Opinion
No. 37587-7-II.
February 3, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 00-2-09367-1, John A. McCarthy, J., and Donald H. Thompson, J. Pro Tem., entered March 27, 2008.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Van Deren, C.J., concurred in by Houghton and Bridgewater, JJ.
This case presents the issue of whether a trial court's order to partition real property by sale, followed by its order requiring a reluctant tenant in common to sign and cooperate with the ordered sale using a real estate purchase and sale agreement (REPSA), binds the parties or whether the subsequently executed REPSA becomes the only enforceable means of partitioning the property and transferring ownership.
Susan Beck appeals the trial court's orders (1) granting summary judgment to Ryan and Julie Thomas and Paul Rutledge for specific performance of a purchase and sale agreement executed according to the trial court's earlier ruling and (2) applying a 12 percent interest rate to certain amounts Beck owed to Rutledge. We affirm the trial court's order requiring the sale to the Thomases and its order that 12 per cent per annum is the appropriate interest on amounts not covered by Beck and Rutledge's earlier agreement. We reverse and remand issues of attorney fees to the trial court for further proceedings.
Beck also appeals the trial court's approval of the original real estate listing agreement and its requirement that she sell the house. We earlier affirmed the trial court's rulings on these matters. Rutledge v. Beck, No. 32504-7-II (Wash.Ct.App. Sept. 9, 2005). Beck also lists the trial court's order allowing the Thomases to intervene in her notice of appeal. But Beck does not argue this issue in her opening brief, her reply brief, or her supplemental brief. "[T]his court will not review issues for which inadequate argument has been briefed or only passing treatment has been made." State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004).
FACTS
Susan Beck and Paul Rutledge, an unmarried couple living in California, purchased a home in Gig Harbor, Washington, in June 1999 as tenants in common. They separated two weeks before their scheduled move to Washington and Rutledge decided to stay in California. Beck, her children, and her mother moved to Washington and began residing in the Gig Harbor home. When Beck failed to pay the mortgage, Rutledge began making the monthly mortgage payments. Up until the trial court's order at issue in this appeal, Beck and her family "had exclusive possession of the home and ha[ve] physically maintained the subject property ever since." Br. of Appellant at 4.
We earlier determined that Rutledge and Beck were tenants in common. Rutledge v. Beck, No. 32504-7-II (Wash.Ct.App. Sept. 9, 2005). Tenants in common have a right under the partition statute "to partition their property, either in kind or by sale." Friend v. Friend, 92 Wn. App. 799, 803, 964 P.2d 1219 (1998) (emphasis omitted). RCW 7.52.010 states:
When several persons hold and are in possession of real property as tenants in common . . . an action may be maintained by one or more of such persons, for a partition thereof, according to the respective rights of the persons interested therein, and for sale of such property . . . if it appear[s] that a partition cannot be made without great prejudice to the owners.
Rutledge filed suit against Beck on July 7, 2000, "to establish the relative interests of the parties" in the Gig Harbor property. Br. of Appellant at 4. In May 2001, Beck and Rutledge entered into an agreed judgment. The agreement stated that "Paul Rutledge shall have judgment over and against Susan Beck for the sum of Fifty Thousand ($50,000.00) Dollars." It further stated that "[t]his amount shall be paid at the rate of One Thousand ($1,000.00) Dollars per month. . . . The $1,000.00 per month shall be in addition to the full house payment hereafter described." Clerk's Papers (CP) at 2. Once Beck paid Rutledge the full amount, the agreed judgment stipulated that "[Rutledge] will convey his entire interest in the subject property to Susan Beck conditioned on her obtaining either a new mortgage in her name only or a novation of the existing mortgage." CP at 3.
Pierce County Superior Court Judge Bryan Chushcoff presided over the agreed judgment. Judge Chushcoff is now Beck's son-in-law. He also represented J.B. Properties, Inc. at the trial court and in part of this appeal. Here, J.B. Properties moved to intervene and also moved for an emergency stay. We denied both motions.
Following the agreed judgment in 2001, Beck and Rutledge refinanced the mortgage together in April 2003. They subordinated the 2001 agreed judgment to the new deed of trust to accommodate the refinance. The new deed of trust listed Rutledge and Beck as grantors "IN UNDIVIDED INT[E]RESTS AS THEIR RESPECTIVE SEPARATE ESTATES." CP at 269. The record does not reveal what agreement they had for payment of the new mortgage.
Beck did not comply with the 2001 agreed judgment and Rutledge brought an action in 2004 to force sale of the property. The trial court denied Rutledge's motion for summary judgment but granted him "leave to renew this motion to resolve issues concerning the homestead exemption." CP at 13. Rutledge filed a second motion for summary judgment that same day and, on September 17, 2004, the trial court entered an order authorizing sale of the property. The trial court ordered that the parties "list the property for sale with a licensed realtor at a fair market price . . . on or before October 1, 2004." CP at 8.
Beck moved for reconsideration or a stay of the order to sell the property. The trial court denied the motion for reconsideration on October 22, 2004, because "[Rutledge] is in a situation where he is having to incur monthly charges to maintain a mortgage on the property without the benefit of the property, in order to prevent it from going into foreclosure." The superior court granted Beck's motion to stay the order to sell the property "upon a super[s]ed[ea]s bond of $100,000 being paid in the proper form." CP at 82.
Rutledge subsequently employed Sterling Real Estate Brokers. They determined that the fair market value was $255,000 and Rutledge signed a listing agreement and seller's disclosure documents. The trial court ordered Beck to sign the listing agreement on October 29, 2004, but granted her time to submit an alternate listing agent and valuation of the property. When Beck did not do so, the trial court set $260,000 as the asking price on November 5, 2004, and required Beck to sign the listing agreement with Sterling Real Estate.
On November 8, 2004, Beck appealed the trial court's orders (1) authorizing sale of the property, (2) denying Beck's motion for reconsideration, (3) compelling Beck's signature on the listing agreement, and (4) setting the listing price and the brokerage firm. While the trial court's original orders were on appeal, on November 17, 2004, the trial court signed an order requiring Beck to "provide full and complete access to the property" and stating that "[Beck] was not to interfere with the efforts by the listing agent to sell the property." CP at 476. Sterling Real Estate obtained a buyer for the property and, in January 2005, Ryan and Julie Thomas entered into a REPSA with Rutledge. On January 21, 2005, the trial court ordered Beck to sign the REPSA. The REPSA listed several closing dates for the sale, i.e., January 31, February 14, and February 26, 2005.
In February 2005, J.B. Properties posted $50,000 as supersedeas on Beck's behalf. Beck filed a deed of trust on the home, without Rutledge's approval, in order to obtain these funds. Beck posted $80,000 as additional supersedeas sometime before March 27, 2008.
The closing date listed on the REPSA itself seems to have been altered twice. It appears that the original closing date was January 31, 2005, but this was crossed out and replaced with February 26, 2005. February 26 was also crossed out and replaced with February 14, 2005. Beck states that the original closing date was subject to a ten-day grace period, placing the final closing date at February 24, 2005. It is unclear which version of the REPSA Beck signed on January 21, 2005.
Rutledge and the Thomases continued to change the closing date of the REPSA on several more occasions throughout the ensuing litigation. It appears that they first signed an addendum to the REPSA sometime before November 8, 2005, changing the closing date to October 31, 2005. Thereafter, the record shows that they signed addenda on (1) November 8, 2005, extending the closing date to November 30, 2005; (2) September 18, 2006, extending the closing date to November 1, 2006; (3) December 22, 2006; extending the closing date to March 1, 2007; and (4) September 4, 2007, extending the closing date to October 30, 2007. Beck did not sign any of the addenda. She maintained throughout the litigation, and still maintains on appeal, that she never agreed to the sale to the Thomases.
We affirmed the trial court's order compelling sale of the property on September 9, 2005. Rutledge v. Beck, No. 32504-7-II (Wash.Ct.App. Sept. 9, 2005). Beck appealed to the Supreme Court and in May 2006 it denied review, stating, "[T]he trial court will soon regain jurisdiction, and at that point will be able to afford Ms. Beck any relief to which it might find her entitled." CP at 160.
On July 27, 2006, Beck filed a bankruptcy petition, seeking Chapter 13 relief from the trial court's orders. Beck submitted a bankruptcy plan that included a proposal to refinance the Gig Harbor property to pay Rutledge's claim. Rutledge objected to confirmation of Beck's proposed plan. The Thomases submitted a claim in the bankruptcy proceeding, asserting a right to specific performance of their REPSA "or $100,000 + if breached." CP at 558. The bankruptcy court denied Beck's plan to refinance on March 7, 2007. On May 10, 2007, the bankruptcy court entered a stipulation and order for relief from stay, "which returned the pending matters to the jurisdiction of the Superior Court." CP at 539. It then filed an order on July 10, 2007, authorizing Beck "to refinance her personal residence to pay the secured claim of Paul Rutledge" and ordered that, "[s]hould the Debtor be unable to refinance successfully with the Wagner Lending Group Inc., Debtor is authorized to refinance with any other lender without further order of this Court as long as the terms are substantially consistent with the Good Faith Estimate previously submitted by the Wagner Lending Group, Inc." CP at 325, 326.
Beck's bankruptcy petition is not included in the record on appeal.
Rutledge apparently objected to the plan to refinance because "Ms. Beck did not attempt to deal with the contingent liabilities noted against her by the Thomases and the realtor and Mr. Rutledge, as tenant-in-common or co-debtor." CP at 538-39.
The bankruptcy court added, "This Court makes no decision as to the validity of third party claims as it relates to the Rutledge/Beck/Thomas transactions. At this time, this Court declines jurisdiction as to the validity of third party claims as to the Rutledge/Beck/Thomas transactions." CP at 326.
Beck filed a motion in the trial court on May 24, 2007, asking it to compel Rutledge to specify the amount she owed so she could pay Rutledge and retain the property. She stated that John Wagner, of the Wagner Lending Group, was willing to refinance for her and asked the trial court to grant her at least ten days to do so.
Rutledge asked the trial court to require completion of the sale to the Thomases and appoint an attorney-in-fact to sign the sales documents for Beck. He also asked that J.B. Properties' deed of trust be set aside. Finally, he argued that "failing to close the sale further exposes [Rutledge] to lawsuits by [the Thomases and] the Realtors." Report of Proceedings at (RP) (June 6, 2007) at 7. He argued that the trial court could not change the relief at this point because "[Rutledge] has relied on it. The buyers have relied on it. The Realtors have relied on it, and the problem is of [Beck's] own making." He further stated, "The Realtors have earned their commission because they brought a qualified buyer to the table who signed up, signed the agreement [Beck] signed." RP (June 6, 2007) at 27-28.
Beck argued that the REPSA with the Thomases had "long since expired." RP (June 6, 2007) at 39. Without ruling on the issue of whether the REPSA had expired according to its own terms or making a finding that Beck repudiated the agreement or failed to follow the trial court's orders, the trial court granted Beck 30 days "to refinance and pay off the judgment, . . . plus [the] anticipated judgment." RP (June 29, 2007) at 21. The court stated, "I think for the sake of her moving forward with refinance efforts, I think you should assume that [the payoff amount is] going to be somewhere in the area of $130,000." RP (June 29, 2007) at 21. It continued, "[Beck] is going to have to either refinance and pay off judgments or the sale will proceed." RP (June 29, 2007) at 22. The trial court set July 27, 2007, as Beck's refinance deadline.
On July 27, the Thomases successfully moved to intervene. Other than establishing a 12 per cent interest rate on all mortgage payments Rutledge made after their 2001 agreed judgment, the trial court deferred ruling on all other motions to give the Thomases time to respond. The transcript indicated that Beck's refinance would not have been final until either July 30 or July 31.
On July 31, the Thomases filed a third party complaint for specific performance and/or damages. Beck asserted three affirmative defenses to their claims: (1) the Thomases knew when they signed the REPSA that the Gig Harbor property was subject to litigation and that they would not obtain the property if "[the Thomases] could not obtain the court's approval and that of Susan Beck"; (2) the REPSA "expired and terminated by its terms on February 24, 2005 when the [Thomases] obtained neither the signature of the court nor of Susan Beck on an extension of the time for concluding the agreement"; and (3) "[t]he claim of [the Thomases] is subject to equitable considerations extant in the claims between Beck and [] Rutledge." CP at 348-49.
On September 18, 2007, the Thomases moved for partial summary judgment, asking for specific performance of the REPSA contract or, in the alternative, damages. The Thomases argued that "[t]he REPSA contained all of the material terms of the transaction" and that "Ms. Beck signed every page." They alleged that "Beck continues to resist the sale and has refused to go forward with the closing as agreed." They contended that Beck "repudiated the REPSA well before the sale was scheduled to initially close" and that "Rutledge and the Thomases have continued to execute addenda extending the closing date while attempting to obtain resolution from the court." CP at 355-56. To support their claims that Beck repudiated the REPSA and that she refused to close the sale on February 24, they pointed to Beck's appeals and bankruptcy filing and, further, to her refusal to allow an appraiser access to the property at some point.
In March, 2008, Rutledge told the trial court that if it did not order specific performance, "then we have a breach of damages. We have a contract price of $260,000, and the value of the property is probably . . . $380,00[0] . . . so the difference is $120,000 right there, it's easily calculated." RP (March 27, 2008) at 32-33. The Thomases argued that Beck prevented appraisers from entering the property, making an accurate appraisal impossible. Finally, the Thomases stated that "whatever th[e] appreciation is would be what [we] are entitled to as damages as a result of this breach." RP (March 27, 2007) at 34.
Rutledge's counsel, rather than the Thomases', argued that Beck had delayed the process by appealing and filing for bankruptcy. However, the Thomases' counsel expressly adopted Rutledge's comments on the subject.
Rutledge also asked the trial court to compel the sale with the Thomases. Rutledge argued that "[t]he [trial court's] orders of January 2005 remain in [e]ffect, have never changed," and that he was "now exposed to [the Thomases'] claims for specific performance plus the claims of the realtors who have a perfected claim for their commission and attorney's fees." RP (March 27, 2008) at 9-10. He also alleged intransigence by Beck. Rutledge asked that the court appoint an attorney to sign the sale documents for Beck, strike the deed of trust to J.B. Properties, and award him attorney fees.
Beck also submitted a cross motion for summary judgment against the Thomases.
Judge John McCarthy recused himself from the case in October 2007 and retired Pierce County Superior Court Judge Donald Thompson served as judge pro tempore at the March 27, 2008 hearing.
Beck argued that she had satisfied the agreed judgment underlying Rutledge's money claims to force the sale of the property by paying $130,000 for his benefit. She argued that the trial court's ruling, giving her 30 days to refinance and pay Rutledge in June 2007, showed "a change of equities" and that, because Rutledge's claim was moot, the only issue before the court was the "alleged contract claims of Thomas." RP (March 27, 2008) at 20, 23.
Following much more argument, including Beck's argument that there was no enforceable contract, the trial court stated what it viewed as its only alternatives, "[T]he Court is faced with two alternatives: Either allow Ms. Beck to retain the property and the $130,000 would be paid over, plus any additional amount that may be determined due . . . or enforcement of the contract." RP (March 27, 2008) at 49. It then turned to a consideration of the equities:
And what are the equities? My overall view is that this matter is one that is far too long in being brought to a conclusion and that Ms. Beck has had numerous opportunities to get the matter finalized and resolved . . . [a]nd then we have the threat that if I don't allow specific performance that there is going to be a sizeable action for damages. . . . [T]aking all those into consideration, those arguments, it's my conclusion that the specific performance should be granted and the matter brought to a conclusion.
RP (March 27, 2008) at 49-50. Although it discussed the equities of the matter, its order compelling the sale required that it be "pursuant to this Court's order of January 21, 2005." CP at 495. It also granted specific performance of the REPSA with the sale to the Thomases. Beck appeals the trial court's orders.
The January 21 order required Beck to sign the sale agreement with the Thomases and cooperate to accomplish the sale.
Beck asked us to stay the sale of the Gig Harbor property and to accelerate review, which we granted, subject to a supersedeas bond or cash in the amount of $120,000. Beck did not post the supersedeas bond or cash. Beck again moved for an emergency stay on June 27, 2008, after the trial court vacated the two deeds of trust to J.B. Properties without allowing it to intervene. We denied Beck's motion for stay on June 27, 2008, because the conditions for a stay had not been satisfied.
The sale to the Thomases closed on July 3, 2008. We denied Rutledge's motion to dismiss Beck's appeal for mootness on July 11, 2008. On September 12, 2008, the trial court granted the Thomases a writ of restitution and a writ of ejectment, granting possession of the real property to the Thomases and ejecting Beck and her family from the home. The order required that no eviction would be scheduled before September 28, 2008. The trial court denied the Thomases' and Rutledge's motions for reasonable attorney fees. The trial court also allowed Bryan Chushcoff to intervene and ordered that, "of the funds now being held in trust . . . the balance due to [Rutledge] for all sums . . . is $80,397.49 . . .; all other sums being held . . . shall be paid to Bryan Chushcoff." Suppl. Br. of Resp'ts Thomas, Ex. A at 2.
ANALYSIS
Beck appeals the trial court's decision (1) to compel the sale of the property to the Thomases and (2) that the amounts she owed Rutledge should bear interest at 12 percent per annum. Rutledge and the Thomases cross appeal the trial court's denial of their claims for attorney fees.
Because we have already considered Beck's first appeal regarding the original listing agreement, as well as the trial court's order requiring Beck to sign the original sales agreement with the Thomases, we do not reconsider these issues. In addition, we held that the partition by commercial sale was proper. Rutledge v. Beck, No. 32504-7-II (Wash.Ct.App. Sept. 9, 2005). Beck also argues that the REPSA is unenforceable because it lacked mutuality of assent when created. Because we decide the issue based on the trial court's order to partition the property, we do not address this issue. Thus, we consider only those issues not considered during the first appeal.
I. March 2008 Order of Sale
Beck argues that the trial court erred in ordering sale of the property to the Thomases and then granting partial summary judgment to the Thomases, because the Thomases knew that the REPSA was in litigation between Rutledge and Beck and because the REPSA expired by its terms.
Rather than considering the trial court's denial of Beck's cross motion for summary judgment, we focus on the trial court's order granting summary judgment to Rutledge and the Thomases.
A. Standard of Review
When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). After the moving party has submitted adequate affidavits, the burden shifts to the nonmoving party to set forth specific facts that sufficiently rebutt the moving party's contentions and disclosing the existence of a material issue of fact. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 12-13, 721 P.2d 1 (1986). The court must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. The court should grant summary judgment "only if, from all the evidence, reasonable persons could reach but one conclusion." Wilson, 98 Wn.2d at 437. We review issues of law de novo. State v. McCormack, 117 Wn.2d 141, 143, 812 P.2d 483 (1991). We may affirm a trial court's order on any legal ground. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
B. Order To Sell
Beck asserts that the REPSA expired according to its terms when Rutledge and the Thomases failed to obtain Beck's signature or a court order allowing them to extend the closing date for three-and-a-half years. Rutledge and the Thomases rely on the trial court's January 21, 2005, order requiring Beck to sign the REPSA, as well as its earlier orders requiring her to cooperate in the sale and partition of the property. They assert that Beck repudiated the REPSA before the closing date, making closing according to the REPSA impossible in February 2005, and, therefore, subject to closing at any time.
Enforceable contracts for sale of real property are required to be in writing, specifying all material terms. See RCW 64.04.010, .020. Material terms include the property description, the price, and the terms of sale. Kruse v. Hemp, 121 Wn.2d 715, 722-23, 853 P.2d 1373 (1993) (citing Hubbell v. Ward, 40 Wn.2d 779, 785-87, 246 P.2d 468 (1952)). The date of closing is a desirable term, but not essential unless the agreement contains a "time is of the essence" clause. 3 Washington Real Property Deskbook: Conveyances (continued) § 40.4(2)(a) at 40-10 (3d ed. 1996) ("Failure to specify the time period in which the contract will be effective does not render the agreement void because of indefiniteness. Under these circumstances, the court will provide that the contract lasts for a reasonable period of time.") (citing Robertson v. Wilson, 121 Wash. 358, 360-61, 209 P. 841 (1922)).
It has long been the rule in Washington that, if an original contract requires a party's signature in order to be valid, all modifications of the contract must also include that party's signature. Consol. Elec. Distribs., Inc. v. Gier, 24 Wn. App. 671, 676-77, 602 P.2d 1206 (1979) (citing Woolen v. Sloan, 94 Wash. 551, 553, 162 P. 985 (1917)). "[A] contract modifying or abrogating a prior contract, required by statute to be in writing, must itself be in writing to be obligatory.'" Consolid. Elec., 24 Wn. App. at 676-77 (quoting McInnis v. Watson, 116 Wash. 680, 682, 200 P. 578 (1921)); see also Anderson v. Anderson, 128 Wash. 504, 223 P. 323 (1924). If property is owned as a tenancy in common, any agreement to sell the property must be signed by all cotenants. 1B Kelly Kunsch, Washington Practice: Methods of practice § 79.5, at 741 (4th ed. 1997).
Beck argues that the REPSA expired by its terms because she did not sign the extensions and the court did not agree to the extensions, thereby eliminating her obligation to cooperate in closing the sale to the Thomases. The closing date on the REPSA signed by Beck and approved by the trial court, assuming Beck signed the version of the REPSA as it appears in the record, was February 14, 2005. On its face, the REPSA expired long before the summary judgment motion and, therefore, unless Beck repudiated her obligations under it, the Thomases and Rutledge were not entitled to a judgment enforcing the REPSA.
There is an addendum to the REPSA which states, "This offer is subject to court approval and the signature of Susan Beck." CP at 386. The trial court approved the offer and Beck signed the REPSA.
We noted earlier the many changes to the original closing date on the REPSA itself. At the latest, the closing date was February 26, 2005, according to the REPSA executed by Beck, Rutledge, and the Thomases.
Neither Rutledge nor the Thomases dispute that the REPSA clearly conditioned the validity of the sales agreement on Beck's signature and the court's approval or that the REPSA addenda granting extensions of the closing date were not signed by Beck or expressly approved by the court. But they argue that the sale failed to occur only because Beck refused to comply with the trial court's orders. Thus, they argue that they were excused from performance of the sale agreement in February 2005 and entitled to enforce the sale through specific performance of the REPSA as a matter of law due to Beck's repudiation.
The evidence was clear that Beck repudiated (and continues to do so) her signature and agreement to sell the property to the Thomases and, thus, that she has continually failed to abide by the trial court's orders to effectuate partition of the property and has repudiated her obligation to follow through with the court-ordered sale. See Wallace Real Estate Inv., Inc. v. Groves, 124 Wn.2d 881, 898, 881 P.2d 1010 (1994) (repudiation occurs when there is a clear statement or action by one contracting party that expresses an intention not to perform); Turner v. Gunderson, 60 Wn. App. 696, 703, 807 P.2d 370 (1991) (repudiation by one contracting party excuses the injured party's performance and entitles them to restitution or damages).
Even if Beck did not repudiate the REPSA, we hold that the trial court's orders requiring sale of the property to effectuate a partition of Beck and Rutledge's interests in the property, entitled Rutledge to complete the sale according to the court's orders, regardless of the REPSA closing date. The trial court's orders, beginning in 2004, with the exception of the June 2007 order allowing Beck 30 days to pay Rutledge and refinance (which the record fails to demonstrate she did), consistently required Beck to cooperate in a sale of the property to the Thomases. We previously held that the trial court properly ordered the sale of the Gig Harbor property and that Rutledge was entitled to partition as a tenant in common. Rutledge v. Beck, No. 32504-7-II (Wash.Ct.App. Sept. 9, 2005). Here, we hold that Rutledge was entitled to complete the sale pursuant to the trial court's 2005 order and that the March 27, 2008, order requires compliance with the trial court's 2005 order of sale.
The March 28, 2008, order compelling the sale states, "The sale is to be completed and immediately and forthwith pursuant to this Court's order of January 21, 2005." CP at 495. The January 21 order required Beck to sign the sales agreement with the Thomases and required Beck to complete sellers' disclosures and "cooperate in the sale [and] closing of the property." The January 21 order also notes that "cooperation with listing agents was required by prior order." CP at 57 (emphasis added).
Furthermore, specific performance is appropriate in this case due to several factors: (1) the sale of real property and its attendant unique factors; (2) the protracted litigation involving this particular piece of property; (3) the difficulty of valuing this property without access by an appraiser during the litigation; and (4) the proper timing of any damages determination. See Crafts v. Pitts, 161 Wn.2d 16, 23-24, 162 P.3d 382 (2007); 3 Restatement of the Law Second: Contracts 2d § 360 at 171 (1981).
Considering all facts in the record and all reasonable inferences from them in the light most favorable to Beck, under these facts and inferences, there is a clear absence of any genuine issue of material fact and both Rutledge and the Thomases were entitled to judgment as a matter of law enforcing the REPSA sale to the Thomases as ordered by the trial court in January 2005.
II. Debt Calculation
Beck contends that the interest rate on all monies owed to Rutledge should have been five percent. The trial court calculated the amount due to Rutledge using two different interest rates: four percent for the original $50,000 and twelve percent for the "entire amount of the payments made by Rutledge on the underlying mortgage on the property." Br. of Appellant at 37 (internal quotation marks omitted). Rutledge does not respond to Beck's argument on this issue.
We review a trial court's decision setting the interest rate on a judgment for abuse of discretion. "[A] trial court abuses this discretion if it provides for an interest rate below the statutory rate without setting forth adequate reasons for doing so." In re Marriage of Knight, 75 Wn. App. 721, 731, 800 P.2d 71 (1994).
To calculate interest on a judgment, RCW 4.56.110(1) states, "Judgments founded on written contracts, providing for the payment of interest until paid at a specified rate, shall bear interest at the rate specified in the contracts: PROVIDED, That said interest rate is set forth in the judgment." (Emphasis added.) RCW 4.56.110(4) provides, "Except as provided under subsections (1), (2), and (3) of this section, judgments shall bear interest from the date of entry at the maximum rate permitted under RCW 19.52.020 on the date of entry thereof." RCW 19.52.020(1)(a) imposes a statutory interest rate of no more that 12 percent per annum.
Here, the original agreement between Beck and Rutledge stated that "[t]he Fifty Thousand ($50,000.00) dollar judgment shall bear interest at the rate of five (5%) per cent per annum on the unpaid balance." CP at 2. It did not contemplate future payments by Rutledge on the underlying mortgage because it required Beck to pay the mortgage payments. Therefore, any payments owed beyond the $50,000 fall outside the scope of RCW 4.56.110(1) and within the scope of RCW 19.52.020. For those amounts not limited by agreement to 5 percent interest, the trial court was entitled to rely on the legislature's provision for 12 percent per annum as the statutory interest rate. Thus, the trial court did not abuse its discretion and we do not substitute our judgment to change the interest rate it imposed.
III. ATTORNEY FEES
Both the Thomases and Rutledge ask us to reverse the trial court's order denying attorney fees for litigation related to the contract claim. The Thomases state that "despite the fact that an award of attorneys' fees and costs pursuant to a contractual attorneys' fees provision is mandatory, the trial court recently denied an award of fees to the Thomases." Suppl. Br. of Resp'ts Thomas at 2. Rutledge states that "[t]he attorney's fees incurred in defending against this third party claim are clearly recoverable by Rutledge under the contract for sale of the property. . . . The contract provides that if litigation is necessary[] the parties may recover their attorney's fees." Suppl. Response Br. of Resp't Rutledge at 4.
Generally, before a party is entitled to costs and fees on appeal, it must comply with RAP 18.1. Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 710 n. 4, 952 P.2d 590 (1998). RAP 18.1 requires (1) that there be a statutory, common law, or recognized ground of equity making such costs and fees available and (2) that the party making the request specifically state its request in its brief. RAP 18.1(a), (b). Awarding attorney fees under a statute or contract is a matter of discretion with the trial court that will not be disturbed absent a clear showing of an abuse of that discretion. Fluke Capital Mgmt. Servs. Co. v. Richmond, 106 Wn.2d 614, 625, 724 P.2d 356 (1986); see also Entm't Indus. Coal. v. Tacoma-Pierce County Health Dep't, 153 Wn.2d 657, 666, 105 P.3d 985 (2005).
Here, the Thomases sued on the REPSA that provided that "[i]f Buyer or Seller institutes suit against the other concerning this Agreement, the prevailing party is entitled to reasonable attorneys' fees and expenses." CP at 370. Although the trial court based its refusal to award fees to the Thomases on the nature of the partition action, the Thomases' suit was a contract action on a REPSA that contained an attorney fees provision. We uphold the trial court's order requiring sale based on the court's order of sale but also recognize that Beck's repudiation of the REPSA excused strict performance by Rutledge and the Thomases and that they were forced to engage in extensive litigation to obtain specific performance of the real property sales agreement. We agree with the Thomases that the trial court abused its discretion in refusing to consider the award of fees under the REPSA and remand to the trial court for its consideration and award of fees.
The REPSA clearly states that the prevailing party, either buyer or seller, is entitled to attorney fees. Rutledge was a seller, and technically the breaching party, in the Thomases' action for specific performance. The parties have not thoroughly briefed the issue of Rutledge's right to attorney fees against Beck on appeal and, since we remand for the trial court to consider the award of fees to the Thomases, we also remand the issue of whether Rutledge is entitled to recover fees against Beck based on contract.
We affirm the trial court's order requiring sale of the property to the Thomases and the interest rate on the debt owed from Beck to Rutledge. We reverse the trial court's order denying fees to the Thomases and remand that determination to the trial court and also remand for further proceedings on whether Rutledge is entitled to fees based on the REPSA.
If this case is subject to further proceedings in Pierce County Superior Court, it should be assigned to a visiting judge from another county, given Judge Bryan Chushcoff's involvement.
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.
HOUGHTON, J. and BRIDGEWATER, J., concur.