No. 26621-4-III.The Court of Appeals of Washington, Division Three.
September 11, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-2-03849-0, Kathleen M. O’Connor, J., entered October 23, 2007.
BROWN, J.
Ann M. Danimus appeals the bench trial decision granting rescission of a condominium equity share agreement (ESA) with Daniel M. Colangelo. She contends the evidence does not support findings of consideration or delivery. We disagree, and affirm.
FACTS
In 2001, while Ms. Danimus and Mr. Colangelo were dating, Ms. Danimus learned about a condominium opportunity when she was working as a resort marketing manager in Mexico. Ms. Danimus contacted Mr. Colangelo, who agreed to purchase the condominium for $68,000. The parties extensively remodeled the condominium.
Mr. Colangelo paid for the expenses and Ms. Danimus worked as the “contractor,” negotiating with workers, choosing products, and providing Spanish/English translation services. Report of Proceedings (RP) at 14.
In July 2003, when the parties’ relationship began to deteriorate, they entered into an ESA, agreeing to a 50 percent interest in the net profit if the condominium sold. Ms. Danimus would pay Mr. Colangelo simple interest of “0.75% on [Mr. Colangelo’s] investment total of $125,000” capping at $10,000. Ex. P1. Interest would start accruing on October 1, 2003 and be payable “from the net profit of [Ms. Danimus] at close of sale of said property.” Ex. P1. If they decided to rent the condominium, the ESA provided that the terms of the rental procedure would be discussed by the parties in the future.
On November 12, 2003, Mr. Colangelo was residing in the still unrented and unsold condominium when Ms. Danimus made a surprise visit. According to Mr. Colangelo, she told him she needed “to get on with [her] life.” RP at 183. She handwrote a document that stated, “I, Ann Marie Danimus, relinquish my legal claim and equity share on the Condominium. . . . I am going to LA in seven days and the Condo has outlived its usefulness to me.” Ex. D6. She then dated and signed the note. Ms. Danimus placed the note on the coffee table across from Mr. Colangelo. She then spent the night at the condominium and left the next morning. She claims before she left she threw the note in the garbage. According to Mr. Colangelo, he put the note in his pocket and then in his safe.
In August 2006, Ms. Danimus sued Mr. Colangelo for breach of contract. The court entered findings of fact and conclusions of law, after concluding the November 12 note was a valid rescission, properly delivered to Mr. Colangelo; therefore, no breach of contract occurred. Ms. Danimus appealed.
ANALYSIS
The issue is whether the trial court erred in deciding consideration and delivery supported rescission of the parties’ ESA. Ms. Danimus argues the court’s findings of consideration and delivery are unsupported by the facts. She asserts the evidence does not support findings that she had an interest obligation to discharge or that the condominium was not useful to her anymore.
We review findings of fact for substantial evidence, “defined as a quantum of evidence sufficient to persuade a rational fair-minded person the premise is true.” Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003). We will not substitute our judgment for that of the trial court, even if we might have resolved the fact dispute differently. Id. at 879-80. Credibility determinations are solely for the trier of fact and cannot be reviewed on appeal. Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003). Unchallenged findings of fact are verities on appeal. Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002). We review conclusions of law de novo Sunnyside Valley Irrigation Dist., 149 Wn.2d at 880.
A. Consideration. “Rescission means to abrogate or annul.”Busch v. Nervik, 38 Wn. App. 541, 547, 687 P.2d 872
(1984). “`In order for rescission to be legally operative, all parties to the contract must consent to rescission by words or objective conduct.'” Schoneman v. Wilson, 56 Wn. App. 776, 781, 785 P.2d 845 (1990) (quoting Modern Builders, Inc. of Tacoma v. Manke, 27 Wn. App. 86, 92, 615 P.2d 1332
(1980)). Rescission entails a restoration to status quo Morango v. Phillips, 33 Wn.2d 351, 357, 205 P.2d 892
(1949). “[A]dditional consideration is required for the valid formation of a . . . subsequent agreement.” Labriola v. Pollard Group, Inc., 152 Wn.2d 828, 834, 100 P.3d 791
(2004). “Consideration is any act, forbearance, creation, modification or destruction of a legal relationship, or return promise given in exchange.” King v. Riveland, 125 Wn.2d 500, 505, 886 P.2d 160 (1994).
Here, Ms. Danimus met with Mr. Colangelo at the condominium. According to Mr. Colangelo, she told him she needed “to get on with [her] life.” RP at 183. She handwrote a document that stated that she relinquished her equity share in the unit because she was “going to LA in seven days and the Condo has outlived its usefulness to me.” Ex. D6. Mr. Colangelo received full interest in any future profit from the condominium and Ms. Danimus was released from liability for future interest payments and concern regarding the unit, since she intended to move to California. Sufficient consideration supports the rescission. Therefore, substantial evidence in the record supports the trial court’s finding that there was a valid rescission.
B. Delivery. Ms. Danimus provides no legal authority for her argument that a mutual rescission requires delivery. Instead, she equates a rescission with a gift of real property. Actual delivery is one of the requirements of an inter vivos gift Oman v. Yates, 70 Wn.2d 181, 185, 422 P.2d 489 (1967) Buckerfield’s Ltd. v. B.C. Goose Duck Farm Ltd., 9 Wn. App. 220, 224, 511 P.2d 1360 (1973). Similarly, “[a] deed does not take effect until delivery.” Raborn v. Hayton, 34 Wn.2d 105, 109, 208 P.2d 133 (1949). “Possession by the grantee raises a presumption of delivery.”Id. A mutual rescission, however, is an agreement to abrogate a contract. In this sense, rescission is not a gift that requires delivery.
Nevertheless, Ms. Danimus wrote out the rescission, placed it on the coffee table in front of Mr. Colangelo, and then Mr. Colangelo placed it in his pocket. While Ms. Danimus testified otherwise, credibility determinations are solely for the trier of fact and cannot be reviewed on appeal. Morse, 149 Wn.2d at 574. These facts satisfy the requirements for delivery. Substantial evidence supports the trial court’s finding that the rescission was validly delivered.
Because the findings support the trial court’s conclusion that the ESA was rescinded, the court properly entered judgment in Mr. Colangelo’s favor.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and SCHULTHEIS, C.J., Concur.