appraisal and that the Purchase and Sale Agreement should therefore be terminated. In response, Caldwell moved to compel Butler’s compliance with the Purchase and Sale Agreement, arguing that the appraisals had been delivered to Witt as Butler’s agent and that under the terms of the agreement, Butler’s failure to reject the appraisals within three days constituted conclusive acceptance of the average appraisal price.
The trial court considered the matter at an evidentiary hearing on May 14, 2001. In support of her motion to terminate the agreement, Butler argued that she had not approved the choice of Martin, a non-MIA appraiser, that the appraisals had not been delivered to her residence as required by the agreement, and that Martin had not delivered an “original” or “hard copy” of his appraisal as requested in Furlong’s letter of instruction.
After hearing testimony by Witt, Caldwell, and Furlong, the trial court found that Witt and Furlong were acting as their clients’ agents and that Witt, on behalf of Butler, had waived the MIA requirement by accepting Martin as an appraiser. The court further found that throughout the proceedings, both Witt and Furlong had transmitted information “by e-mail and facsimile, without follow-up of hard copy.” But the court concluded that the three-day rejection period for the seller had never commenced because the fax transmission of Martin’s appraisal “was contrary to the instructions to Mr. Martin to forward a hard copy of his appraisal to Mr. Witt”[3] and was therefore “not proper delivery of the appraisal to Donna Butler . . .”[4] The court explained its reasoning in its oral ruling:
Mr. Witt says that he was waiting for the original of the appraisal from Martin. And although Mr. Furlong doesn’t think that was very justified, and that he had received a fax and surely a fax wouldn’t be appreciably different, it seems to me that the fax is — well, the fax is not the original. The letter that Mr. Furlong sent to Martin instructed Martin to complete your appraisal within the next two weeks, if at all possible, provide a copy of your appraisal to Morgan Witt. And he didn’t.
Mr. Witt received the original, an original, of the Dorn appraisal, did not receive an original from Martin of the Martin appraisal. Received a fax from Mr. Furlong, but there was nothing in that fax to indicate that this was all he was going to get, that Martin was not going to follow the direction of the letter to provide the report to Morgan Witt. And nothing on that fax to indicate that the time limit is beginning to run.
Had Mr. Furlong put on the cover sheet of that fax an indication that this is delivery of the report and the three days are running, then I think Ms. Butler would be bound by it. But that’s not the case, and I think that faxes, although they’re used a lot, almost all of the — when a document of some importance, like a notice or a demand letter or something of that nature, oftentimes a fax is given in order to give the recipient an advance notice of it, but the original is always sent. Generally sent.
And I’m just satisfied that the fax is too casual a means of conveying this thing, in the face of the directions to send the appraisal report to Morgan Witt.[5] Because the three-day rejection period had never commenced, the court found that Butler’s rejection of the Martin appraisal was not untimely, that the Purchase and Sale Agreement was still in effect, and that the parties were required to choose a second MAI appraiser under the terms of that agreement. The court denied both the motion to terminate and the motion to compel and directed that an appealable judgment be entered under CR 54(b).
Decision
Caldwell contends that the trial court improperly interpreted the parties’ agreement to require delivery of a “hard copy” of the second appraisal to trigger the seller’s three-day rejection period. Given the undisputed finding that the parties communicated with each other through e-mail and facsimiles “without follow-up of hard copy,” we agree.
The “touchstone” of contract interpretation is the intent of the parties. Tanner Elec. Coop. v. Puget Sound Power Light Co., 128 Wn.2d 656, 674, 911 P.2d 1301 (1996). The intent of the parties to an agreement is determined not only from the language of the agreement, but also from “viewing the contract as a whole, the subject matter and objective of the contract, all the circumstances surrounding the making of the contract, the subsequent acts and conduct of the parties to the contract, and the reasonableness of respective interpretations advocated by the parties.” Berg v. Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222
(1990) (quoting Stender v. Twin Cities Foods, Inc., 82 Wn.2d 250, 254, 510 P.2d 221 (1973)). The ultimate goal of these principles is to ascertain the meaning of what is written in the contract, not what the parties intended to be written. Berg v. Hudesman, 115 Wn.2d at 669. Under the “context rule,” a court may consider parol evidence for the limited purpose of construing otherwise clear and unambiguous language. Berg v. Hudesman, 115 Wn.2d at 669. But extrinsic evidence is not admissible to show a party’s unilateral or subjective intent as to the meaning of a contract word or term, an intention independent of the contract, or to vary or contradict the written language of the contract. Hollis v. Garwall, Inc., 137 Wn.2d 683, 693, 974 P.2d 836 (1999). Determination of the meaning of a term in a contract involves a question of fact and examination of the objective manifestations of the parties’ intent Denny’s Restaurants, Inc. v. Security Union Title Ins. Co., 71 Wn. App. 194, 201, 859 P.2d 619 (1993). If only one reasonable meaning flows from the agreement when viewed in context, that meaning necessarily reflects the parties’ intent, but a question of fact is presented if two or more meanings are reasonable:
When a question of fact exists as to meaning, the trial court must identify and adopt the meaning that reflects the parties’ intent; the appellate court reviews the trial court’s decision for substantial evidence. Martinez v. Kitsap Pub. Servs., Inc., 94 Wn. App. 935, 943, 974 P.2d 1261 (1999). The determination of legal consequences flowing from a contract term is a question of law that we review de novo. Martinez v. Kitsap Pub. Servs., 94 Wn. App. at 943-44.
Section 15 of the Purchase and Sale Agreement specified that the three-day rejection period commenced upon “receipt of both appraisals.” In reaching its decision, the trial court determined that the agreement required receipt of a “hard copy” of the appraisal because counsel for Caldwell had directed the appraisers to `[p]rovide a copy of your appraisal report to [counsel for Butler] and Dorn had apparently delivered a `hard copy’ of his appraisal to Witt. But nothing in the trial court’s ruling indicates the basis for its interpretation of the language in Furlong’s letters to the appraisers or its theory for incorporating that document into the parties’ agreement. Butler asserts that the agreement was ambiguous and that she `had a right to expect that Mr. Martin’s appraisal report would be forwarded to him in the same manner that Mr. Dorn’s appraisal report was forwarded to him.’[6] But she cites no authority and presents no legal argument in support of this contention. Counsel for Butler testified that he was waiting for Martin to deliver an `original’ appraisal. But ‘[u]nilateral or subjective purposes and intentions about the meanings of what is written do not constitute evidence of the parties’ intentions.’ In re Marriage of Schweitzer, 132 Wn.2d 318, 327, 937 P.2d 1062 (1997) (quoting Lynott v. National Union Fire Ins. Co., 123 Wn.2d 678, 684, 871 P.2d 146 (1994)). The trial court’s rejection of the facsimile transmission of the appraisal is contradicted by its undisputed finding that both counsel transmitted information throughout the proceedings using e-mail and facsimile “without follow-up of hard copy.” Indeed, Butler’s two rejections of the appraisals were communicated solely by fax. Cf. Osprey L.L.C. v. Kelly-Moore Paint Co., 984 P.2d 194 (Okla. 1999) (faxed transmission of written notice to renew commercial lease complied with lease provision that notice “may” be given by personal delivery or registered mail).
We find nothing in the record suggesting that the parties intended the appraisals to be submitted in any specific form or delivered by any particular method. The trial court found that either the appraiser was required to deliver a “hard copy” of the appraisal or Caldwell was required to place some notice on the fax itself, indicating that the rejection period was beginning to run. In so doing, the trial court effectively modified the agreement that the parties had reached. Butler’s agent received two complete appraisals. Because Butler did not reject the appraisals within the time period specified by the agreement, she is “conclusively deemed” to have accepted the average appraisal price. Butler also argued that she had not approved the non-MAI appraiser and that the agreement required the appraisals to be delivered to her residence.
The trial court rejected those contentions, and Butler has not challenged the rulings. Accordingly, we reverse the trial court’s ruling and remand for further proceedings consistent with this opinion. Reversed.