No. 29098-7-IIThe Court of Appeals of Washington, Division Two.
Filed: July 1, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Pacific County Docket No: 01-2-00357-9 Judgment or order under review Date filed: 06/21/2002
Counsel for Appellant(s), James Arthur Connolly, Attorney at Law, 201 5th Ave SW Ste 301, Olympia, WA 98501-1063.
Counsel for Respondent(s), Christopher Marti Constantine, of Counsel Inc PS, P.O. Box 7125, Tacoma, WA 98406-0125.
SEINFELD, J.
Ervin and Gloria Neff purchased property from Ronald and Leona Stovall by executing a promissory note and deed of trust. The deed obligated the Stovalls to release from the deed half the property after the Neffs made two years of payments on the note. The trial court granted the Neffs specific performance of the release provision. But the court conditioned its order on the Neffs’ payment of past due principal, past due property taxes, attorney fees, foreclosure costs, and a tax lien encumbering the property. Holding that the trial court had the authority to fashion an equitable remedy but that requiring payment of past due principal was inconsistent with the parties’ contract and unrelated to the release, we affirm in part and reverse in part.
FACTS
Ervin Neff approached Ronald Stovall about buying six lots in Long Beach, Washington. After some negotiations, the Stovalls agreed to sell the property for $80,000: $40,000 down and a promissory note for the balance, along with a deed of trust covering all six lots to secure the note.
The deed of trust required the Stovalls to release three of the lots (the `release lots’[1] ) after the Neffs made two years of payments on the promissory note, leaving the note secured only by the remaining three lots. But after the Neffs made the requested payments on the note for two years, neither they nor the Stovalls took steps to execute the release provision.
After the two year period, Ervin Neff experienced health problems that led to the closure of his business and his filing for bankruptcy in 2000. He missed payments on the note and also failed to pay property taxes on the lots for 1997-2001. The lots became encumbered by several tax liens, including a B O tax lien in favor of the City of Long Beach. To prevent foreclosure by the County, in 2001 Stovall paid the past due property taxes. The record suggests that he may have also paid the City of Long Beach lien. Later that year, the deed of trust’s trustee issued a notice that he was going to sell all six lots because of the Neffs’ default on the promissory note.
The Neffs then brought this action against the Stovalls for specific performance of the release provision and to enjoin the trustee’s sale of the release lots. The Stovalls counterclaimed, seeking (1) a judgment for the promissory note’s balance of $38,000.00; (2) foreclosure on all six lots under the deed of trust if the Neffs did not pay the judgment; (3) dismissal of the Neffs’ suit with prejudice, including a finding that the release provision is void; (4) attorney fees and costs; (5) the amount of property taxes that the Stovalls had paid; and (6) `judgment for liens’ encumbering the property. Clerk’s Papers (CP) at 37.
The trial court enjoined the sale of the release lots until resolution of the Neffs’ suit for specific performance. Both parties then moved for summary judgment. The Stovalls argued that because the Neffs had failed to disclose their interest in the release lots to the bankruptcy court, they were judicially estopped from seeking specific performance of the release provision.
The trial court rejected this argument but held that before the Neffs could obtain specific performance, they `must first do equity.’ CP at 208. Accordingly, it granted judgment to the Stovalls in an amount that included the promissory note’s past due principal, the City of Long Beach lien, property taxes, attorney fees, and foreclosure costs. In return, the court ordered the Stovalls to release the release lots if the Neffs satisfied this judgment within thirty days. If the Neffs did not make timely payment of the judgment, the Stovalls were free to sell the lots.
The Neffs appeal this ruling.[2]
DISCUSSION
The Neffs argue that the deed of trust required the Stovalls to release the release lots after the Neffs made two years of payments on the promissory note and that the Neffs’ failure to make payments after those two years did not affect this requirement. Thus, the Neffs argue, the trial court erred by imposing conditions on the release of the release lots.
The Stovalls respond that their obligation to release did not arise automatically after the Neffs made two years of payments on the promissory note. They assert that specific performance is an equitable cause of action and that the trial court has discretion to fashion an equitable remedy. Thus, they argue, the trial court did not err by conditioning their obligation to release on the Neffs’ payment of the judgment.
I. Release Requirement
The basic goal of contract interpretation is to determine the intent of the parties. Tanner Elec. Coop. v. Puget Sound Power Light Co., 128 Wn.2d 656, 674, 911 P.2d 1301 (1996). For written contracts, the court ascertains the intended meaning from the words the parties used. Berg v. Hudesman, 115 Wn.2d 657, 669, 801 P.2d 222 (1990) (citing J.W. Seavey Hop Corp. v. Pollock, 20 Wn.2d 337, 348-49, 147 P.2d 310 (1944)). When the intended meaning of written words is unclear, courts may look to objective manifestations of the parties’ intent, including 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, 115 Wn.2d at 667 (quoting Stender v. Twin City Foods, Inc., 82 Wn.2d 250, 254, 510 P.2d 221 (1973)).
A party’s unilateral and subjective intentions are irrelevant. Hollis v. Garwall, Inc., 137 Wn.2d 683, 695, 974 P.2d 836 (1999). If the written words are clear or only one reasonable inference can be drawn from the extrinsic evidence, interpreting a contract provision is a question of law, Tanner, 128 Wn.2d at 674, and summary judgment is appropriate. Scott Galvanizing, Inc. v. Northwest EnviroServices, Inc., 120 Wn.2d 573, 582, 844 P.2d 428, rev’d, 120 Wn.2d 1002 (1993).
The deed of trust provides:
**Note-Special Condition: Beneficiary [Stovalls] herein, hereby agrees to release the North half of said property (Lots 1 2, Block 21, Plat of Pioneer and Lot 2, Block 2, Plat of Sea-Crest) from this Deed of Trust after two years of payments on Promissory Note of even date have been made
CP at 41. The plain and unambiguous language of this provision obligated the Stovalls to release the lots from the deed of trust automatically after the Neffs made two years of payments on the promissory note. The Stovalls’ arguments to the contrary are unpersuasive.
Specifically, the Stovalls argue that read as a whole, other provisions in the deed of trust indicate that their obligation to release did not arise automatically. First, they point to the provision that ‘[t]he Trustee shall reconvey all or any part of the property covered by this Deed of Trust to the person entitled thereto, on written request of the Grantor [Neffs] and the Beneficiary [Stovalls], or upon satisfaction of the obligation secured and written request for reconveyance made by the Beneficiary [Stovalls] or the person entitled thereto.’ CP at 42 (emphasis added). They argue that this provision indicates that `to obtain a release of the release lots, it was incumbent upon the Neffs to submit a written request therefor.’ Br. of Respondent at 13.
But that provision explains when the trustee’s duty to reconvey the property arises and specifies when and how the parities can make such a request. It does not govern when or how the Stovalls’ obligation to release arises.
The Stovalls also point to the provision requiring the Neffs ‘[t]o pay before delinquent all lawful taxes and assessments upon the property; to keep the property free and clear of all other charges, liens or encumbrances impairing the security of this Deed of Trust.’ CP at 42.
They argue that the Neffs’ obligations under this provision are conditions precedent to the Stovalls’ obligation to release the release lots. Thus, the Stovalls contend that because the Neffs failed to pay taxes and keep the property clear of liens, the Stovalls’ obligation to release never became due. But this provision appears to be an independent promise, rather than a condition precedent. Conditions precedent deal with facts and events occurring subsequent to making a valid contract that must exist or occur before a party is entitled to immediate performance. Ross v. Harding, 64 Wn.2d 231, 236, 391 P.2d 526 (1964). By contrast, breach of a promise subjects the promisor to liability in damages, but it does not excuse the other party’s obligation to perform. 5 Williston, Contracts (3d ed.) sec. 665, at 132 (1957).
In determining whether language in a contract describes a condition precedent, we note that ‘[a]ny words which express, when properly interpreted, the idea that the performance of a promise is dependent on some other event will create a condition. Phrases and words such as `on condition,’ `provided that,’ `so that,’ `when,’ `while,’ `after,’ or `as soon as’ are often used.’ Ross, 64 Wn.2d at 237. But where, as here in the tax payment provision of the deed of trust, the provision contains no words of condition, we read it as a promise. Further, the release condition is followed by a signature line, then a broad description of the document’s purpose, and finally a detailed enunciation of the Neffs’ obligations, which are described as `covenants and agree[ments]’ (terms synonymous for promises). CP at 41-42. The tax payment provision is one of those obligations. This provides further evidence of the parties’ intent that the Stovalls’ obligation to release was not conditioned on the Neffs’ obligation to pay taxes and keep the property free of liens and encumbrances.
The Stovalls also refer to Ronald Stovall’s testimony that he thought that his obligation to release was conditioned upon the Neffs paying the property taxes and keeping the property free of liens. But a party’s unilateral and subjective intentions are irrelevant. Hollis, 137 Wn.2d at 695.
Finally, we construe the release provision against the Stovalls, the drafting party. Guy Stickney, Inc. v. Underwood, 67 Wn.2d 824, 827, 410 P.2d 7 (1966) (‘[C]ontract language subject to interpretation is construed most strongly against the party who drafted it, or whose attorney prepared it.’). Thus, the Stovalls’ obligation to release arose automatically after the Neffs made two years of payments on the promissory note.
II. Specific Performance
Specific performance is an equitable remedy governed by equitable principles. Cascade Timber Co. v. N. Pac. Ry. Co., 28 Wn.2d 684, 711, 184 P.2d 90 (1947). `This remedy, useful through the ages and governed by established principles of equity, rests in the sound discretion of the court and is controlled by a just and fair consideration of all the facts and circumstances of each particular case.’ Cowley Strickland v. Foster, 143 Wn. 302, 306-07, 255 P. 129 (1927).
A trial court sitting in equity has broad discretion in fashioning remedies `to do substantial justice to the parties and put an end to litigation.’ Carpenter v. Folkerts, 29 Wn. App. 73, 78, 627 P.2d 559
(1981). A reviewing court will not disturb an exercise of such discretion unless it is manifestly unreasonable or based on untenable grounds. Paris v. Allbaugh, 41 Wn. App. 717, 720, 704 P.2d 660 (1985).
Here, the court conditioned specific performance of the release provision on the Neffs’ payment of the Stovalls’ judgment within 30 days.
The judgment included (1) $6,647.98 in property taxes paid by the Stovalls; (2) a City of Long Beach B O tax lien[3] apparently paid by the Stovalls; (3) $5,268.00 in attorney fees; (4) $1,987.66 in foreclosure costs; and (5) $16,800.00 in past due principal on the promissory note.
Equitable principles support requiring the Neffs to repay the Stovalls for the property taxes and Long Beach lien. The Stovalls’ payment of these items benefited the release lots and the Neffs. Thus, it was an appropriate exercise of discretion to condition release upon the Neffs’ repayment of those amounts. See Phillips v. Wenatchee Valley Fruit Exch., 124 Wn. 425, 427-28, 214 P. 837 (1923).[4]
The trial court also properly required the Neffs to pay the Stovalls’ attorney fees and foreclosure costs. Generally, a party in default cannot enforce specific performance of a contract provision. Kreger v. Hall, 70 Wn.2d 1002, 1009, 425 P.2d 638 (1967); Ferris v. Blumhardt, 48 Wn.2d 395, 402, 293 P.2d 935 (1956). And the deed of trust requires the Neffs to pay the Stovalls’ foreclosure costs[5] and attorney fees.[6] See McLeod v. Keith, 69 Wn.2d 201, 204, 417 P.2d 861 (1966) (upholding trial court’s order requiring seller to specifically perform a stock purchase agreement, even though purchaser breached the agreement by missing payments, if purchaser pays the purchase price plus interest on the past due payments).
But the trial court erred by conditioning specific performance on the Neffs’ payment of past due principal. We acknowledge that as all six lots provide security for the note, it may seem inequitable to require the Stovalls to release part of the note’s security when the Neffs have missed payments. But the Stovalls took this specific risk when they agreed to the sale price and the terms of the deed of trust and signed the contract. Am. Nursery Prod. v. Indian Wells Orchards, 115 Wn.2d 217, 252, 797 P.2d 477 (1990) (‘[P]arties may allocate risks in exercising their freedom to contract,’ although not every allocation of risk is enforceable). Conditioning release on the Neffs’ payment of the note’s past due principal improperly shifts that risk back to the Neffs.
The Neffs did not agree in the deed of trust to pay off the note balance before obtaining release. If, as the parties agreed, the Stovalls had released the lots after the Neffs made two years of payments, the release lots would no longer provide security for the note. Thus, the fact that the lots still secure the note does not provide a basis for requiring the Neffs to pay the note’s past due principal in order to obtain enforcement of the Stovalls’ obligation to release. Because conditioning specific performance of the release provision on the Neffs’ payment of the note’s past due principal fails to consider the parties’ agreement and their allocation of the risks, it does not do substantial justice to the parties.[7] As this remedy does not rest on tenable grounds, we hold that it does not comport with equitable principles.
ATTORNEY FEES
The Stovalls request attorney fees on appeal. But they fail to devote a section of their brief to the request, nor do they provide any supporting argument. They merely make a bald request for fees in their brief’s conclusion. Thus, they are not entitled to attorney fees. See RAP 18.1(b) (`The party must devote a section of the brief to the request for the fees or expenses.’); Thweatt v. Hommel, 67 Wn. App. 135, 148, 834 P.2d 1058 (1992) (`RAP 18.1(b) requires more than a bald request for attorney fees on appeal.’).
Accordingly, we reverse the trial court’s order conditioning the release of the release lots on the Neffs’ payment of the past due principal. We affirm the balance of the judgment.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, C.J. and HOUGHTON, J., concur
Thereafter, the Webers conveyed their interest in the contract and property to Wenatchee Valley Fruit Exchange. Phillips, 124 Wash. at 426. The Phillips sued Wenatchee Valley Fruit Exchange to compel it to execute the deed and mortgage. Phillips, 124 Wash. at 426-27. The Phillips court upheld the trial court’s judgment requiring the Phillips to repay the advanced funds before receiving equitable relief. 124 Wash. at 427-28.
The court reasoned that [i]t is a well known principle that he who seeks equity must do equity, and this money having been paid by [Wenatchee Valley Fruit Exchange] upon the contract whereby the rights of [the Phillips] were protected and preserved, [the Phillips] cannot insist upon a deed to the property without first paying the amount so advanced by [Wenatchee Valley Fruit Exchange]. Phillips, 124 Wash. at 427-28.