Opinion
No. 74-353
Decided July 8, 1975. Opinion modified and as modified petition for rehearing denied August 19, 1975.
From a judgment dismissing plaintiff's quiet title action and granting defendant specific performance of a contract for sale of the real property, plaintiffs appealed.
Appeal Dismissed
1. CONTRACTS — Conditional — Actions of Governmental Bodies — Specific Enforcement — Not Available. A contract that depends for its performance on the act or assent of a person not a party to the agreement will not be specifically enforced, and this is particularly true of contracts conditioned on the actions of governmental bodies whose discretionary functions are not ordinarily subject to judicial fiat; hence, such contracts are not specifically enforceable before the governmental action contemplated by the agreement has been completed.
2. VENDOR AND PURCHASER — Sale of Real Property — Conditional — Rezoning Action — Contingent — Not Specifically Enforceable. In action relative to contract for sale of real property, the obligations of both parties under the contract were conditioned on approval of a rezoning application and that rezoning could not be mandated by the trial court in the contract action; hence, the contract remained contingent in nature and could not be specifically enforced by the trial court.
3. APPEAL AND ERROR — Contract and Judgment — Conditional — Zoning Action — No Final Judgment — Appeal Dismissed. In action relative to real estate sales contract, not only the contract, but the judgment thereon as well, must of necessity depend for finality upon the actions of the local zoning body, and accordingly there is no final judgment to affirm or reverse; thus the appeal must be dismissed and the cause remanded for such further action as may be deemed advisable by the trial court and the parties.
Appeal from the District Court of the County of Adams, Honorable Oyer G. Leary, Judge.
David Berger, for plaintiffs-appellants.
Stitt, Wittenbrink Roan, P.C., James Stitt, John E. Joslin, for defendant-appellee.
Plaintiffs, Joseph and Mary Himes, appeal from a judgment dismissing their quiet title action and granting defendant Harvey Stitt specific performance of a contract for the sale of real property. We conclude that the judgment is not final, and therefore, we dismiss the appeal.
In November 1971, Mr. and Mrs. Himes agreed to sell certain real property in Adams County to Stitt for a total purchase price of $156,000. The agreement described the property, "consisting of 80 Acres more or less," and acknowledged receipt of a $200 down payment. The agreement further stated: "Selling price to be based on $1,950.00 per acre. Acreage to be verified by survey provided and paid for by Seller, after zoning is approved." Mr. and Mrs. Himes were obligated to furnish evidence of title "After approval of zoning" and to convey the property by warranty deed "20 days after approval of zoning."
A typewritten addendum to this agreement provided, among other things, that Mr. and Mrs. Himes would permit Stitt, at his own expense, to conduct core drillings on the property to determine the quality of the gravel, and this determination was to be "a condition to making application for rezoning" the property. Concerning rezoning, the addendum stated:
"The Buyer, at his expense with the cooperation of Seller, will apply for rezoning of the subject property to permit mining and processing and removal of gravel, and in the event said zoning is not obtained within 150 days from date of this contract or within such reasonable time as the parties hereto may mutually agree, then in that event this contract shall be null and void provided, that either party has given 30 days notice, and the Buyer shall have returned to him his down payment in the sum of $200.00."
The core drillings were done, but when a survey of the property was undertaken for the purpose of applying for rezoning, it was learned that the north boundary of the property could not be ascertained because of the change in the course of the South Platte River. This discovery provoked a boundary dispute between Mr. and Mrs. Himes and Robert and Amelia King involving certain portions of the property the contract was intended to include. As a result, application for rezoning was not made because the survey could not be completed, and efforts to proceed under this agreement were stalled.
Negotiations between the Himeses and Stitts to resolve the difficulties were unproductive. In January 1973, Mr. and Mrs. Himes wrote a letter to Stitt attempting to cancel the agreement, enclosing a check for $200 in an attempt to refund the down payment. Stitt promptly returned the Himes's $200 check and recorded the contract. At no time did Stitt waive the zoning requirements of the contract.
In April, Mr. and Mrs. Himes brought this quiet title action against Stitt and the Kings. Stitt counterclaimed, seeking reformation of the description of the property covered by the agreement and specific performance of the contract as reformed, or, in the alternative, damages for breach of contract. The Himeses denied Stitt's allegations.
Although the record does not show that the Kings filed a responsive pleading, their attorney was present in court prior to trial when counsel for Mr. and Mrs. Himes read a "stipulation" into the record which resolved the boundary disputes between the Kings and the Himeses. The trial court accepted this "stipulation," but there is no indication in the record that the Kings were dismissed from the action, and they are not parties to this appeal.
Trial proceeded on the remaining issues between the Himeses and Stitt. Finding that the essential facts were not in dispute, the trial court concluded that Stitt should be granted "relief in the nature of specific performance." Judgment was subsequently entered for Stitt, in which it was ordered:
"(1) That the Court retain jurisdiction of this matter until such time as the property has been conveyed to Defendant Stitt and Defendant Stitt pays the agreed consideration unless the contract is sooner terminated by any action of this Court;
"(2) That Plaintiffs have ten (10) days in which to complete the King stipulation in written form and submit same to Defendant Stitt's surveyor;
"(3) That Defendant Stitt then have fifteen (15) days in which to have his survey completed and certified;
"(4) That when said survey has been completed, that Defendant Stitt make application for zoning as provided by the contract and at which time the 150-day time for approval shall commence and which shall apply unless otherwise extended by the Court for any reasonable time to determine either approval or rejection of said application.
"(5) That in the event there be any title problem, that Plaintiffs have the sixty-day provision of the contract to correct same, failing in which the Court would consider any reasonable extension in which to perfect title."
This appeal was perfected. With the exception of Stitt's motion for stay, in which he recited that "the survey is nearing completion," the record does not reflect that the parties have taken any action pursuant to the judgment of the trial court.
To be final, a judgment must end the suit in which it is entered. See Hyman Co. v. Velsicol Corp., 119 Colo. 121, 201 P.2d 380. The lack of finality of the judgment in this case, however, arises primarily from the posture of the case on its merits, and not solely from the terms of the judgment. The conditional character of the contract itself, which forms the basis for the judgment, precludes finality.
[1,2] It is well settled that a contract which depends for its performance on the act or assent of a person not a party to the agreement will not be specifically enforced. See Bivens v. Hull, 58 Colo. 338, 145 P. 694; Hill v. Lofgren-Harris Mercantile Co., 53 Colo. 566, 129 P. 208. This is particularly true of contracts conditioned on the actions of governmental bodies, see Dworman v. Mayor Board of Aldermen, 370 F. Supp. 1056 (D. N.J.); Popular Refreshments, Inc. v. Fuller's Milk Bar Recreation Center, 85 N. J. Super. 528, 205 A.2d 445; Cicalo v. New York City Housing Development Administration, 361 N.Y.S.2d 263, whose discretionary functions are not ordinarily subject to judicial fiat. See Potter v. Anderson, 155 Colo. 25, 392 P.2d 650; Ahern v. Baker, 148 Colo. 408, 366 P.2d 366; Hall v. City County of Denver, 117 Colo. 508, 190 P.2d 122. Hence, such contracts are not specifically enforceable before the governmental action contemplated by the agreement has been completed. Here, the contract which the trial court endeavored to specifically enforce remained contingent in nature. The obligations of both parties under the contract were conditioned on approval of the rezoning application and rezoning of the property could not be mandated by the trial court in this proceeding. See State ex rel. Holmes v. Peck, 92 Colo. 224, 19 P.2d 217; Corper v. City County of Denver, 36 Colo. App. 118, 552 P.2d 1.
"This seems so plain that it is not necessary to say anything more about it." Hill v. Lofgren-Harris Mercantile Co., supra.
[3] Not only the contract, but the judgment as well, must of necessity depend for finality upon the actions of the local zoning body. There being no final judgment to affirm or reverse, the appeal is dismissed and the cause is remanded for such further action as may ben deemed advisable by the trial court and the parties to this action. See Hinderlider v. Canon Heights Irrigation Reservoir Co., 117 Colo. 183, 185 P.2d 325.
JUDGE ENOCH and JUDGE SMITH concur.