Opinion
No. 46697-6-I.
Filed: June 11, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Snohomish County, Docket No: 97-2-07175-3; Judgment or order under review, Date filed: 05/03/2000.
Counsel for Appellant(s), Michael T. Schein, Maltman Reed North Ahrens Malnati, 801 2nd Ave Ste 1415, Seattle, WA 98104.
Counsel for Respondent(s), Thomas D. Bigsby, 1907 Everett Ave, Suite 400, Everett, WA 98201-3606.
Lester Wear and United Wholesale Supply, Incorporated entered an agreement under which Wear agreed to purchase custom cabinets from United. When the cabinets arrived, some of the cabinets were nonconforming. Wear rejected them, refused to pay United, and indicated that he would not accept the cabinets under any circumstances. United's president left four voicemail messages for Wear asking Wear to call him back, but Wear did not do so. United did not give Wear seasonable notice of its intent to cure the defective tender as required by the Uniform Commercial Code (UCC), and it refused to take back the nonconforming cabinets. United obtained a lien on Wear's property for the amount of the contract and sued Wear for foreclosure of the lien. The trial court dismissed the lien foreclosure, and United appeals.
United's failure to give Wear seasonable notice of its intent to cure the defective tender is not excused by Wear's indication that he would not accept the cabinets under any circumstances or Wear's failure to return calls from United's president. As a result, Wear is not obligated to pay United for the nonconforming cabinets. We therefore affirm the trial court's dismissal of the lien foreclosure and award of attorney fees to Wear. We also award attorney fees to Wear for defending this appeal.
STATEMENT OF FACTS
On June 25, 1997, Lester Wear entered into a contract with United Wholesale Supply to purchase white stained cherry wood custom cabinets for his personal residence. Two days later, Wear changed his orders for the kitchen and buffet wall cabinets to alpine and other cabinets to wheatfield (wood stained). He also changed `glass in mullion doors' in the original contract to `lead glass in suppers.' The revised contract required United to deliver the cabinets on or before July 31, 1997, and required Wear to pay United $23,907 for these cabinets. As part of the contract, Wear agreed `to pay all costs, including reasonable attorneys' fees incurred by [United] in enforcing any of its rights arising out of [the contract].' United delivered the cabinets to Wear's residence on July 22, 1997, which was nine days before the contract's delivery deadline, with the expectation that they would be acceptable to Wear. The next day, United sent Wear an invoice for $25,963.01, which is the amount Wear agreed to pay under the revised contract plus tax, to be paid by August 10, 1997.
When Wear's superintendent began working on the kitchen cabinets, he discovered that some of the cabinets contained colors variations, `missing cabinet backs, apparently missing skins, and more pieces.' Wear's superintendent also determined that some of the cabinets, if completed for installation, would not fit the corresponding wall in Wear's kitchen. Although Wear accepted the wheatfield bathroom and laundry room cabinets, Wear called United's salesperson, explained the defects in the kitchen cabinets, said he did not want them, and ordered United to take them back. Wear later identified additional defects in the kitchen cabinets, including missing doors, mismatched wood grain, and incorrect width of the wood stock. During his meeting with United's salesperson, `Wear made it quite clear . . . that he would not accept the cabinets under any circumstances.' In response, United's salesperson told Wear that he needed to get instructions from United's president. United's salesperson did not tell Wear that United intended to make a seasonable tender of conforming cabinets. Immediately thereafter, Wear purchased wood toned cabinets (not white stained) for his kitchen from another supplier.
United's president left four voicemail messages for Wear over ten days asking Wear to call him. Wear did not return these calls and never spoke to United's president. Several weeks later, Wear, through his attorney, sent United a letter asking United to take back the nonconforming kitchen cabinets. In this letter, Wear enclosed $3,489 for the wheatfield bathroom and laundry room cabinets that he accepted and installed in his residence. United accepted this payment, but refused to take back the nonconforming cabinets. Wear did not pay United for the nonconforming cabinets.
United obtained a lien on Wear's property and sued Wear for foreclosure of that lien. The trial court found that United breached the contract by not delivering conforming goods and that Wear rightfully rejected these goods. It also entered the following finding: `The court . . . certainly wonders if there was a certain element of buyer's remorse in the choice of color.' Nonetheless, because neither United's salesperson nor its president told `Wear that a seasonable tender of cabinets would be forthcoming[,]', the court concluded that Wear had no obligation to allow United to cure the defective tender. It therefore dismissed the lien foreclosure. The trial court also awarded $9,700 in attorney fees1 to Wear as the prevailing party. United appeals.
DISCUSSION I. Dismissal of Lien Foreclosure
United urges this court to reverse the trial court's dismissal of its lien foreclosure and conclude that it is entitled to judgment as a matter of law. Under the UCC, `[w]here any . . . delivery by the seller is rejected because non-conforming and the time for performance has not yet expired, the seller may seasonably notify the buyer of his [or her] intention to cure and may then within the contract time make a conforming delivery.' RCW 62A.2-508. `Where the buyer rejects a non-conforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he [or she] seasonably notifies the buyer have a further reasonable time to substitute a conforming tender.' RCW 62A.2-508(2). The seller's seasonable notification to the buyer of his or her intention to cure the nonconforming tender is a condition precedent to the seller's right to cure the nonconforming tender. Peter Pan Seafoods, Inc. v. Olympic Foundry Co., 17 Wn. App. 761, 769, 565 P.2d 819 (1977). `Where a defendant's obligation is subject to a condition precedent of performance by the plaintiff, the latter must allege and prove that he:
(1) performed the condition precedent, or (2) was excused from performance.'
Puget Sound Serv. Corp. v. Bush, 45 Wn. App. 312, 316, 724 P.2d 1127 (1986) (quoting Langston v. Huffacker, 36 Wn. App. 779, 786, 678 P.2d 1265 (1984)). For example, a seller is excused from performing the condition precedent when the buyer repudiates the contract. Bush, 45 Wn. App. at 319.
United admits that it delivered nonconforming goods to Wear and that it failed to give Wear seasonable notice of its intent to cure the defective tender. It therefore did not perform the condition precedent of seasonably notifying Wear of its intention to cure the nonconforming tender. United nonetheless maintains that Wear's refusal to return four telephone calls from its president excused its failure to give such notice. United also asserts that Wear repudiated the contract and in doing so excused it from performing the condition precedent when he refused to accept the cabinets under any circumstances.
Although United's president left four voicemail messages for Wear over ten days asking Wear to call him, United did nothing else. As Wear points out, United did not attempt to notify Wear of its intent to cure the defective tender in person or via written letter delivered personally, by mail, or by fax. United speculates that such acts would have been useless. The record contains no evidence to support this statement. Indeed, further attempts to contact Wear would have demonstrated United's genuine desire to cure the defective tender. Had Wear actively avoided additional attempts by United to notify him, we might indeed be able to conclude that Wear prevented United from performing the condition precedent. But under the facts of this case, we conclude that United's inadequate efforts to contact Wear were insufficient to relieve United of its statutory duty to notify Wear of its intent to cure. We therefore conclude that Wear's refusal to return four phone calls from United's president does not excuse its failure to notify Wear of its intent to cure the defective tender.
Next, relying on Bush, United argues that Wear repudiated the contract when he indicated to United's salesman that he refused to accept the cabinets under any circumstances. In Bush, the Bushes entered an agreement to purchase a condominium and a private vessel moorage slip from Puget Sound Service Corporation. Bush, 45 Wn. App. at 314. Under this agreement, Puget Sound agreed to provide financing to the Bushes by the closing date. Bush, 45 Wn. App. at 314-15. The Bushes discovered that the moorage slip was smaller than Puget Sound had represented. Bush, 45 Wn. App. at 315. Although the Bushes advised Puget Sound of the problem and Puget Sound indicated that the problem would be remedied, the Bushes believed that the slip would not be made to conform. Bush, 45 Wn. App. at 315. They therefore wrote a letter to Puget Sound that `unequivocally rescinded' the agreement before the closing date. Bush, 45 Wn. App. at 317; see Bush, 45 Wn. App. at 315. The Court of Appeals concluded that `[t]he Bushes' repudiation excused Puget Sound from performing the condition precedent of acquiring the agreed financing.' Bush, 45 Wn. App. at 319.
The present case is distinguishable from Bush in that Wear did not unequivocally repudiate his contract with United. Wear indicated to United's salesman that he refused to accept the nonconforming cabinets under any circumstances, but he never suggested that he would not have accepted cabinets that conformed with the specifications in the contract. Although the trial judge opined that Wear simply changed his mind on the cabinets (from alpine to wood toned) as he had once before, there is no indication in the record that Wear would not have accepted replacement cabinets from United if United had expressed a willingness to cure the defective tender. Based on the record in this case, repudiation has not been established. We therefore reject United's argument that Wear excused it from performing the condition precedent when he refused to accept the nonconforming cabinets. Wear is not obligated to pay United for the nonconforming cabinets because United inexcusably failed to give Wear notice of its intent to cure the nonconforming tender. We therefore affirm the trial court's dismissal of United's lien foreclosure action.
II. Attorney Fees
Wear argues that he is entitled to attorney fees on appeal. We agree.
The terms of the contract at issue in this case state that Wear must pay United's attorney fees. Nonetheless, if a contract specifically provides that attorney fees and costs incurred shall be awarded to one of the parties, the prevailing party in an action to enforce the provisions of the contract is entitled to reasonable attorney fees and costs regardless of whether that party is the one specified in the contract. RCW 4.84.330.
Because Wear is the prevailing party in this action, we award attorney fees and costs to him following his compliance with RAP 18.
The trial court actually awarded Wear $10,000 in attorney fees and then reduced that figure $300 to offset the amount Wear owed United for a bathroom cabinet that Wear installed in his residence.
CONCLUSION
United's failure to give Wear seasonable notice of its intent to cure the defective tender is not excused by Wear's refusal to return calls to United's president or Wear's indication that he would not accept the nonconforming cabinets under any circumstances. Consequently, Wear is not obligated to pay United for the cabinets. We therefore affirm the trial court's dismissal of the lien foreclosure and award of attorney fees to Wear.
WE CONCUR: GROSSE, J., BECKER, J.