LONG V. ALLEN, 1995-NMCA-119, 120 N.M.
763, 906 P.2d 754 (Ct. App. 1995)
MARGARET "DARBY" LONG,
Plaintiff-Appellee,
vs.
PETER ALLEN, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1995-NMCA-119, 120 N.M. 763, 906 P.2d 754
September 15, 1995, FILED
APPEAL FROM THE DISTRICT COURT OF SANTA
FE COUNTY. STEVE HERRERA, District Judge.
Certiorari not Applied for. Released
for Publication November 27, 1995. Opinion Denying Motion for Rehearing October
19, 1995.
LINDA G. HEMPHILL, Santa Fe, New Mexico,
Attorney for Plaintiff-Appellee.
PETER B. SHOENFELD, PETER B. SHOENFELD,
P.A., Santa Fe, New Mexico, Attorney for Defendant-Appellant.
MICHAEL D. BUSTAMANTE, Judge. THOMAS A.
DONNELLY, Judge, HARRIS L HARTZ, Judge, concur.
AUTHOR: MICHAEL D. BUSTAMANTE
{1} Defendant Allen
(hereafter Seller) appeals from an order of summary judgment in favor of
Plaintiff Long (hereafter Buyer) in an action for breach of a residential
purchase agreement. Determining there were no genuine issues of material fact,
the trial court found the purchase agreement enforceable and granted Buyer's
motion to compel arbitration pursuant to the purchase agreement. Judgment was
entered against Seller and his former wife, co-owners of the property at issue.
Only Seller has appealed. We affirm.
{2} Buyer made several offers
to Seller and his former wife (collectively, Owners) to purchase their
residence. Ultimately, Buyer made a written offer dated March 1, 1994, that was
set to expire on March 3, 1994, at 6:00 p.m. unless the Owners delivered a
written acceptance to Buyer before that time. The Owners signed the offer (the
Agreement) on March 4, 1994, and returned it to Buyer on that date via her real
estate agent. Both parties acknowledge that the Owners' execution of the
Agreement on March 4 constituted a counteroffer. They dispute, however, whether
uncontroverted facts establish that Buyer's performance constituted an
"acceptance" that bound the Owners to the terms of the counteroffer.
{3} The ultimate question of
whether the Owners' counteroffer became a binding promise and resulted in a
contract requires us to consider whether the evidentiary facts conclusively
establish that Buyer accepted the counteroffer.
See Orcutt v. S & L
Paint Contractors, Ltd., 109 N.M. 796, 798,
791 P.2d 71, 73 (Ct. App. 1990)
(offeree's acceptance must be clear, positive, and unambiguous). Acceptance of
an offer is a manifestation of assent to the terms of the offer, made by the
offeree, in a manner allowed, invited, or required by the offer.
Id.
(citing Restatement (Second) of Contracts § 50 (1981)).
{4} Seller initially contends
that the specific terms of the Owners' counteroffer required a written
acceptance. Seller refers us to paragraph 4.11 of the Agreement which states
that "all notices and communications required or permitted under this
Agreement shall be in
writing." Paragraph 4.11 is a general
provision which describes the mechanics for giving notice "required or
permitted under this Agreement," including addresses and facsimile
telephone numbers. The paragraph also defines the effective time of notices
depending on the method of delivery. The paragraph does not on its face address
the manner of acceptance or time within which acceptance of the counteroffer is
required. We believe that the act of acceptance of the counteroffer is not a
communication
under the document as provided in paragraph 4.11. Rather,
acceptance is an act
creating an agreement. The Agreement does not
otherwise address in any way Buyer's mode of response and, in our view, simply
does not specify that the counteroffer can
{*765}
only be accepted in writing. The counteroffer thus invited acceptance by
any manner reasonable under the circumstances, such as by promise or
performance.
See Restatement,
supra, § 30(2) (form of acceptance
invited) and § 32 (in case of doubt, offeree may accept by promise or
performance).
{5} The fact that the
transaction involved the sale of land and thus was within the statute of frauds
does not persuade us by itself that a written acceptance was required. The
Agreement, already signed by Buyer on March 1, identified each party and the
subject land and also specified the pertinent terms and conditions of the
transaction.
See Pitek v. McGuire, 51 N.M. 364, 371,
184 P.2d 647,
651-52 (1947). Seller suggests that Buyer's actions were not the type of
partial performance which would take the transaction out of the statute of
frauds. We disagree. The Agreement satisfied the requirements set forth in
Pitek,
and Seller, the party to be charged in this case, signed the document. Nothing
more is required to satisfy the statute of frauds.
See id.; Balboa Constr.
Co. v. Golden, 97 N.M. 299, 303,
639 P.2d 586, 590 (Ct. App. 1981); Restatement,
supra, § 131.
{6} We turn next to the facts
bearing on the issue of Buyer's acceptance of the counteroffer by her
performance. To the extent the pertinent facts are not in dispute and all that
remains is the legal effect of those facts, summary judgment is appropriate.
See
Westgate Families v. County Clerk, 100 N.M. 146, 148,
667 P.2d 453, 455
(1983). The following facts are undisputed. Paragraphs 1.4(A) and 1.9 of the
Agreement required Buyer to deliver a $ 5,000 earnest-money deposit to a named
title company as soon as practical. The check was received by the title company
on March 8, 1994. Buyer arranged for professional inspections of the property
as urged in paragraph 2.5 of the Agreement. Pursuant to paragraph 2.1 of the
Agreement, Buyer sought and obtained a financing commitment for her purchase of
the property. Paragraph 1.10 specified that the closing take place within ten
business days of April 8, 1994, and that the parties arrange for delivery and
execution of the necessary documents and funds. Buyer appeared at the title
company office on April 14, 1994, and signed all the documents necessary to
close the transaction. In our view, these facts establish conclusively that
Buyer accepted the Owners' counteroffer by performance of what the counteroffer
requested.
See Restatement,
supra, § 62 (where offer invites
offeree to choose between acceptance by promise and acceptance by performance,
beginning of invited performance is an acceptance by performance).
{7} We recognize that
Seller's affidavit states he never received any communication from Buyer
specifically claiming or purporting to accept the counteroffer. However, the
fact that Buyer may not have communicated her verbal or written promissory
acceptance explicitly is not fatal to Buyer's position. The Restatement makes
it clear that notification to the offeror of acceptance is not necessary unless
the offer requests notice or the offeree has reason to know the offeror has no
adequate means of learning of the performance with reasonable promptness and
certainty. Restatement,
supra, § 54. We have already determined the
offer did not require any particular form of acceptance. Further, Seller does
not assert and has made no showing that he had no means of learning about
Buyer's acceptance. Most tellingly, however, it cannot be disputed that Seller
had actual notice of Buyer's acceptance.
{8} The following facts are
undisputed. On March 9, 1994, at Seller's request, Buyer's real estate agent
faxed a copy of the Agreement to Seller's attorney. The cover sheet for the fax
included the statement, "We are moving very fast to get everything
done." Seller directed Buyer's agent to deliver Buyer's
earnest-money-deposit check to the title company and Seller knew the check was
delivered. Seller was kept informed regarding property inspections and Buyer's
efforts to secure financing. Seller was aware that Buyer's real estate agent
arranged for a survey of the property at the Owners' expense. Seller arranged
for the April 14, 1994, closing appointment at the title company. Buyer was not
aware of any obstacle to closing the purchase until she appeared at the title
company to sign closing documents. These facts conclusively establish that
Seller
{*766} was aware in the normal
course of business of Buyer's acceptance by performance.
{9} We dispose summarily of
several of Seller's contentions. First, because we hold that the evidence
establishes as a matter of law that Buyer accepted the Owners' counteroffer by
her performance, it is unnecessary to address the patties' contentions
regarding whether the doctrines of ratification, waiver, or estoppel precluded
Seller from asserting that the March 4 acceptance of Buyer's offer was
untimely.
{10} Second, Seller suggests
that the trial court's ruling was in error because Buyer never made a proper
motion for summary judgment. We reject this claim for the following reasons:
Buyer's reply affidavit opposed Seller's motion for summary judgment and sought
an award of summary judgment in her favor. Buyer's memorandum brief filed on
August 29, 1994, was in part denominated as being "in support of her
cross-motion for summary judgment," and the pleading contained a statement
of the reasons in support of the motion and cited the authorities upon which she
relied.
See SCRA 1986, 1-056(D)(2) (Repl. 1992) (procedure for moving
for summary judgment). Seller has not pointed out how he presented to the trial
court any question of defects in Buyer's pleadings.
Cf. SCRA 1986,
12-213(A)(3) (Cum. Supp. 1995) (argument in brief in chief shall show how issue
was preserved). We will not consider this claim for the first time on appeal.
See
SCRA 1986, 12-216(A) (Cum. Supp. 1995) (to preserve question for review it must
appear that ruling was invoked below).
{11} Third, Seller argues
that the statement in Buyer's affidavit that she "entered into a valid
contract with Defendants" on March 4 is a conclusion of law beyond Buyer's
competence. We address this contention only to note that the trial court was
not required to rely on Buyer's statement as proof of the existence of a
binding contract.
{12} Finally, the Seller
contends that the affidavits from the building inspector and escrow agent are
not appropriately part of the record since they were not filed in the district
court and because conformed copies were not provided to Seller. We reject these
contentions. The affidavits are part of the record proper because there were
filed with the document entitled "Buyer Long's Reply to Seller Allen's
Reply." We are aware of no authority to support the proposition that Buyer
was required to provide him with conformed copies of the affidavits.
See In
re Adoption of Doe, 100 N.M. 764, 765,
676 P.2d 1329, 1330 (1984)
(arguments unsupported by citations to authority will not be reviewed). Seller
has also not demonstrated that he asked the trial court to strike the
affidavits because of the form of the copies of the affidavits he received.
Cf.
SCRA 12-213(A)(3) and SCRA 12-216(A);
Chavez v. Ronquillo, 94 N.M. 442,
445,
612 P.2d 234, 237 (Ct. App. 1980) (objecting party must move to strike an
affidavit that violates SCRA 1-056).
{13} We hold as a matter of
law that Buyer accepted the counteroffer by performance, thus making the
Owners' promises binding.
See SCRA 1-056(C);
Worley v. United States
Borax & Chem. Corp., 78 N.M. 112, 114,
428 P.2d 651, 653 (1967).
Accordingly, we affirm the trial court's order of summary judgment for Buyer.
MICHAEL D. BUSTAMANTE, Judge
THOMAS A. DONNELLY, Judge
OPINION DENYING MOTION FOR REHEARING
{15} This matter came before
the original panel on the motion for rehearing of Defendant Allen (Seller).
Seller asserts that paragraph 1.7 of the Agreement required Buyer to accept
Seller's counteroffer in writing, and that any other form of acceptance was
thus ineffective. Paragraph 1.7 provided in pertinent part:
This offer shall expire unless written acceptance is
delivered to BUYER on or before . . . 6:00 PM Mountain Time, Thursday, March 3,
1994. It is acknowledged that this offer to purchase may be withdrawn at any
time prior to BUYER'S written receipt of acceptance by SELLER and {*767} that SELLER may accept other offers
prior to acceptance of this offer." Emphasis added.
We are not persuaded. On its face, paragraph 1.7 does not
require Buyer to accept Seller's counteroffer in writing. Rather, it addresses
how Seller must communicate acceptance. Thus, the specific terms of the
Agreement do not require written acceptance of the counteroffer by Buyer.
{16} The remaining issue is
whether paragraph 1.7 requires as a general matter that any acceptance in this
transaction be in writing. We do not believe it does. Seller signed and
returned the Agreement to Buyer late but without modification. Thus, Seller's
counteroffer was for sale on the same terms previously offered by Buyer. The
parties retained their identities as Buyer and Seller under the Agreement.
Given the sequence of events, paragraph 1.7 became essentially surplusage to
the counteroffer. It did not operate to provide an over-arching limit on
Buyer's mode of acceptance any more than paragraph 4.11.
{17} Seller's citation to
Polhamus
v. Roberts, 50 N.M. 236,
175 P.2d 196 (1946) is inapposite. The factual
circumstances of
Polhamus are so different from the case at hand that
the analogy Seller attempts to draw is not accurate.
{18} The motion for rehearing
is denied.
MICHAEL D. BUSTAMANTE, Judge
THOMAS A. DONNELLY, Judge