HASELTON, P.J.
Plaintiff Butler Block, LLC (Butler Block) appeals, assigning error to the trial court's allowance of summary judgment in favor of defendant Tri-County Metropolitan Transportation District of Oregon (TriMet). On appeal, Butler Block raises a single assignment of error, contending that the trial court erred in granting summary judgment to TriMet because there are issues of material fact as to whether TriMet anticipatorily breached the parties' development agreement
The operative facts that are ultimately material to our analysis and disposition are uncontroverted. In November 2004, the parties entered into a lengthy and detailed "Disposition and Development Agreement" (the agreement). In general terms, TriMet agreed to convey a parcel of land in Portland—that is, "the site"—to Butler Block
Three aspects of the agreement are especially pertinent to the issues on appeal.
First, the agreement contains conditions precedent to Butler Block's obligation to purchase the site and TriMet's obligation to convey it. Specifically, section 2.03(3) provides that Butler Block's obligation to purchase the site is subject to "obtaining financing (which may be through debt and/or equity sources) for the construction of the Developer Improvements on a basis and on terms that are satisfactory to [Butler Block]." Relatedly, section 2.04(3) provides that TriMet's obligation to convey the site is subject to its receipt of financial information from Butler Block that is "reasonably satisfactory to demonstrate to TriMet that the financial capacity of the participants in the development entity is sufficient to carry out the financial obligations of [Butler Block] and to construct the Developer Improvements and the Project."
Second, the agreement provides that, under certain circumstances, each party has the right to terminate the agreement due to concerns related to financing. Section 5.07 provides, in part, that Butler Block may terminate the agreement "in the event that prior to the conveyance of title to the Site, the conditions precedent as set forth in Section 2.03 shall not have been satisfied or waived to the satisfaction of [Butler Block.]" In other words, if, before the site is conveyed, Butler Block cannot obtain debt or equity financing on terms that it finds satisfactory, it may terminate the agreement. Relatedly, under section 5.08(4), TriMet may terminate the agreement "[i]n the event that prior to the conveyance of title to the Site," Butler Block "does not submit evidence that it has the necessary equity capital and mortgage financing, in a satisfactory form to undertake and complete the obligations of [Butler Block] under this Agreement and such failure is not cured within the applicable period for cure under this Agreement[.]"
(Emphasis added.)
After its execution, the parties amended the agreement three times. Only the third amendment, which was executed in January 2007, is pertinent to the issues on appeal. That amendment extended the closing date by nine months to February 10, 2008. TriMet granted that extension under section 6.04 of the agreement because of the delay caused by a neighborhood association's appeal of the project's design.
Then, on November 1, 2007, Butler Block sent a letter to TriMet, which precipitated the chain of events culminating in this litigation. In that letter, Butler Block reaffirmed its commitment to complete the project but requested an 18-month extension under section 6.04 because, it asserted, due to circumstances beyond its control, it was unable to obtain reasonable construction financing. Specifically, the letter stated, in part:
In its November 14 response, TriMet indicated that, contrary to Butler Block's understanding, it "d[id] not understand Section 6.04 to encompass changed market conditions or terms of financing" and did not understand that the circumstances to which Butler Block referred "arose within the last 30 days." However, TriMet stated:
In particular, TriMet requested that Butler Block submit various financial documents before the meeting, including "[t]he most currently `audited' or `reviewed' financial statements (balance sheet and operating statement) of Butler Block LLC and its members" and "[t]he most current internally prepared financial statements for the same entities, if later than audited or reviewed statements."
On December 7, the parties met to discuss a possible extension. In a letter dated December 11, TriMet reiterated its position: "[A]lthough TriMet is prepared to consider a request for an extension on receipt of the requested [financial] information, it rejects your client's assertion that any extension is required by Section 6.04 or any other section of the [agreement], as amended."
On January 9, 2008, TriMet sent Butler Block notice that (1) pursuant to section 2.04(4) of the agreement, before TriMet was obligated to convey the site, Butler Block was obligated to provide "evidence, reasonably satisfactory to TriMet, that construction financing for the Developer Improvements has been or can be obtained" by Butler Block; and (2) pursuant to section 5.08(4), "TriMet may, at its option, terminate [Butler Block's] rights in this Agreement" if Butler Block does not submit the required documentation. According to TriMet, it had not received such information. Consequently, TriMet stated in conclusion:
(Underscoring in original.)
Despite TriMet's January 9 notice, negotiations continued concerning a meaningful extension pursuant to section 6.04.
As the February 29 closing date approached, the parties' negotiations focused on a possible two- or three-year extension, which would have been conditioned on (1) a required commitment of money by Butler Block each time the close of escrow was
In all events, at approximately 4:51 p.m. on Friday, February 29—the date set for closing—Butler Block notified TriMet that it had obtained the necessary "financing from M. David Paul Development LLC and its affiliate companies (`MDPD')." Specifically, Butler Block's letter stated, in part:
In addition, Butler Block's letter indicated that various project-related documents were available for review at its attorney's office. However, those documents did not include the financial statements that TriMet had previously requested. See 242 Or.App. at 401-02, 255 P.3d at 669 (describing requested financial documentation).
Thereafter, on the morning of March 3, David Auxier, TriMet's Chief Financial Officer, reviewed the February 29 letters. He concluded that "the documents provided were not adequate to determine that construction financing had been or could be obtained because the letters" failed to include (1) "independent supporting evidence, including current audited financial statements, that M. David Paul Development LLC and its affiliate companies actually had the financial capacity to provide $25 million and any additional infusion of equity or loans necessary to complete the Butler Block project"; and (2) "information to understand under what terms the $25 million plus additional equity
Later that same day, TriMet filed an action for declaratory relief against Butler Block in the United States District Court for the District of Oregon. In that action, TriMet sought, inter alia, declarations that it no longer had obligations under the agreement and was entitled to terminate it.
In April 2008, Butler Block filed this action in state court, alleging claims for breach of contract and breach of the implied obligation of good faith and fair dealing and seeking several related declarations. We describe the complaint in some detail because, although the issues on appeal relate to the claim for breach of contract, our analysis of those issues and our disposition are ultimately informed by an overall understanding of all of the alleged claims.
We begin with Butler Block's first claim for relief—that is, its claim for breach of contract. As pleaded, the gravamen of the claim is that
Several allegations followed, each of which alleged an independent and alternative reason for why TriMet was not entitled to terminate the agreement as provided in the January 9 notice—that is, to terminate the agreement unless Butler Block provided the requested financial documentation.
Butler Block also raised closely related claims for declaratory relief. In its third claim for relief, Butler Block sought a declaration that it had "provided sufficient financial documentation required by [sections] 2.04(4) and 5.08(4) of the [agreement]." And, in its sixth claim for relief, Butler Block sought a declaration that "TriMet was obligated by [section] 6.04 of the [agreement] to extend the closing date until such time as the financial and real estate market conditions are favorable for construction of the project."
As noted, in its second claim for relief, Butler Block also alleged that TriMet had breached the implied obligation of good faith and fair dealing in five respects. Specifically, Butler Block alleged that (1) "TriMet did not disclose to Butler Block its historical relationship with and commitments to the [neighborhood association that had objected to the design review] regarding the * * * project"; (2) "TriMet is unwilling to fulfill its obligations to Butler Block" under the agreement "because of pressures on TriMet from the [neighborhood association] and adjoining Site property owners for the * * * project to not go forward"; (3) "TriMet refused to appropriately
TriMet moved for summary judgment. As pertinent to the issues on appeal, the parties' competing contentions centered on two overarching issues—viz., (a) whether Butler Block was entitled to an extension under section 6.04 because of changes in the real estate market and its inability to obtain construction financing; and (b) whether TriMet's conduct constituted an anticipatory repudiation of the agreement.
As noted, Butler Block's complaint identified the actionable conduct, for purposes of its breach of contract claim, as TriMet's federal filing on March 3 coupled with its January 9 notice of intent to terminate if Butler Block did not provide the requested financial information. See 242 Or.App. at 407, 255 P.3d at 672-73. Nonetheless, in resisting summary judgment, Butler Block broadened its position by pointing to additional conduct by TriMet that purportedly constituted an anticipatory repudiation. Specifically, and of critical importance on appeal, Butler Block contended that, in determining whether an issue of fact existed as to whether TriMet anticipatorily repudiated the agreement, the court should examine the circumstances that existed between the parties over the five-month period between October 2007 and March 2008. Consistently with that contention, Butler Block asserted, inter alia, that TriMet's initial refusal—presumably in November 2007—to grant an extension under section 6.04 "by itself, amounts to [an] anticipatory repudiation."
The court granted TriMet's summary judgment motion. Initially, the court issued a letter opinion in which it reasoned that "[TriMet] did not breach the agreement" because "there is nothing in the record that supports the theory of anticipatory repudiation" and, further, because "[TriMet] acted prudently in requesting the financial documents [that Butler Block] had refused to provide * * *." Significantly, in a later e-mail exchange with the parties,
Ultimately, the trial court entered a general judgment, dismissing the claims for breach of contract and breach of the implied obligation of good faith and fair dealing. Further, as pertinent here, the court declared that (1) "[Butler Block] did not provide to TriMet the financial documentation required by [sections] 2.04(4) and 5.08(4) of the parties' [agreement]" and (2) "TriMet was not obligated under [section] 6.04 of the [agreement] to extend the date for close of escrow." Butler Block appeals.
On appeal, Butler Block raises a single assignment of error:
(Emphasis omitted.) As so framed, the sole object of that assignment is the trial court's disposition of the breach of contract claim, the only claim that was predicated on allegations of anticipatory repudiation.
In support of its assignment of error, Butler Block raises two interrelated contentions. First, Butler Block contends that section 6.04 of the parties' agreement "unambiguously provides for an extension of time to perform for any delays outside the control of the parties," including the changes in the real estate market and its inability to obtain construction financing. (Emphasis in original.) Second, Butler Block contends that the trial court erred in granting TriMet summary judgment on the breach of contract claim either because TriMet anticipatorily breached the agreement, as a matter of law, "by positively and unequivocally stating on several occasions that it would not recognize the extension," or, alternatively, because there is, at least, a genuine issue of material fact as to whether TriMet anticipatorily breached the agreement so as to preclude summary judgment.
Conversely, TriMet remonstrates that section 6.04 of the agreement "does not compel extensions of performance to accommodate financing-related delays" and that, if Butler Block was unable to obtain satisfactory financing, it had the option under other sections to terminate the agreement. (Boldface and capitalization omitted.) Further, TriMet contends that it did not repudiate the agreement, as a matter of law, because, inter alia, although TriMet told Butler Block in November 2007 that it did not interpret section 6.04 to require an extension under the circumstances, it agreed to and, in fact, met to discuss Butler Block's requested extension. Invoking Mohr v. Lear, 239 Or. 41, 49, 395 P.2d 117 (1964), TriMet asserts that such conduct was not a "positive, definite, absolute, unconditional and unequivocal" refusal to perform its contractual obligations—that is, its conduct was not, as a matter of law, an anticipatory repudiation of its contractual obligations.
We need not resolve Butler Block's first contention concerning whether TriMet was obligated under section 6.04 to grant an extension. That is so because, even assuming
A party repudiates a contract when its conduct evinces a fixed purpose not to perform the contract. As the court stated in Swick v. Mueller et ux., 193 Or. 668, 676, 238 P.2d 717 (1951), "[t]he general rule is that before a party to an executory contract may be said to have anticipatorily breached the same he must refuse by acts or deeds [to] perform his obligations under the contract positively, unconditionally, unequivocally, distinctly and absolutely."
In resolving contract-related issues, Oregon courts adhere to an objective theory under which objective manifestations of intent control rather than the parties' uncommunicated subjective understanding. See Sollars v. City of Milwaukie, 222 Or.App. 384, 388, 193 P.3d 75 (2008), rev. den., 346 Or. 184, 206 P.3d 1058 (2009). Accordingly, the dispositive issue in this case is whether TriMet objectively manifested—through its conduct—that it unequivocally and absolutely would not proceed in accordance with its obligations under the agreement.
On appeal, the initial focus of Butler Block's contention that TriMet unequivocally and absolutely refused to grant an extension under section 6.04 is on a series of statements by TriMet after Butler Block requested an extension on November 1, 2007. Specifically, in its opening brief on appeal, Butler Block posits that the following events evinced or constituted an anticipatory repudiation.
(Record citations omitted; brackets and omission in original.) In its reply brief, Butler Block reiterates its reliance on TriMet's statement in its November 14, 2007, response to Butler Block's request for an extension that "TriMet does not understand Section 6.04 to encompass changed market conditions or terms of financing[.]"
Butler Block's reliance on that statement is unavailing because no reasonable person could understand that statement in context to express an "absolute, unconditional and unequivocal," Mohr, 239 Or. at 49, 395 P.2d 117, intent not to perform by refusing to grant TriMet an extension. Although TriMet did, in fact, make that statement, TriMet said much more. See 242 Or.App. at 400-02, 255 P.3d at 668-69 (quoting the November 14 letter). Significantly, TriMet indicated that
Similarly, TriMet's December 11 statement, in context, was simply a reiteration of its understanding that section 6.04 did not require an extension. Specifically, as we previously described, 242 Or.App. at 401-02, 255 P.3d at 669, TriMet stated, "[A]lthough TriMet is prepared to consider a request for an extension on receipt of the requested [financial] information, it rejects your client's assertion that any extension is required by Section 6.04 or any other section of the [agreement], as amended." (Emphasis added.) Nevertheless, even though, as the trial court declared, Butler Block did not provide TriMet with the financial documentation required under the agreement,
To the extent that Butler Block relies on the January 9 notice as somehow evincing an intent by TriMet not to grant an extension in all events, that notice is immaterial to any such purported intent. As previously described, 242 Or.App. at 401-02, 255 P.3d at 669-70, that notice did not refer to section 6.04. Instead, it pertained solely to Butler Block's obligation to provide the requested documentation under section 2.04(4) and TriMet's concomitant right to terminate the agreement under section 5.08(4) if Butler Block failed to do so. Further, the trial court declared, with respect to TriMet's requests for financial information, that "[Butler Block] did not provide to TriMet the financial documentation required by [sections] 2.04(4) and 5.08(4) of the parties' [agreement]." (Emphasis added.) We understand that declaration—which Butler Block does not challenge on appeal—to encompass a determination that TriMet's request for information in the January 9 notice completely comported with the requisites of sections 2.04(4) and 5.08(4)—that is, that TriMet was contractually entitled to demand such information and to indicate that it would invoke the contractually prescribed remedies for noncompliance. That conduct, in conformity with TriMet's rights under the contract, is not probative of any anticipatory repudiation.
Finally, Butler Block's cursory reference to TriMet's demand "that Butler Block waive all future rights to an extension under Section 6.04 as a condition to TriMet granting any further extension of time" is undeveloped. See Beall Transport Equipment Co. v. Southern Pacific, 186 Or.App. 696, 700-01 n. 2, 64 P.3d 1193, adh'd to as clarified on recons., 187 Or.App. 472, 68 P.3d 259 (2003) (noting generally that "it is not this court's function to speculate as to what a party's argument might be" or "to make or develop a party's argument when that party has not endeavored to do so itself"). Accordingly, we decline to address it further.
For those reasons, as a matter of law, in the circumstances presented here, TriMet did not anticipatorily repudiate the agreement. Thus, the trial court properly granted TriMet summary judgment on Butler Block's breach of contract claim. Accordingly, we affirm.
Affirmed.
Further, notwithstanding Butler Block's efforts to shoehorn its sixth claim for relief—that is, the claim that sought declaratory relief as to TriMet's purported obligation to grant an extension under section 6.04—within its assignment of error, that claim does not fall within the purview of that assignment. That is so because the assignment of error explicitly pertains only to TriMet's purported anticipatory repudiation, which, in turn, pertains solely to Butler Block's breach of contract claim. The sixth claim for relief is not similarly implicated because Butler Block's purported entitlement to an extension pursuant to section 6.04 exists (or, as the trial court concluded, does not exist) regardless of any alleged anticipatory repudiation by TriMet; bluntly, the latter is immaterial to the adjudication of the former. Thus, as framed by Butler Block's assignment of error, the trial court's ruling as to the sixth claim is not presented for our review.