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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Romero v. Cox (08/31/2007) sp-6153

Romero v. Cox (08/31/2007) sp-6153, 166 P3d 12

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


GEORGE M. ROMERO, )
) Supreme Court No. S- 11267
Appellant, )
) Superior Court No. 3AN-01-9000 CI
v. )
) O P I N I O N
GARY O. COX, )
) No. 6153 - August 31, 2007
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:   George  M.  Romero,  pro   se,
          Anchorage.   M. Gregory Oczkus,  Greg  Oczkus
          Law Offices, Anchorage, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          EASTAUGH, Justice.

I.   INTRODUCTION
          George  Romero  and Gary Cox executed an Earnest  Money
Receipt  and Agreement for Romeros purchase of three lots  and  a
mobile  home.   Romero took possession of the property,  but  the
sale never closed.  More than three years after the agreement was
executed,  Cox  sued  for forcible entry and detainer  (FED)  and
damages.    Romero  vacated  the  premises  by  stipulation   but
counterclaimed for specific performance and damages. The superior
court  granted  Cox  partial summary  judgment  on  the  specific
performance  claim  because  Romero was  unable  to  perform  the
contract.  Following trial, the court awarded Cox damages for the
propertys reasonable rental value and for utility bills  Cox  had
paid  while  Romero lived on the property.  The court found  that
Romero  failed to prove that he was entitled to any damages,  but
did  not  address  Romeros contention that Cox failed  to  return
twenty apple trees that had been left on the property when Romero
vacated it.
          Romero appeals pro se.
          We  affirm the superior courts decision, but remand for
consideration of Romeros claim that Cox is liable for failing  to
return the twenty apple trees.
II.  FACTS AND PROCEEDINGS
          By  Earnest  Money  Receipt  and  Agreement  signed  in
February 1998, George Romero agreed to buy from Gary Cox a mobile
home and three lots in the Frislie Subdivision in Anchorage.  The
price was $110,000.  Romero paid Cox earnest money of $1,000  and
was  to pay $14,000 more at closing, for a total down payment  of
$15,000. Cox financed the remaining $95,000 at eight percent over
fifteen years.  Closing was to occur within sixty days after  Cox
obtained  a  title insurance policy or report,  and  Cox  was  to
obtain the policy or report within 120 days of April 14, 1998.
          On April 17, 1998 Cox obtained a Preliminary Commitment
for  Title Insurance effective as of April 14.  On May 23  Romero
wrote Cox a check for $4,000 with the notation partial closing on
its   face.   Romero  never  paid  Cox  the  remaining   $10,000.
According to Cox, Romero moved onto the property in April 1998.
          Coxs  attorney served Romero with a notice to  quit  in
July  2001.   Cox then sued for forcible entry and  detainer  and
damages,  and  on  July  30  the  parties  signed  a  stipulation
requiring  Romero to vacate the premises and remove his  personal
effects by August 7.  The parties later extended this deadline to
September  30,  but  Romero did not remove all  of  his  personal
property by that time.
          Romero  filed an answer and a counterclaim for specific
performance and damages.1  Upon motion by Cox, the superior court
granted  partial  summary  judgment on the  specific  performance
claim  because  Romero  was  unable to  deposit  the  accumulated
interest, real property taxes paid by the Plaintiff[,] . . .  and
the  balance of the down payment.  The court calculated the total
amount due under the agreement as $41,455.71.2
          Because Romero had not removed his personal property, a
second  order required Romero to remove his property by  May  31,
2002  except for items covered by snow.  They were to  remain  on
the  land  until Coxs attorney notified Romero that the snow  had
melted, at which time Romero could enter and remove them.
          Although  Cox had already been granted summary judgment
on  the  specific  performance claim, Romero  moved  for  summary
judgment  on  that claim.  He also requested certification  under
Alaska  Civil  Rule 54(b) and relief from judgment  under  Alaska
Civil  Rule  60(b).   A  hearing was set for  November  4,  2002.
Because  Romero  did  not appear on time for oral  argument,  the
court ruled that it would rely on the filings.  On November 6 the
court  denied  Romeros summary judgment motion, which  the  court
described  as  a motion to reconsider, and also denied  his  Rule
54(b)  and  Rule 60(b) motions.  Romero moved for reconsideration
and  again  requested specific performance.  The  superior  court
          denied the motion as moot because the property had already been
sold to a third party.
          The  court held a bench trial on the breach of contract
and  damages  claims  in September 2003.   Romero  and  Cox  gave
different  explanations at trial for why the sale  never  closed.
Romero testified that Cox failed to remove trash and contaminated
soil  from  the property and failed to vacate certain  easements.
Cox  testified that he had been ready to close in 1998, but  that
Romero  had said he could not close until his divorce  was  final
and  his  assets  were  freed.  Cox and  his  witnesses  disputed
Romeros testimony about the condition of the property.  Coxs son,
Fred  Cox,  testified  that he and his  brother  cleaned  up  the
property  and  removed the trash and that Romero  seemed  pleased
with  their  work.   Cox testified that a  later  buyer  had  the
property  tested  for  contamination and found  none.   Cox  also
testified  that Romero never complained that Cox had not  vacated
the easements until Cox began proceedings to evict Romero.
          Cox  testified  at trial that during  the  three  years
Romero occupied the property before eviction, he had moved a  log
cabin  onto  the  property and operated a  landscaping  business.
After  Romeros  eviction, the parties agreed  that  Romero  could
remain on the property for two more months at $700 per month.
          On  the  issue  of damages, Cox and an  expert  witness
testified at trial to the rental value of the property.  Cox also
testified that while Romero lived on the property, Cox had to pay
fuel oil and electric bills totaling $1,729.82.
          Romero  testified to the value of improvements he  made
to  the trailer and to the value of landscaping work he performed
on  the  property.  Romero also testified that he had been unable
to  remove  twenty of his apple trees from the  property  due  to
snow.  He estimated their total value at between $800 and $1,200.
When  he  later returned for the trees, they were gone.  Although
Coxs  attorney was to let Romero know when the snow melted so  he
could  remove his remaining property, Romero testified that  Coxs
attorney never contacted him.
          The  superior  court  ruled for  Cox  and  awarded  him
damages  equivalent to the propertys rental value.  The  superior
court  also  concluded  that Romeros counterclaims  were  without
merit  and  that  he  was  not entitled to  any  credit  for  the
improvements  he  made  to the property.  The  decision  did  not
mention the apple trees.
          Romero raises twenty-two issues on appeal.
III. DISCUSSION
     A.   Standard of Review
          We  review  the  trial  courts factual  determinations,
including  those pertaining to the credibility of witnesses,  for
clear  error.3  We will conclude that there was clear error  only
if  after  a thorough review of the record, we come to a definite
and  firm conviction that a mistake has been made.4  All  factual
findings  are  reviewed  in  the  light  most  favorable  to  the
prevailing party below.5
          We apply our independent judgment to questions of law.6
When  the  meaning  of  a contract is at  issue,  we  review  the
superior  courts interpretation of the contract terms  using  our
          independent judgment.7
          Although we judge a pro se litigants briefing by a less
demanding  standard,8  if  a  pro se litigant  raises  issues  in
cursory fashion, without citing any authority, they are waived.9
     B.   Romero Has Waived Eight Issues on Appeal.
          Romero  has  failed to adequately brief  eight  of  his
twenty-two  appellate  issues.  Romero mentions  seven  of  these
issues only in the part of his brief titled Issues Presented  for
Review, and does not discuss them at all in the remainder of  the
brief.  He discusses the eighth of these issues in his brief, but
it is not clear what legal argument Romero is making.  Even if he
had adequately briefed the issues, they appear to lack merit.  We
will briefly address these issues in turn.
          Romero  first argues that the court erred by dismissing
his original counterclaim.  The record reveals that the claim was
dismissed  for his failure to pay the filing fee.   Moreover,  he
was  permitted to refile his counterclaim in 2003, so he was  not
injured by the dismissal of his original counterclaim.
          Second,  Romero contends that the superior court  erred
by  charging him both interest and rent.  He apparently thinks he
was  charged both rent and interest on the purchase  price.   But
the  court order awarded prejudgment interest on the fair  rental
value  of  the  property,  not on the purchase  price.   Awarding
prejudgment interest on the rental award was appropriate here.10
          Romeros third argument is that the superior court erred
by finding that he failed to mitigate damages by not closing when
he  had the ability to do so.  But the superior court never found
that Romero failed to mitigate damages.
          Romero  next argues that he was entitled to credit  for
his  improvements to the mobile home.  The superior  court  found
that  the  improvements had not been completed and that they  did
not  add  value to the mobile home.  Romero has not  argued  that
these findings were clearly erroneous.
          Romeros fifth argument is that the superior court erred
by  failing  to certify the partial summary judgment  under  Rule
54(b).   We  have  held  that [a] partial summary  judgment  that
decides  only some of the issues pertinent to a single  claim  is
interlocutory  and  not within the scope of Civil  Rule  54(b).11
Here, the partial summary judgment motion only addressed specific
performance, so certification under Rule 54(b) was not  required,
and  there  is  no indication the court abused its discretion  in
declining to grant the motion.
          Romero  next asserts that the superior court failed  to
recognize  genuine issues of material fact.  Because a trial  was
held  on  the issue of damages, the superior court did  recognize
that  there  were some disputed issues of material fact.   Romero
might  be  arguing that there were other issues of material  fact
that  he was not permitted to raise at trial.  But because Romero
does  not explain what these other issues might be, he has waived
this argument.
          Romeros  seventh  argument is that the  superior  court
erred  when  it  denied  his Rule 60(b) motion  for  relief  from
judgment.   Romero has waived this argument because he  does  not
explain why he is entitled to relief from judgment.
          Romeros  eighth  argument is that  the  superior  court
failed  to  apply  the parol evidence rule  and  the  statute  of
frauds.   We  cannot determine why Romero thinks the  statute  of
frauds  and parol evidence rule were misapplied.  He argues  that
his  agreement with Cox was fully integrated, but does not  argue
that the superior court relied upon extrinsic evidence to vary or
alter the terms of the written agreement.  The issue is therefore
waived.12
          We next address Romeros remaining fourteen issues.
     C.   The  Trial  Court  Did  Not  Erroneously  Construe  the
          Earnest Money Agreement as a Lease.

          Romero  raises  various contentions that center  around
his  argument that the superior court erroneously interpreted the
earnest  money  agreement as a lease.  Thus, he argues  that  the
court should not have interpreted the agreement as a lease;  that
if  he  was in fact a tenant, the mobile home was not up  to  the
standards  established  in the Uniform Residential  Landlord  and
Tenant Act (URLTA); that if there was a tenancy, the court  erred
by  not  finding  that the premises were uninhabitable  until  he
renovated them; and that because the agreement was not  a  lease,
he should have been foreclosed upon instead of evicted.
          Contrary  to  Romeros assertions,  the  superior  court
never  found that the earnest money agreement was a  lease.   The
court  instead  described it as an agreement  whereby  the  owner
(Cox)  would  sell  the property to Romero for $110,000.   Romero
might  be confused by the fact that Cox was awarded damages  that
included  an  amount  equal  to the  fair  rental  value  of  the
premises.   Under the doctrine of quantum meruit,  when  a  valid
contract  does  not  exist,  a  plaintiff  is  entitled  to   the
reasonable  value  of the services rendered to  the  defendant.13
Although Cox and Romero initially signed a contract for sale, the
contract  was  no longer valid because Romero and Cox  failed  to
close  within  the  specified period of  time,  and  because  the
contract  did  not  entitle  Romero to  take  possession  of  the
premises  before closing.  Cox was therefore entitled to  recover
the fair rental value.
          Because  there was no lease, Romero cannot  argue  that
the  URLTA  was violated or that the premises were uninhabitable.
The URLTA does not apply to land sale contracts.14
          Romero  alternatively argues that if the agreement  was
not a lease, an FED action was improper.  Romero contends that he
should  have  instead been foreclosed upon  or  ejected.   He  is
incorrect.   It  is proper to bring an FED action even  when  the
URLTA  does not apply.15  If a person continues to remain on  the
property  at the expiration of the time limited in the  lease  or
agreement under which that person holds,16 he may be evicted.  Cox
testified  that  he  permitted Romero to move onto  the  property
because  he  expected Romero to pay him the balance of  the  down
payment.   When  Romero failed to pay the  balance  of  the  down
payment within the specified time, Cox was entitled to evict him.
     D.   The  Superior Court Correctly Denied Romeros Motion for
          Partial Summary Judgment.

          Romero  seems to argue that he was entitled to  partial
summary  judgment  on the breach of contract  issue  because  Cox
breached the agreement.  Summary judgment is proper if there  are
no  genuine issues of material fact.17  As Romero argues, parties
may rely on verified pleadings in their summary judgment motions.18
Romeros  verified counterclaim asserts that Cox  did  not  comply
with his statutory duties.  Romero argues that Cox confessed that
he  was  in  material breach of the contract and  cites  to  Coxs
supplemental affidavit filed May 6, 2002.  In that affidavit, Cox
merely  admitted that a car remained on the premises, and  stated
that  he  was willing to remove it at any time.  These statements
do  not  establish a material breach of contract entitling Romero
to partial summary judgment.
          Cox  stated in the same affidavit that he believed that
he  and  his sons had fulfilled all of his obligations to  Romero
under  the  agreement.  Because the parties disputed whether  Cox
had  fulfilled his duties, there was a genuine issue of  material
fact,  and it would have been error to grant summary judgment  to
Romero.
     E.   The  Superior Court Did Not Err when It Ordered  Romero
          To  Deposit More than $41,000 To Maintain an Action for
          Specific Performance.

          Romero seems to argue that because Cox allegedly failed
to  perform his duties under the agreement, Romero, in  order  to
obtain  specific performance, was not obligated to pay the entire
down payment, interest on the principal, and property taxes.  The
order  granting  Cox  partial summary judgment  on  the  specific
performance claim required Romero to deposit $41,455.71 to obtain
specific  performance;  that amount included  the  down  payment,
interest,  and property taxes.  Romero asserts that  this  amount
should  have been reduced by costs incurred when Romero  complied
with  the  conditions which should have been undertaken  by  Cox.
But Romero has never proved that he spent any money to remedy the
alleged  defects  in  the property.  He also  provides  no  legal
support for this proposition.
          A buyer must be ready, willing and able to perform when
a  contract  is formed, when a lawsuit is filed, and  during  the
pendency  of  the lawsuit.19  We have held that  the  buyer  must
tender all unpaid money, interest, and costs,20 even if the seller
is  responsible for the contract delay.21  Our case law  has  not
created an exception to this rule for buyers who assert that they
are  entitled to damages.  We decline to do so here, particularly
because Romero has presented no evidence that he spent any  money
curing the alleged defects in the property.
     F.   The  Superior Court Did Not Err in Finding that Cox Did
          Not Breach the Contract.

          Romero asserts that the superior court erred by finding
that Cox did not breach the contract.  Romero also argues that he
relied to his detriment on Coxs promise to perform and that  Coxs
delay in performing prejudiced Romero.
          Cox  testified  at trial that he had  been  willing  to
conclude  the  deal, but Romero kept making excuses  for  why  he
          could not close.  Although Romero testified that he did not close
because  Cox  refused  to  remove  contaminated  soil  from   the
property,  Cox testified that a subsequent purchaser  tested  the
soil  and found no contamination.  The superior court found  that
when  the  testimony  conflicted,  Cox  and  his  witnesses  were
credible,  and Romero was not.  The clear error standard  applies
to  the  courts  findings of fact, particularly  those  based  on
witness credibility.22  Given the trial evidence, it was not clear
error to credit Coxs testimony over Romeros.
          Because the superior court concluded that the delay was
Romeros  fault, Cox did not breach the contract, and  Romero  has
failed to prove detrimental reliance.
     G.   The  Superior Court Did Not Err in Failing To Find that
          the Title Was Unmarketable.

          For  three  of his appellate points, Romero  gives  two
reasons  why he believes that title was unmarketable.  First,  he
argues  that  sewage and contaminated soil on the  property  made
title   unmarketable.    Second,  he  argues   that   title   was
unmarketable  because  the mobile home and garage  encroached  on
public easements.
          We  do not need to reach the question whether title was
marketable; even if it was not, Romero is not entitled to damages
because  he  was  unable to perform his return  promise.   Romero
admitted  in his April 26, 2002 affidavit that he was  unable  to
pay  the  $41,000 needed to close the deal.  Because  Romero  was
unable to pay the purchase price at the time it was demanded,  he
is  not  entitled  to  damages.   According  to  the  Restatement
(Second) of Contracts  244, even a party in total breach will not
be  required  to pay damages if it appears after the breach  that
there  would  have been a total failure by the injured  party  to
perform his return promise.23
     H.   The  Superior Court Did Not Err in Failing To Find that
          Cox Committed Fraud or Applied Duress.

          Romero  argues that fraud is a possible motive  by  Cox
and  requests  a  trial  on his claim that Cox  committed  fraud.
Romero  was permitted at trial to argue that Cox committed fraud,
and  the superior court found that there was no credible evidence
of  fraud  done by Cox.  The court also found that there  was  no
violation  of  good faith and fair dealing by  Mr.  Cox.   Romero
provides  no  record  citations to support  his  claim  that  Cox
committed  fraud or applied duress.  We therefore have  no  basis
for concluding that the superior court erred in finding that Coxs
conduct was not fraudulent or otherwise wrongful.
     I.   It   Was  Error  Not  To  Determine  Whether  Cox   Was
          Responsible for Nursery Stock that Romero Left  on  His
          Property.

          Romero  argues  that the superior court erred  when  it
failed  to  find that Cox was a bailee of Romeros nursery  stock,
and  was therefore liable for its disappearance. Romero testified
at  trial that he was prevented from removing twenty apple  trees
from  Coxs land.  According to the May 23, 2002 court order, Coxs
          attorney was to notify Romero when the snow melted so that Romero
could  remove  any of his property that remained on Coxs  land.24
Romero  testified that Coxs attorney never notified him that  the
snow  had  melted,  and  that when he  later  went  to  view  the
property, the trees were gone.
          This  issue  is not well briefed, but Romero  seems  to
believe  that Cox is responsible for the loss of the  trees,  and
that  he is entitled to their fair value.  Romero testified  that
the  trees were worth between $800 and $1,200.  Cox is  aware  of
the  argument,  as  he  states  in  his  brief,  that  Romero  is
requesting reimbursement for the value of his nursery stock.  Cox
asks  us  to  rely on the trial courts findings.  But  a  careful
review  of  the trial courts findings reveals that the court  did
not  address the apple trees.  Although all conflicting testimony
was  resolved  in Coxs favor, Cox did not testify  about  whether
Romero  was  permitted to remove the apple trees.  In fact,  Coxs
only testimony about the apple trees was that they were still  on
the  property  in  July  2001.  Romeros claim  should  have  been
decided following trial.  We therefore remand for a determination
whether Cox is liable for not returning the apple trees.
IV.  CONCLUSION
          We  REMAND  for a determination whether Cox was  liable
for  not returning the apple trees.  The superior court may  base
its  decision on this claim on the record as it stands, or it may
choose  to  allow the parties to submit additional evidence.   We
otherwise AFFIRM all disputed rulings by the superior court.
_______________________________
     1     Romero  filed  the counterclaim in the state  district
court,  which dismissed the counterclaim because the court lacked
jurisdiction and Romero failed to pay the filing fee.  Romero was
later  permitted  to  file in the superior court  a  counterclaim
asserting the same claims and a more specific prayer for damages.

     2    Romero has consistently argued that he should have been
required to pay only $10,000 to close the deal.

     3     Soules  v. Ramstack, 95 P.3d 933, 93637 (Alaska  2004)
(footnotes omitted).

     4    Id. at 936.

     5     N. Pac. Processors, Inc. v. City & Borough of Yakutat,
113 P.3d 575, 579 (Alaska 2005) (footnote omitted).

     6     N.W.  Cruiseship Assn of Alaska, Inc. v. State, Office
of  Lieutenant  Governor, Div. of Elections, 145  P.3d  573,  576
(Alaska 2006) (citing Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979)).

     7    N. Pac. Processors, Inc., 113 P.3d at 579.

     8    Peterson v. Ek, 93 P.3d 458, 464 n.9 (Alaska 2004).

     9     Lee  v.  State, 141 P.3d 342, 352 n.38  (Alaska  2006)
(citing Peterson, 93 P.3d at 464 n.9).

     10    AS 09.30.070(a).

     11     Zeilinger v. Standard Alaska Petroleum Co., 769  P.2d
436, 436 (Alaska 1989).

     12    Romero also asserts that Cox is estopped from claiming
that Romero will not perform under the terms of the sale-purchase
agreement.  Because Romero admitted in an affidavit that he could
not  pay  $41,000  to close the deal, Cox is  not  estopped  from
arguing that Romero was unable to perform.

     13    Cf. Krossa v. All Alaskan Seafoods, Inc., 37 P.3d 411,
419  (Alaska 2001) (holding that plaintiff in employment law case
may recover in quantum meruit for services rendered).

     14    AS 34.03.330(b)(2).

     15    AS 09.45.090(b) states in part:

               (b)    For   property   to   which   the
          provisions  of AS 34.03 (Uniform  Residential
          Landlord  and  Tenant  Act)  do  not   apply,
          unlawful  holding by force includes  each  of
          the following:
               . . . .
               (2)    when,  following  service  of   a
          written notice to quit,
               . . . .
               (F)  a person in possession continues in
          possession of the premises
               (i)   at  the  expiration  of  the  time
          limited in the lease or agreement under which
          that person holds . . . .
          
          Although  Romero  and Coxs written  agreement  did  not
entitle  Romero to take possession of the property,  the  parties
orally  agreed  that he could move onto the premises  before  the
sale closed.

     16    AS 09.45.090(b)(2)(F)(i) (emphasis added).

     17     Bennett  v.  Weimar, 975 P.2d 691, 699 (Alaska  1999)
(noting  that  parties  may  rely upon  verified  pleadings  when
opposing summary judgment).

     18    Id. at 695.

     19     Foster  v.  Hanni, 841 P.2d 164,  172  (Alaska  1992)
(holding that superior court must determine whether option  owner
was  ready,  willing and able to perform both when  contract  was
formed and when suit was filed and prosecuted).

     20     See,  e.g.,   Lewis v. Lockhart, 379  P.2d  618,  624
(Alaska  1963)  (holding that purchasers  who  were  entitled  to
specific  performance had to pay interest on the purchase  price,
taxes, and other costs).

     21     Dillingham Commercial Co. v. Spears, 641 P.2d  1,  10
(Alaska 1982) (holding that vendor responsible for contract delay
is entitled to purchase price and interest).

     22     Soules, 95 P.3d at 93637 ([T]he trial courts findings
regarding the credibility of the witnesses will be reversed  only
if clearly erroneous.) (citation omitted).

     23    Restatement (Second) of Contracts  244 (1981).

     24     The  writ  of assistance that accompanied  the  order
states  [t]he  Plaintiff  shall be responsible  for  the  return,
storage  or  disposal of any personal property of the  Defendant.
The   order   contains   slightly  self-contradictory   language,
permitting  Cox to dispose of any personal property remaining  on
the  premises, but containing an exception for any items  .  .  .
buried by snow.

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