Thomas B. Weaver, Appellant, vs. Burnet Realty, Inc., et al., Defendants, Randy Hobbs, et al., Respondents.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002)

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-83

 

Thomas B. Weaver,

Appellant,

 

vs.

 

Burnet Realty, Inc., et al.,

Defendants,

 

Randy Hobbs, et al.,

Respondents.

 

Filed November 4, 2003

Affirmed

Gordon W. Shumaker, Judge

 

Hennepin County District Court

File No. CT0115192

 

Alfred Stanbury, Stanbury Law Firm P.A., 2209 St. Anthony Parkway, Minneapolis, MN 55418 (for appellant)

 

Eric J. Riensche, Felhaber, Larson, Fenlon & Vogt, P.A., 225 South Sixth Street, Suite 4200, Minneapolis, MN 55402 (for respondents Hobbs and Residential Renewal, Inc.)

 

            Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

Appellant argues that the district court erred in granting summary judgment in this real estate conveyance dispute.  Appellant also argues that the district court abused its discretion when it dismissed his "false-pretenses" claim and failed to award sanctions against respondents.  Because there are no issues of material fact and the district court did not err in its application of law or abuse its discretion, we affirm.

FACTS

Appellant Thomas Weaver agreed to sell certain real estate to respondent Residential Renewal, Inc., of which respondent Randy Hobbs was vice-president.  The purchase agreement required the removal of "excess debris & personal property":  "Buyer agrees to purchase property in as is condition.  All excess debris & personal property to be removed prior to Jan. 28th 2000.  Seller agrees to escrow $2,000.00 at closing to be reimbursed to seller if all debris is removed prior to Jan 28th 2000."

At the closing on January 3, 2000, the parties executed an Escrow Agreement respecting the removal of debris from the real estate:

Seller & Buyer agree to put $2000 into an escrow account w/Burnet Title until all debris is removed [from] the property.  If this is not completed by the seller by completion date the funds are to automatically be released to the buyer . . . . Written consent to release escrow is need[ed] only by the buyer to release fund back to the seller.  Seller agrees to notify buyer by 1/24/2000 to have property inspected.  If the property is not satisfactory to the Buyer he will notify Seller ASAP.

 

Residential Renewal took possession of the real estate on January 28, 2000.  Weaver left on the premise a wash bucket, a metal screen, unattached window screens, a rattan table, a rattan bench, a closet cabinet, two "workhorses," a water softener, a dishwasher, a workbench, a ladder, a shovel, and some fallen ceiling plaster.  Weaver admitted leaving these items and admitted in his deposition that "Mr. Hobbs put it very specifically.  He said that anything that wasn't nailed down was considered debris."  This was Weaver's understanding of the word "debris" when he signed the escrow agreement.

After Residential Renewal took possession, Weaver requested more time to remove the debris but Hobbs refused and sought the release of the escrowed $2,000.  Weaver objected to the release of the escrow, claimed that Residential Renewal breached the purchase agreement, and that Hobbs had acted under false pretenses by leading Weaver to believe the removal of debris was sufficient and by inducing Weaver to give Hobbs two valuable pieces of furniture.  Weaver sued Residential Renewal, Inc., Hobbs, and others.

While the action was pending, Hobbs's deposition was scheduled for April 5, 2002.  Hobbs's attorney informed Weaver that Hobbs would not be able to attend and asked to reschedule the deposition.  It was not rescheduled.

Residential Renewal, Inc. and Hobbs moved for summary judgment.  Weaver opposed the motion and moved for sanctions for Hobbs's failure to attend the scheduled deposition.  Weaver also moved for summary judgment.  The district court granted the motions of Residential Renewal and Hobbs, denied Weaver's motions, and ordered the release of the escrowed funds to Residential Renewal and Hobbs.  Weaver appeals.

D E C I S I O N

 

            "On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law."  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

1.         Contract Claim

            Weaver contends that there exist material questions of motive, intent, and credibility that require a trial for resolution.  The district court disagreed, noting that it is undisputed that the purchase agreement and the escrow agreement required removal of debris by the possession date; Weaver understood and accepted the term "debris" to refer to "everything not nailed down"; and Weaver admitted that various items of debris were left on the premises as of the possession date.

            Summary judgment is appropriate if there is no ambiguity in a contract and no material underlying facts are in dispute.  City of Virginia v. Northland Office Props. Ltd. P'ship, 465 N.W.2d 424, 427 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991).  In the understanding of the parties, the debris-removal provisions of the purchase agreement and the escrow agreement were unambiguous.  Each party knew precisely what those provisions required; and Weaver has admitted or conceded the facts that would require the release of the escrowed funds to Residential Renewal.  There were no material facts for trial underlying the enforcement of the debris-removal escrow.  Thus, summary judgment was appropriate.

2.         Substantial Performance

            Weaver argues that the debris left on the premises on the possession date was de minimis and that the doctrine of substantial performance applies.  That doctrine requires

performance of all the essentials necessary to the full accomplishment of the purposes for which the thing contracted for has been constructed, except for some slight and unintentional defects which can be readily remedied or for which an allowance covering the cost of remedying the same can be made from the contract price.

 

Ylijarvi v. Brockphaler, 213 Minn. 385, 390, 7 N.W.2d 314, 318 (1942).

            Residential Renewal and Hobbs argue that the doctrine of substantial performance does not apply to this type of contract; but, even if it does, Weaver admitted that he intentionally left some debris on the premises because he ran out of time to remove it.  Substantial performance does not apply "in cases of intentional deviation from the terms of the contract."  Apache Plaza, Ltd. v. Midwest Sav. Ass'n, 456 N.W.2d 729, 733 (Minn. App. 1990), review denied (Minn. Aug. 23, 1990).  Weaver did make that admission.  Furthermore, the parties agreed to do what the application of the doctrine seeks to do, namely, hold back money to remedy performance deficiencies.  There is no fact question as to substantial performance.  The doctrine does not apply here.

3.         Waiver          

            Weaver contends that there is a fact question as to whether Residential Renewal and Hobbs breached the purchase agreement and escrow agreement, thereby waiving any claim of entitlement to the escrowed funds.  Weaver notes that the escrow agreement provided that "Seller agrees to notify Buyer by 1/24/2000 to have property inspected" and that "[i]f the property is not satisfactory to the Buyer [Buyer] will notify Seller ASAP."  It is undisputed that Weaver did not give the inspection notice.  By failing to give the required notice, Weaver failed to trigger any duty by the buyer to inspect and to express satisfaction or dissatisfaction with the premises.  Weaver cannot now properly claim the breach of a duty that never became fixed.

4.         False-Pretenses Claim

Weaver next argues that Hobbs, by being "overly friendly" and not expressing dissatisfaction with Weaver's removal of personal property and debris at the time of his January visits, induced Weaver to part with two pieces of furniture.  The district court correctly recognized that "false pretenses" is not a cause of action.  Weaver cites only one case out of the Texas Federal District Court to support his proposition that "when discovery is not relevant to a court's consideration of a pending motion for summary judgment, the motion may be granted without discovery."  Walker v. U.S. Envtl. Prot. Agency, 802 F. Supp. 1568, 1576 (D.C. Tex. 1992).  This proposition does not relate or support Weaver's argument as to his false-pretenses argument.

Assignment of error in a brief "based on mere assertion and not supported" by authority is waived "unless prejudicial error is obvious on mere inspection."  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  Here, Weaver admits that the furniture he gave to Hobbs was a gift and does not claim he was promised anything in return.  Thus, any reliance by Weaver on this exchange as inducement on the part of Hobbs would be contrary to Weaver's own admission that the items were a gift.  We conclude that this issue is without merit because Weaver's brief is based on mere assertion; thus, Weaver waived this issue on appeal.

5.         Sanctions

Weaver noted the taking of Hobbs's deposition.  Hobbs's attorney informed Weaver's attorney that Hobbs had a conflict on the date in the notice and asked that the deposition be rescheduled, providing alternative dates on which Hobbs could attend.  Weaver's attorney declined to reschedule the deposition and sought sanctions for Hobbs's failure to attend.  The district court denied the motion for sanctions.

The award of discovery sanctions is within the district court's discretion.  Przymus v. Comm'r of Pub. Safety, 488 N.W.2d 829, 832 (Minn. App. 1992), review denied (Minn. Sept. 15, 1992).  We will not reverse absent a showing of an abuse of that discretion.  Cornfeldt v. Tongen, 262 N.W.2d 684, 697 (Minn. 1977). 

Under Minn. R. Civ. P. 37.04, the district court "may make such orders in regard to the failure [of a party to attend his own deposition] as are just . . . ."  The court noted that Hobbs's attorney attempted to cooperate by proposing alternative dates for the deposition and by offering to stipulate to extend the discovery deadline so as to ensure the timeliness of the deposition, but that Weaver's counsel refused to agree to change the date.

Relying on Minn. R. Gen. Pract. 115.10 and its own scheduling order, the court ruled that Weaver was required to bring his motion as a last resort, after trying to resolve the issue without court intervention, but that Weaver brought "a motion for sanctions as a first resort."

We cannot find an abuse of the court's discretion here.

Affirmed.