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Shirley v. Ficcarotta

The plaintiff waived his right to a default judgment by not raising the issue prior to the hearing.

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This is an appeal of a final judgment in favor of Phyllis Ficcarrotta denying Russell Shirley’s claims for specific performance, breach of contract, deceit in the sale of land, and attorneys’ fees based on a contract for the sale of land. The record shows that on August 21, 2005, the parties entered into a purchase and sales agreement whereby Ficarrotta agreed to sell Shirley 40 acres of property for the sum of $1,140,000. The contract provided that the sale was to close on January 7, 2006 and that time was of the essence. A special stipulation to the contract, executed on the same day as the contract, specified that the buyer would close within 30 days of completion of the due diligence time and that the buyer had the right to extend the closing date for 30 days upon payment to the seller of the sum of $5,000 for each thirty days. On November 13, 2005, the parties entered into an amendment to the contract extending the closing date to January 16, 2006 and reducing the sale price to $900,000. This amendment also indicated that $5,000 in earnest money was paid to the seller.

The evidence clearly shows that the transaction did not close by January 16, 2006 and that no written extension of the closing date was executed by the parties. On February 2, 2006, Ficcarotta informed Shirley that she would not sell the property to him as a result of the expired contract. Four days later, Shirley filed the present suit. Ficcarotta was served with the complaint on February 9, 2006, but failed to file a responsive pleading and was in default at the time of the specific performance hearing in this case. At the hearing, the trial court denied Shirley’s claim for specific performance based on the contract’s expiration. The court denied the remaining counts of the complaint as moot. We find no error and affirm the trial court’s order.

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