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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Romero v. Cox (08/31/2007) sp-6153
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| GEORGE M. ROMERO, | ) |
| ) Supreme Court No. S- 11267 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-01-9000 CI | |
| v. | ) |
| ) O P I N I O N | |
| GARY O. COX, | ) |
| ) No. 6153 - August 31, 2007 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: George M. Romero, pro se,
Anchorage. M. Gregory Oczkus, Greg Oczkus
Law Offices, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
George Romero and Gary Cox executed an Earnest Money
Receipt and Agreement for Romeros purchase of three lots and a
mobile home. Romero took possession of the property, but the
sale never closed. More than three years after the agreement was
executed, Cox sued for forcible entry and detainer (FED) and
damages. Romero vacated the premises by stipulation but
counterclaimed for specific performance and damages. The superior
court granted Cox partial summary judgment on the specific
performance claim because Romero was unable to perform the
contract. Following trial, the court awarded Cox damages for the
propertys reasonable rental value and for utility bills Cox had
paid while Romero lived on the property. The court found that
Romero failed to prove that he was entitled to any damages, but
did not address Romeros contention that Cox failed to return
twenty apple trees that had been left on the property when Romero
vacated it.
Romero appeals pro se.
We affirm the superior courts decision, but remand for
consideration of Romeros claim that Cox is liable for failing to
return the twenty apple trees.
II. FACTS AND PROCEEDINGS
By Earnest Money Receipt and Agreement signed in
February 1998, George Romero agreed to buy from Gary Cox a mobile
home and three lots in the Frislie Subdivision in Anchorage. The
price was $110,000. Romero paid Cox earnest money of $1,000 and
was to pay $14,000 more at closing, for a total down payment of
$15,000. Cox financed the remaining $95,000 at eight percent over
fifteen years. Closing was to occur within sixty days after Cox
obtained a title insurance policy or report, and Cox was to
obtain the policy or report within 120 days of April 14, 1998.
On April 17, 1998 Cox obtained a Preliminary Commitment
for Title Insurance effective as of April 14. On May 23 Romero
wrote Cox a check for $4,000 with the notation partial closing on
its face. Romero never paid Cox the remaining $10,000.
According to Cox, Romero moved onto the property in April 1998.
Coxs attorney served Romero with a notice to quit in
July 2001. Cox then sued for forcible entry and detainer and
damages, and on July 30 the parties signed a stipulation
requiring Romero to vacate the premises and remove his personal
effects by August 7. The parties later extended this deadline to
September 30, but Romero did not remove all of his personal
property by that time.
Romero filed an answer and a counterclaim for specific
performance and damages.1 Upon motion by Cox, the superior court
granted partial summary judgment on the specific performance
claim because Romero was unable to deposit the accumulated
interest, real property taxes paid by the Plaintiff[,] . . . and
the balance of the down payment. The court calculated the total
amount due under the agreement as $41,455.71.2
Because Romero had not removed his personal property, a
second order required Romero to remove his property by May 31,
2002 except for items covered by snow. They were to remain on
the land until Coxs attorney notified Romero that the snow had
melted, at which time Romero could enter and remove them.
Although Cox had already been granted summary judgment
on the specific performance claim, Romero moved for summary
judgment on that claim. He also requested certification under
Alaska Civil Rule 54(b) and relief from judgment under Alaska
Civil Rule 60(b). A hearing was set for November 4, 2002.
Because Romero did not appear on time for oral argument, the
court ruled that it would rely on the filings. On November 6 the
court denied Romeros summary judgment motion, which the court
described as a motion to reconsider, and also denied his Rule
54(b) and Rule 60(b) motions. Romero moved for reconsideration
and again requested specific performance. The superior court
denied the motion as moot because the property had already been
sold to a third party.
The court held a bench trial on the breach of contract
and damages claims in September 2003. Romero and Cox gave
different explanations at trial for why the sale never closed.
Romero testified that Cox failed to remove trash and contaminated
soil from the property and failed to vacate certain easements.
Cox testified that he had been ready to close in 1998, but that
Romero had said he could not close until his divorce was final
and his assets were freed. Cox and his witnesses disputed
Romeros testimony about the condition of the property. Coxs son,
Fred Cox, testified that he and his brother cleaned up the
property and removed the trash and that Romero seemed pleased
with their work. Cox testified that a later buyer had the
property tested for contamination and found none. Cox also
testified that Romero never complained that Cox had not vacated
the easements until Cox began proceedings to evict Romero.
Cox testified at trial that during the three years
Romero occupied the property before eviction, he had moved a log
cabin onto the property and operated a landscaping business.
After Romeros eviction, the parties agreed that Romero could
remain on the property for two more months at $700 per month.
On the issue of damages, Cox and an expert witness
testified at trial to the rental value of the property. Cox also
testified that while Romero lived on the property, Cox had to pay
fuel oil and electric bills totaling $1,729.82.
Romero testified to the value of improvements he made
to the trailer and to the value of landscaping work he performed
on the property. Romero also testified that he had been unable
to remove twenty of his apple trees from the property due to
snow. He estimated their total value at between $800 and $1,200.
When he later returned for the trees, they were gone. Although
Coxs attorney was to let Romero know when the snow melted so he
could remove his remaining property, Romero testified that Coxs
attorney never contacted him.
The superior court ruled for Cox and awarded him
damages equivalent to the propertys rental value. The superior
court also concluded that Romeros counterclaims were without
merit and that he was not entitled to any credit for the
improvements he made to the property. The decision did not
mention the apple trees.
Romero raises twenty-two issues on appeal.
III. DISCUSSION
A. Standard of Review
We review the trial courts factual determinations,
including those pertaining to the credibility of witnesses, for
clear error.3 We will conclude that there was clear error only
if after a thorough review of the record, we come to a definite
and firm conviction that a mistake has been made.4 All factual
findings are reviewed in the light most favorable to the
prevailing party below.5
We apply our independent judgment to questions of law.6
When the meaning of a contract is at issue, we review the
superior courts interpretation of the contract terms using our
independent judgment.7
Although we judge a pro se litigants briefing by a less
demanding standard,8 if a pro se litigant raises issues in
cursory fashion, without citing any authority, they are waived.9
B. Romero Has Waived Eight Issues on Appeal.
Romero has failed to adequately brief eight of his
twenty-two appellate issues. Romero mentions seven of these
issues only in the part of his brief titled Issues Presented for
Review, and does not discuss them at all in the remainder of the
brief. He discusses the eighth of these issues in his brief, but
it is not clear what legal argument Romero is making. Even if he
had adequately briefed the issues, they appear to lack merit. We
will briefly address these issues in turn.
Romero first argues that the court erred by dismissing
his original counterclaim. The record reveals that the claim was
dismissed for his failure to pay the filing fee. Moreover, he
was permitted to refile his counterclaim in 2003, so he was not
injured by the dismissal of his original counterclaim.
Second, Romero contends that the superior court erred
by charging him both interest and rent. He apparently thinks he
was charged both rent and interest on the purchase price. But
the court order awarded prejudgment interest on the fair rental
value of the property, not on the purchase price. Awarding
prejudgment interest on the rental award was appropriate here.10
Romeros third argument is that the superior court erred
by finding that he failed to mitigate damages by not closing when
he had the ability to do so. But the superior court never found
that Romero failed to mitigate damages.
Romero next argues that he was entitled to credit for
his improvements to the mobile home. The superior court found
that the improvements had not been completed and that they did
not add value to the mobile home. Romero has not argued that
these findings were clearly erroneous.
Romeros fifth argument is that the superior court erred
by failing to certify the partial summary judgment under Rule
54(b). We have held that [a] partial summary judgment that
decides only some of the issues pertinent to a single claim is
interlocutory and not within the scope of Civil Rule 54(b).11
Here, the partial summary judgment motion only addressed specific
performance, so certification under Rule 54(b) was not required,
and there is no indication the court abused its discretion in
declining to grant the motion.
Romero next asserts that the superior court failed to
recognize genuine issues of material fact. Because a trial was
held on the issue of damages, the superior court did recognize
that there were some disputed issues of material fact. Romero
might be arguing that there were other issues of material fact
that he was not permitted to raise at trial. But because Romero
does not explain what these other issues might be, he has waived
this argument.
Romeros seventh argument is that the superior court
erred when it denied his Rule 60(b) motion for relief from
judgment. Romero has waived this argument because he does not
explain why he is entitled to relief from judgment.
Romeros eighth argument is that the superior court
failed to apply the parol evidence rule and the statute of
frauds. We cannot determine why Romero thinks the statute of
frauds and parol evidence rule were misapplied. He argues that
his agreement with Cox was fully integrated, but does not argue
that the superior court relied upon extrinsic evidence to vary or
alter the terms of the written agreement. The issue is therefore
waived.12
We next address Romeros remaining fourteen issues.
C. The Trial Court Did Not Erroneously Construe the
Earnest Money Agreement as a Lease.
Romero raises various contentions that center around
his argument that the superior court erroneously interpreted the
earnest money agreement as a lease. Thus, he argues that the
court should not have interpreted the agreement as a lease; that
if he was in fact a tenant, the mobile home was not up to the
standards established in the Uniform Residential Landlord and
Tenant Act (URLTA); that if there was a tenancy, the court erred
by not finding that the premises were uninhabitable until he
renovated them; and that because the agreement was not a lease,
he should have been foreclosed upon instead of evicted.
Contrary to Romeros assertions, the superior court
never found that the earnest money agreement was a lease. The
court instead described it as an agreement whereby the owner
(Cox) would sell the property to Romero for $110,000. Romero
might be confused by the fact that Cox was awarded damages that
included an amount equal to the fair rental value of the
premises. Under the doctrine of quantum meruit, when a valid
contract does not exist, a plaintiff is entitled to the
reasonable value of the services rendered to the defendant.13
Although Cox and Romero initially signed a contract for sale, the
contract was no longer valid because Romero and Cox failed to
close within the specified period of time, and because the
contract did not entitle Romero to take possession of the
premises before closing. Cox was therefore entitled to recover
the fair rental value.
Because there was no lease, Romero cannot argue that
the URLTA was violated or that the premises were uninhabitable.
The URLTA does not apply to land sale contracts.14
Romero alternatively argues that if the agreement was
not a lease, an FED action was improper. Romero contends that he
should have instead been foreclosed upon or ejected. He is
incorrect. It is proper to bring an FED action even when the
URLTA does not apply.15 If a person continues to remain on the
property at the expiration of the time limited in the lease or
agreement under which that person holds,16 he may be evicted. Cox
testified that he permitted Romero to move onto the property
because he expected Romero to pay him the balance of the down
payment. When Romero failed to pay the balance of the down
payment within the specified time, Cox was entitled to evict him.
D. The Superior Court Correctly Denied Romeros Motion for
Partial Summary Judgment.
Romero seems to argue that he was entitled to partial
summary judgment on the breach of contract issue because Cox
breached the agreement. Summary judgment is proper if there are
no genuine issues of material fact.17 As Romero argues, parties
may rely on verified pleadings in their summary judgment motions.18
Romeros verified counterclaim asserts that Cox did not comply
with his statutory duties. Romero argues that Cox confessed that
he was in material breach of the contract and cites to Coxs
supplemental affidavit filed May 6, 2002. In that affidavit, Cox
merely admitted that a car remained on the premises, and stated
that he was willing to remove it at any time. These statements
do not establish a material breach of contract entitling Romero
to partial summary judgment.
Cox stated in the same affidavit that he believed that
he and his sons had fulfilled all of his obligations to Romero
under the agreement. Because the parties disputed whether Cox
had fulfilled his duties, there was a genuine issue of material
fact, and it would have been error to grant summary judgment to
Romero.
E. The Superior Court Did Not Err when It Ordered Romero
To Deposit More than $41,000 To Maintain an Action for
Specific Performance.
Romero seems to argue that because Cox allegedly failed
to perform his duties under the agreement, Romero, in order to
obtain specific performance, was not obligated to pay the entire
down payment, interest on the principal, and property taxes. The
order granting Cox partial summary judgment on the specific
performance claim required Romero to deposit $41,455.71 to obtain
specific performance; that amount included the down payment,
interest, and property taxes. Romero asserts that this amount
should have been reduced by costs incurred when Romero complied
with the conditions which should have been undertaken by Cox.
But Romero has never proved that he spent any money to remedy the
alleged defects in the property. He also provides no legal
support for this proposition.
A buyer must be ready, willing and able to perform when
a contract is formed, when a lawsuit is filed, and during the
pendency of the lawsuit.19 We have held that the buyer must
tender all unpaid money, interest, and costs,20 even if the seller
is responsible for the contract delay.21 Our case law has not
created an exception to this rule for buyers who assert that they
are entitled to damages. We decline to do so here, particularly
because Romero has presented no evidence that he spent any money
curing the alleged defects in the property.
F. The Superior Court Did Not Err in Finding that Cox Did
Not Breach the Contract.
Romero asserts that the superior court erred by finding
that Cox did not breach the contract. Romero also argues that he
relied to his detriment on Coxs promise to perform and that Coxs
delay in performing prejudiced Romero.
Cox testified at trial that he had been willing to
conclude the deal, but Romero kept making excuses for why he
could not close. Although Romero testified that he did not close
because Cox refused to remove contaminated soil from the
property, Cox testified that a subsequent purchaser tested the
soil and found no contamination. The superior court found that
when the testimony conflicted, Cox and his witnesses were
credible, and Romero was not. The clear error standard applies
to the courts findings of fact, particularly those based on
witness credibility.22 Given the trial evidence, it was not clear
error to credit Coxs testimony over Romeros.
Because the superior court concluded that the delay was
Romeros fault, Cox did not breach the contract, and Romero has
failed to prove detrimental reliance.
G. The Superior Court Did Not Err in Failing To Find that
the Title Was Unmarketable.
For three of his appellate points, Romero gives two
reasons why he believes that title was unmarketable. First, he
argues that sewage and contaminated soil on the property made
title unmarketable. Second, he argues that title was
unmarketable because the mobile home and garage encroached on
public easements.
We do not need to reach the question whether title was
marketable; even if it was not, Romero is not entitled to damages
because he was unable to perform his return promise. Romero
admitted in his April 26, 2002 affidavit that he was unable to
pay the $41,000 needed to close the deal. Because Romero was
unable to pay the purchase price at the time it was demanded, he
is not entitled to damages. According to the Restatement
(Second) of Contracts 244, even a party in total breach will not
be required to pay damages if it appears after the breach that
there would have been a total failure by the injured party to
perform his return promise.23
H. The Superior Court Did Not Err in Failing To Find that
Cox Committed Fraud or Applied Duress.
Romero argues that fraud is a possible motive by Cox
and requests a trial on his claim that Cox committed fraud.
Romero was permitted at trial to argue that Cox committed fraud,
and the superior court found that there was no credible evidence
of fraud done by Cox. The court also found that there was no
violation of good faith and fair dealing by Mr. Cox. Romero
provides no record citations to support his claim that Cox
committed fraud or applied duress. We therefore have no basis
for concluding that the superior court erred in finding that Coxs
conduct was not fraudulent or otherwise wrongful.
I. It Was Error Not To Determine Whether Cox Was
Responsible for Nursery Stock that Romero Left on His
Property.
Romero argues that the superior court erred when it
failed to find that Cox was a bailee of Romeros nursery stock,
and was therefore liable for its disappearance. Romero testified
at trial that he was prevented from removing twenty apple trees
from Coxs land. According to the May 23, 2002 court order, Coxs
attorney was to notify Romero when the snow melted so that Romero
could remove any of his property that remained on Coxs land.24
Romero testified that Coxs attorney never notified him that the
snow had melted, and that when he later went to view the
property, the trees were gone.
This issue is not well briefed, but Romero seems to
believe that Cox is responsible for the loss of the trees, and
that he is entitled to their fair value. Romero testified that
the trees were worth between $800 and $1,200. Cox is aware of
the argument, as he states in his brief, that Romero is
requesting reimbursement for the value of his nursery stock. Cox
asks us to rely on the trial courts findings. But a careful
review of the trial courts findings reveals that the court did
not address the apple trees. Although all conflicting testimony
was resolved in Coxs favor, Cox did not testify about whether
Romero was permitted to remove the apple trees. In fact, Coxs
only testimony about the apple trees was that they were still on
the property in July 2001. Romeros claim should have been
decided following trial. We therefore remand for a determination
whether Cox is liable for not returning the apple trees.
IV. CONCLUSION
We REMAND for a determination whether Cox was liable
for not returning the apple trees. The superior court may base
its decision on this claim on the record as it stands, or it may
choose to allow the parties to submit additional evidence. We
otherwise AFFIRM all disputed rulings by the superior court.
_______________________________
1 Romero filed the counterclaim in the state district
court, which dismissed the counterclaim because the court lacked
jurisdiction and Romero failed to pay the filing fee. Romero was
later permitted to file in the superior court a counterclaim
asserting the same claims and a more specific prayer for damages.
2 Romero has consistently argued that he should have been
required to pay only $10,000 to close the deal.
3 Soules v. Ramstack, 95 P.3d 933, 93637 (Alaska 2004)
(footnotes omitted).
4 Id. at 936.
5 N. Pac. Processors, Inc. v. City & Borough of Yakutat,
113 P.3d 575, 579 (Alaska 2005) (footnote omitted).
6 N.W. Cruiseship Assn of Alaska, Inc. v. State, Office
of Lieutenant Governor, Div. of Elections, 145 P.3d 573, 576
(Alaska 2006) (citing Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979)).
7 N. Pac. Processors, Inc., 113 P.3d at 579.
8 Peterson v. Ek, 93 P.3d 458, 464 n.9 (Alaska 2004).
9 Lee v. State, 141 P.3d 342, 352 n.38 (Alaska 2006)
(citing Peterson, 93 P.3d at 464 n.9).
10 AS 09.30.070(a).
11 Zeilinger v. Standard Alaska Petroleum Co., 769 P.2d
436, 436 (Alaska 1989).
12 Romero also asserts that Cox is estopped from claiming
that Romero will not perform under the terms of the sale-purchase
agreement. Because Romero admitted in an affidavit that he could
not pay $41,000 to close the deal, Cox is not estopped from
arguing that Romero was unable to perform.
13 Cf. Krossa v. All Alaskan Seafoods, Inc., 37 P.3d 411,
419 (Alaska 2001) (holding that plaintiff in employment law case
may recover in quantum meruit for services rendered).
14 AS 34.03.330(b)(2).
15 AS 09.45.090(b) states in part:
(b) For property to which the
provisions of AS 34.03 (Uniform Residential
Landlord and Tenant Act) do not apply,
unlawful holding by force includes each of
the following:
. . . .
(2) when, following service of a
written notice to quit,
. . . .
(F) a person in possession continues in
possession of the premises
(i) at the expiration of the time
limited in the lease or agreement under which
that person holds . . . .
Although Romero and Coxs written agreement did not
entitle Romero to take possession of the property, the parties
orally agreed that he could move onto the premises before the
sale closed.
16 AS 09.45.090(b)(2)(F)(i) (emphasis added).
17 Bennett v. Weimar, 975 P.2d 691, 699 (Alaska 1999)
(noting that parties may rely upon verified pleadings when
opposing summary judgment).
18 Id. at 695.
19 Foster v. Hanni, 841 P.2d 164, 172 (Alaska 1992)
(holding that superior court must determine whether option owner
was ready, willing and able to perform both when contract was
formed and when suit was filed and prosecuted).
20 See, e.g., Lewis v. Lockhart, 379 P.2d 618, 624
(Alaska 1963) (holding that purchasers who were entitled to
specific performance had to pay interest on the purchase price,
taxes, and other costs).
21 Dillingham Commercial Co. v. Spears, 641 P.2d 1, 10
(Alaska 1982) (holding that vendor responsible for contract delay
is entitled to purchase price and interest).
22 Soules, 95 P.3d at 93637 ([T]he trial courts findings
regarding the credibility of the witnesses will be reversed only
if clearly erroneous.) (citation omitted).
23 Restatement (Second) of Contracts 244 (1981).
24 The writ of assistance that accompanied the order
states [t]he Plaintiff shall be responsible for the return,
storage or disposal of any personal property of the Defendant.
The order contains slightly self-contradictory language,
permitting Cox to dispose of any personal property remaining on
the premises, but containing an exception for any items . . .
buried by snow.
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