No. 21685-3-IIIThe Court of Appeals of Washington, Division Three. Panel Seven.
Filed: November 18, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Grant County, Docket No: 01-2-01217-3, Judgment or order under review, Date filed: 12/05/2002.
Patrick Robert Acres, Attorney at Law, Moses Lake, WA, Counsel for Appellant(s).
Mitchell P. Delabarre, Jeffers Danielson Sonn Aylward PS, Wenatchee, WA, Counsel for Respondent(s).
Robert R. Jr Siderius, Jeffers Danielson Sonn Aylward PS, Wenatchee, WA, Counsel for Respondent(s).
KURTZ, J.
The failure of a condition precedent excuses performance of a contract. Here, the court entered summary judgment dismissing Sunbelt’s action to enforce an alleged agreement by Patrick and Judy Molitor to purchase Sunbelt’s rock crusher for $100,000. The court held that the Molitors’ performance was subject to Sunbelt transferring to it a conditional use permit that allowed operation of the rock crusher on the land in question. And, the undisputed evidence was that the permit was not transferred. We affirm.
For many years, Sunbelt Construction, Inc., operated a rock crusher on property owned by the Moses Lake Irrigation and Rehabilitation District. This activity was allowed by a conditional use permit. This activity also was approved by the National Park Service, which retained a reversionary interest in the property under an earlier transfer of ownership that had required the district to use it as park land
On December 14, 1999, Sunbelt, through its owner, C.A. Marchand, and Patrick and Judy Molitor signed a `Letter of Understanding’ (the `Letter’). Clerk’s Papers (CP) at 7-8. The Letter expressed the Molitors’ interest in purchasing the rock crusher and assignment of the conditional use permit which allowed that activity on the district’s property. It read, in pertinent part, as follows:
1. Molitor is interested in purchasing and Sunbelt is interested in selling its rock crusher which has been operated [at] Connelly Park, Grant County, Washington. Sunbelt will also assign to Molitor, its Conditional Use Permit to operate the rock crusher (see copy attached hereto as Exhibit `A’). The Parties agree Molitor will pay Sunbelt $100,000.00 for the crusher and assignment of the permit.
. . . .
5. The Agreement will be subject to the Moses Lake Irrigation and Rehabilitation District approval to operate the rock crusher on a portion of park property.
6. The Agreement will be subject to Grant County’s acknowledgment of assignment of the Conditional Use Permit.
CP at 7 (emphasis added). The Letter referenced an attachment, Exhibit A, which was described in the Letter as a copy of the conditional use permit for the property in question. However, both sides now agree that Exhibit A is a permit for another piece of property.
Almost two years later, in November 2001, Sunbelt filed suit against the Molitors and the Molitors’ corporation, Moses Lake Travel Plaza, seeking damages for the Molitors’ alleged breach of contract in failing to purchase the rock crusher. The Molitors answered, disputing that the Letter was a contract and, in the alternative, contending that a condition precedent to the Molitors’ performance, i.e., Grant County’s acknowledgment of assignment of the conditional use permit, had not occurred. The Molitors subsequently moved for summary judgment of dismissal.
In opposition to the Molitors’ motion for summary judgment, Sunbelt filed the affidavit of its owner, C.A. Marchand He stated: `I know I was granted a Conditional Use Permit to produce sand and gravel at the Airman’s Beach location. I cannot find the permit. Insofar as I know, there was no time limitation on the permit.’ CP at 62. Sunbelt also filed the affidavit of Billie Sumrall, who was the Planning Director for Grant County from January 1985 until September 1995. She stated, as follows:
I have reviewed the Grant County Board of Adjustment Minutes from March 13, 1985, . . . and Sunbelt Construction was granted a Conditional Use Permit for an asphalt plant, cement concrete batch plan[t] in conjunction with crushing, screening and stockpiling operations in a portion of Section 31, Township 20 N., Range 28 E.W.M., which is an existing gravel pit located west of and adjacent to Highway 17 and to the south of the road to Airman’s Beach.
CP at 65-66 (emphasis added).
However, a perusal of the minutes of the 1985 Board of Adjustment meeting does not support a finding that Sunbelt had a conditional use permit for rock crushing on the site. Rather, Ms. Sumrall advised the Board that a `permit was issued several months ago to the Moses Lake Irrigation and Rehabilitation District’[1] for a rock-crushing operation, and that Sunbelt’s request, currently before it, was for a permit for an asphalt plant and a concrete batching plant.
The record also contains a copy of a conditional use permit for rock crushing on the property that the Board issued on March 31, 1982, to Northwest Paving and Construction Company, Inc. and a permit issued by the Board on June 13, 1984, approving the transfer of the permit from Northwest Paving to the irrigation district. The record contains no evidence that Sunbelt ever held a permit for rock crushing at that location. Rather, the inference available from the record is simply that Sunbelt operated a rock crusher on the district’s property up until 2000 with the district’s permission and under a conditional use permit issued to the district.
Sunbelt also attached to its brief opposing summary judgment a copy of an agreement the Molitors allegedly proposed to the district in 2000 in which the district would agree to license the Molitors’ holding company, Moses Lake Travel Plaza, to use the subject property for a rock-crushing operation for five years. The document is unsigned.[2]
The superior court issued a memorandum opinion in which it indicated it would grant the Molitors’ motion for summary dismissal of Sunbelt’s claim against it. The court held that there was an agreement, but that it was contingent upon the assignment of the conditional use permit to the Molitors. And, the contingency had not occurred. On October 4, 2002, the court entered the order of summary judgment. It later denied Sunbelt’s motion for reconsideration.
Do material issues of fact exist as to (1) whether the parties’ `Letter of Understanding’ is an enforceable agreement under Article 2 of the Uniform Commercial Code, as codified in chapter 62A.2 RCW, and (2) whether the transfer of the conditional use permit to the Molitors is a condition precedent to the Molitors’ performance?
The Molitors base their motion for summary judgment on two arguments. The first argument is that the Letter of Understanding is not an enforceable contract. The superior court disagreed with the Molitors and held it was an enforceable contract. But, the court nevertheless granted them summary judgment on their second argument — that Sunbelt had not satisfied a condition precedent to the Molitors’ performance, i.e., the assignment and acknowledgement of the conditional use permit. Since the second argument is dispositive, we confine our opinion to it.
“Conditions precedent’ are those facts and events, occurring subsequently to the making of a valid contract, that must exist or occur before there is a right to immediate performance[.]’ Ross v. Harding, 64 Wn.2d 231, 236, 391 P.2d 526 (1964) (citing 3A Corbin, Contracts, sec. 628, at 16). `Proof of performance of an express condition precedent is a burden which must be met by the party who seeks enforcement of the contract.’ Id. at 240. `Since an express condition is a contract term and part of the bargain, literal operation of the condition is normally to be anticipated.’ Warren L. Shattuck, `Contracts in Washington, 1937-1957: Part III,’ 34 Wash. L. Rev. 467, 469 (1959). `Unless it has been excused, the non-occurrence of a condition discharges the duty when the condition can no longer occur.’ Restatement (Second) Contracts sec. 225(2) (1979).
Here, the Letter of Understanding is expressly `subject to Grant County’s acknowledgment of assignment of the Conditional Use Permit.’ CP at 7. This language created an express condition precedent to the Molitors’ performance. It appears from this record that the Moses Lake Irrigation and Rehabilitation District is the owner of the property in question and is the entity holding the conditional use permit for rock crushing issued in 1984 by the Board of Adjustment. The record contains no evidence that the irrigation district has agreed to assign the permit to the Molitors, or that the Board of Adjustment would approve such a transfer. Indeed, the fact the district did not sign the `License Agreement,’ which apparently the Molitors drafted in an effort to secure the district’s approval of it continuing Sunbelt’s rock-crushing activity on its property, is evidence that the district did not intend to assign the conditional use permit to the Molitors.
Sunbelt, as the party seeking to enforce the alleged agreement, had the burden of proving that the express condition precedent had occurred. While it showed that it had operated a rock crusher on the site for many years, it did so under contract with the property owner, the irrigation district. The irrigation district was the entity with the permit, and there is no evidence in the record that the district has assigned it to the Molitors and/or secured the permission of the Grant County Board of Adjustment to transfer the permit. In the complete absence of such evidence, Sunbelt has failed to create the issue of material fact it needs to avoid summary judgment of dismissal.[3]
Because the failure of the condition precedent excused the Molitors from performing under the alleged contract, the summary judgment of dismissal was proper. We therefore do not address the Molitors’ argument that the letter was not an enforceable contract.
Affirm.
The 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.
WE CONCUR: Kato, A.C.J. and Schultheis, J.