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Foundation Property Investments, LLC v. CTP

May 25, 2007

FOUNDATION PROPERTY INVESTMENTS, LLC, APPELLEE,
v.
CTP, LLC, APPELLANT.



Appeal from Butler District Court; MICHAEL E. WARD, judge.

SYLLABUS BY THE COURT

1. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

2. When there is no factual dispute, appellate review of an order regarding summary judgment is de novo.

3. In a conflict of law situation, the determination of which state's law applies is a question of law over which this court has unlimited review.

4. In determining which state's law applies to a contractual dispute, Kansas follows the Restatement First of the Conflict of Laws. Accordingly, Kansas applies the lex loci contractus doctrine and applies the law of the state where the contract is made. A contract is made where the last act necessary for its formation occurs. Generally, a party seeking to apply the law of a jurisdiction other than the forum has the burden to present sufficient facts to show that other law should apply.

5. Promissory notes and mortgages are contracts between the parties, and ordinary rules of construction applicable to contracts apply to them. The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. Regardless of the construction given a written contract by a trial court, an appellate court may construe a written contract and determine its legal effect.

6. The general rule is that when a mortgage contains an acceleration clause relating to default of a required payment, the mortgagee is entitled because of such default to enforce the acceleration clause at once according to its terms. Like other contract rights, however, an acceleration clause may be waived. A waiver is the intentional relinquishment of a known right, and intention may be inferred from conduct.

7. If a vendor in a contract for the sale of land, by which time is made of the essence, repeatedly receives payments after the date when they are due, and thereby establishes a course of dealing inconsistent with insistence on the strict performance of the contract, the vendor cannot thereafter declare a forfeiture for a failure to make a payment promptly, unless the vendor has given notice to the vendee of his or her intention to require prompt payment in the future.

8. When the right to declare a forfeiture under such a contract exists, the party entitled thereto must assert his or her right promptly, and his or her acts relating thereto must be unequivocal and inconsistent with the continuance of the contract, or he or she will be held to have waived such right.

The opinion of the court was delivered by: Green, J.

Reversed and remanded with directions.

Before McANANY, P.J., GREEN and CAPLINGER, JJ.

CTP, LLC (CTP) appeals from a summary judgment granted in favor of Foundation Property Investments, LLC (Foundation) in Foundation's action to foreclose a promissory note between it and CTP. This litigation arises out of a loan made by Foundation to CTP. CTP signed a promissory note for the loan. After receiving 10 late payments from CTP, Foundation accelerated the note and sued to recover the entire balance owed on the note. The ultimate question is whether Foundation waived its right to accelerate the promissory note by accepting late payments from CTP. Because we determine that Foundation waived the condition of prompt payment, we reverse and remand to the trial court with instructions to enter judgment in favor of CTP.

In April 2004, CTP, an Iowa limited liability corporation, purchased a truck stop in South Hutchinson, Kansas. As part of the transaction, CTP borrowed $96,000 from Foundation, a Kansas limited liability corporation, to purchase the truck stop. The loan was evidenced by a promissory note, which provided:

"FOR VALUE RECEIVED, the undersigned [CTP] promises to pay to the order of Foundation Property Investments, L.L.C., the sum of Ninety Six Thousand Dollars ($96,000.00) with interest thereon from April 26, 2004, payable monthly at the rate of Five and Three Quarters Percent (5.75%) per annum as follows:

"Six Hundred Seventy Three Dollars and Fifty Four Cents ($673.54) including interest, on or before the 1st day of June, 2004, and Six Hundred Seventy Three Dollars and Fifty Four Cents ($673.54) including interest, on or before the 1st day of each and every month thereafter until June 1, 2009 when all sums due hereunder are due and payable in full.

"Interest shall first be deducted from the payment and any balance shall be applied on principal.

"Principal and interest not paid when due shall draw interest at the rate of twelve percent (12%) per annum. Upon default in payment of any interest, or any installment of principal, the whole amount then unpaid shall become immediately due and payable at the option of the holder without notice. ...


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