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Wallace Real Estate Investment Inc. v. Groves1/31/1994
rror to the trial court's refusal to admit a December 1991 offer made by a third party on adjacent property. We need not consider this issue because Wallace does not cite any legal authority or argue any recognizable legal theory in support thereof. View Ridge
Park Assocs. v. Mountlake Terrace, 67 Wash. App. 588, 602, 839 P.2d 343 (1992), review denied, 121 Wash. 2d 1016 (1993).
IV
The Parties' Performance at Closing
Wallace next assigns error to the trial court's conclusion that the sellers failed to concurrently perform under the purchase and sale agreement.
First, Wallace argues that his December 13, 1990, letter did not constitute an anticipatory breach, but merely stated his desire to simultaneously close on all of his purchases and was a request for another closing extension.
A party's performance is excused when the other party repudiates the contract. Repudiation is a question of fact." An intent to repudiate may be expressly asserted or circumstantially manifested by conduct". CKP, Inc. v. GRS Constr. Co., 63 Wash. App. 601, 620, 821 P.2d 63 (1991) (quoting Hemisphere Loggers & Contractors, Inc. v. Everett Plywood Corp., 7 Wash. App. 232, 234, 499 P.2d 85, review denied, 81 Wash. 2d 1007 (1972)), review denied, 120 Wash. 2d 1010 (1992). In CKP, Inc., the court stated:
An anticipatory breach occurs when one of the parties to a bilateral contract either expressly or impliedly repudiates the contract prior to the time for performance. The law requires a positive statement or action indicating distinctly and unequivocally
that the repudiating party will not substantially perform his contractual obligations.
63 Wash. App. at 620.
Wallace's December 13, 1990, letter explaining that he could not close on the agreed-to date constitutes substantial evidence supporting the trial court's finding of anticipatory repudiation. Thus, the trial court did not err in finding that Wallace had anticipatorily repudiated on December 13, 1990.
In light of our conclusion that Wallace anticipatorily breached, we need not address Wallace's contention that the sellers did not perform as required on December 17, 1990. Wallace's anticipatory breach relieved the sellers of any duty to perform and to do so would have been a useless act.
As prevailing parties, the sellers are entitled to their attorney's fees pursuant to the attorney's fees provision of the original purchase and sale agreement.
Affirmed.
Disposition
Holding that the liquidated damages provision in the agreement was valid and that the assignee had repudiated the contract, the court affirms the judgment.
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