Brody Properties, Inc. v. Messer
Brody Properties, Inc. v. Messer
Opinion of the Court
Brody Properties, Inc. appeals from an order dismissing its specific performance action to enforce a residential sales contract. Because the parties now agree that this matter should be submitted to arbitration, we reverse and remand for reinstatement of the action and submission of this matter to arbitration.
On February 1, 2005, Brody contracted to purchase the home of decedent, Carl Messer II (Carl II). The sellers were Carl II’s surviving spouse, Barbara, the life estate holder, and Carl II’s sons and heirs, Carl Messer III (Carl III) and Anthony C. Giovanni (Giovanni), and Carl II’s minor granddaughter, Ann Mary Messer (Ann), the remaindermen. Each of the adult sellers executed the sales contract; Ron Now-ka, Ann’s father, signed it on her behalf. The contract includes an arbitration clause in which the parties agreed that “[a]ll controversies, claims and other matters in question arising out of or relating to this transaction or this Contract or its breach will be settled [where mediation fails] ... through neutral binding arbitration.”
On February 17, 2006, Brody brought suit to compel performance of the contract. Ann moved to dismiss the complaint claiming, as pertinent here, that the contract was unenforceable because it was executed by her father and because it had not been approved by the court presiding over an earlier foreclosure action involving this same property. Barbara also sought dismissal on this ground. Carl III and Giovanni moved to compel arbitration. Concluding that the instant specific performance action was ancillary to the foreclosure action in which a guardian ad litem for Ann had been appointed, the action was dismissed:
This specific performance action is ancillary to the appointment of the Guardian Ad Litem in Case # 02-6507 CA 20, and thus Court approval should have been obtained prior to signing a contract to sell the real property.
We find no record support for the conclusion that the instant action for specific performance was ancillary to the earlier mortgage foreclosure action and see no reason why the sales contract may not be approved, if appropriate, by the court in
Accordingly, the order of dismissal is reversed and this matter remanded for reinstatement and submission to arbitration.
. On September 13, 2006, the trial court appointed Scott Sheftall, Esq., as guardian ad litem in the instant case. Inexplicably, notwithstanding that appointment, on November 7, 2006, the court dismissed Brody’s specific performance action referring to the non participation of the guardian ad litem from the earlier foreclosure action. Ann's father Now-ka did not appeal the order appointing Shef-tall.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.