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Supreme Court
No. 2001-83-Appeal.
(KC 00-831)
731 Airport Associates, LP et al.                                                                    :
v.                                                                                                   :
H & M Realty Associates, LLC by and through                                                          :
its Member, Donald N. Leef.
Present:  Williams, C.J., Lederberg, Bourcier, Flanders, and Goldberg, JJ.
O P I N I O N
PER CURIAM.   This case came before the Supreme Court for oral argument on May 8,
2002, pursuant to an order directing all parties to appear and show cause why the issues raised by
this appeal should not be summarily decided.  After  hearing  the arguments of counsel   and
considering  the  memoranda  of  the  parties,  we  conclude  that  cause  has  not  been  shown.
Accordingly, we shall decide the appeal at this time.
Facts and Travel
The plaintiff, 731 Airport Associates, LP, and 747 Airport Associates, LP, through their
general partner, Jason’s Realty Corp. (collectively referred to as  plaintiff or buyer), filed an
action against the defendant, H & M Realty Associates, LLC by and through its Member, Donald
N. Leef   (defendant or seller), asserting a claim for specific performance and breach of contract
arising from an aborted sale  of property owned by seller and located on Airport Road and
Roseland Avenue  (property) in the  City of Warwick.    This dispute arose  from negotiations
between the parties that commenced in March 2000 and terminated several months later by the
sale of the property to a third party.   In May 2000, buyer submitted an offer to purchase the
property for                                                                                         $1,060,000 and defendant, through Donald N.  Leef, submitted a counteroffer of
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$1,100,000, both of which were rejected.    The trial justice found that further negotiations
between the parties resulted in an  oral agreement to sell the property.   However, this agreement
was not confirmed by a writing sufficient to bind the parties.   The defendant’s counsel, Nadeau
& Simmons (Nadeau), through attorney James L. Truslow (Truslow), undertook the preparation
of a complex purchase and sale agreement that underwent several amendments, culminating in
two duplicate originals of a “final agreement ” in October 2000.   Although characterized as final,
buyer has conceded further changes were necessary. The agreement was forwarded to buyer by
Truslow and  included instructions for buyer to sign and return the documents at plaintiff’s
earliest convenience.   However, the cover letter did not contain reservation  language declaring
that the agreement was subject to approval by   seller, a limitation that had been included in the
previous drafts.   At some point between October 6 and October 10, 2000, buyer submitted a
check to Nadeau in the amount of $5,000 that was accepted by  seller, but was neither deposited
nor cashed.   On October 13, 2000, buyer appeared at Nadeau’s offices ready and willing to close
the transaction, but seller refused to sign any of the transactional documents claiming that he was
not bound to perform and, in the event that a better offer was made, he intended to accept the
higher offer.   Negotiations continued between buyer and seller through October, although the
deposit check in the amount of $5,000 was returned to buyer on October 20, 2000.   The seller
entered into a purchase and sale agreement with the Rhode Island Airport Corporation for the
sale price of $1,100,000 on November 29, 2000.
On November  8,  2000,  buyer commenced this action for  specific performance and
recorded a notice of lis pendens in the land evidence records of the City of Warwick.   The seller
filed a motion to quash the lis pendens and asserted a counterclaim for slander of title.   At the
conclusion of the plaintiff’s case  in a nonjury trial, the trial justice granted seller’s motion to
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dismiss pursuant to Rule 52 of the Superior Court Rules of Civil Procedure.   The judgment and
order quashing the lis pendens was entered in the Superior Court on January 18, 2001.   The
buyer appealed and declared in the notice of   appeal that a copy of the transcript would be
ordered.   However, an amended notice of appeal indicating that the transcript would not be
ordered subsequently was filed.
On appeal, buyer assigns as error the findings of the trial justice that no binding contract
existed between the parties and that Truslow lacked apparent authority to contract on behalf of
seller.   The seller maintains that the trial justice did not err and further argues that buyer’s failure
to comply with the Supreme Court Rules of Appellate Procedure by failing to provide the trial
transcript is fatal to buyer’s appeal.
Failure to Order Transcript
The seller argues that plaintiff’s failure to order the trial transcript precludes a meaningful
review of the testimony upon which the trial justice based her decision.   The plaintiff maintains
that it was not required to provide a transcript because this appeal is limited to questions of law.
The plaintiff has indicated in its  filings with this Court that buyer “is not challenging the trial
court’s  discretionary  factual  findings.”  Rather,  this  appeal  is  limited  to                         “the  trial  court’s
application of the pertinent law to those facts.”     The defendant suggests that in the absence of a
transcript it is impossible for this Court to determine whether the trial justice overlooked or
misconceived the evidence or whether  she applied the correct rule of law to the facts as she
found them.
The deliberate decision to prosecute an appeal without providing the Court  with a
transcript of the proceedings in the trial court is risky business.   Unless the appeal is limited to a
challenge to rulings of law  that appear sufficiently on the record and the party accepts the
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findings of the trial justice as correct, the appeal must fail.   DePetrillo v. Coffey, 118 R.I. 519,
521 n.1, 376 A.2d 317, 318 n.1 (1977) (citing Sormanti v. Deacutis, 77 R.I. 507, 511, 77 A.2d
919,  922  (1951)).    In this case, the trial justice found that no enforceable contract existed
between the parties  and that Truslow did not have apparent authority to bind the seller to a
transaction with plaintiff.   She also found that the parties specifically waived executing a letter of
intent that included the terms of the sale.   Although several draft agreements containing the
essential terms of the sale were prepared, the trial justice concluded that seller intended only to
be bound by an executed purchase and sales agreement and never agreed to the transaction  in
writing.   On appeal, buyer challenges these conclusions and alleges the trial justice misapplied
the law to the facts as she found them.   The bench decision in this case is detailed and lengthy
and encompasses twenty-five transcript pages.  In light of plaintiff’s representation that it accepts
the findings of fact by the trial justice, we are satisfied that the appeal may go forward.
Apparent Authority
The buyer argues that Truslow possessed the apparent authority   to bind the seller to a
contract that buyer claims existed between the parties.   Apparent authority to contract on behalf
of a principal “arises from the principal’s manifestation of such authority to the [third party].”
Menard & Co. Masonry Building Contractors v. Marshall Building Systems, Inc., 539 A.2d 523,
526 (R.I. 1988).   Such apparent authority    can come from “indicia of authority given by the
principal to the agent” and does not have to be direct communication to the third person.   Id.
Additionally, the third party with whom the agent is dealing must “believe that the agent has the
authority to bind its principal to the contract.”   Id.   We are satisfied that based upon the findings
of the trial justice, seller did not vest his attorney with apparent authority sufficient to bind him
to an agreement that seller never signed. The trial justice specifically noted that buyer and seller
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were represented by experienced and sophisticated businessmen who were continually engaged
in negotiations relative to the sale of this parcel, notwithstanding the oral agreement, and, further,
that the parties specifically waived the execution of a letter of intent.   Additionally, from the
language of Truslow’s cover letters to buyer,  the trial justice found  that the agreement was
subject to seller’s approval.   The plaintiff has failed to demonstrate that buyer’s subjective belief
that Truslow was vested with authority to bind his client to the purchase and sales agreement was
reasonable. The trial justice found that Truslow’s role was merely to draft the agreement and not
to engage in negotiations with the parties.   Further, the fact that buyer’s representative directly
communicated to seller by e-mail and engaged in further negotiations after the so-called final
agreement was delivered to buyer demonstrates, as the trial justice found, that seller’s approval
was necessary for execution of the agreement. Accordingly, we are satisfied that the trial justice
did not err in concluding that Truslow lacked apparent authority to bind the seller and that seller
did not intend to be bound absent an executed contract.
Statute of Frauds
The plaintiff submits to this Court that the trial justice erred when she found that no
enforceable agreement existed between the parties and that writings prepared by defendant and
defendant’s counsel did not satisfy the statute of frauds.   The plaintiff alleges that defendant’s
oral agreement to the essential terms of the transaction followed by communications from
defendant’s attorney and defendant’s own e-mail transmission to a representative of plaintiff
satisfies the statute of frauds.
General Laws 1956 § 9-1-4, Rhode Island’s statute of frauds, provides in relevant part:
“No action shall be brought:
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(1)    Whereby to charge any person upon any contract for the
sale of lands, tenements, or hereditaments, or the making of
any lease thereof for a longer term than one year;
(6)                                                                                                    * * * unless the promise or agreement upon which the
action  shall  be  brought,  or  some  note  or  memorandum
thereof, shall be in writing, and signed by the party to be
charged therewith, or by some other person by him or her
thereunto lawfully authorized.”
The buyer argues that the duplicate originals of the so-called “final agreement” forwarded
to plaintiff from Truslow and the cover letters that accompanied  Truslow’s communications
signify the seller’s intent to be bound by   the agreement. The trial justice found that no writing
from Truslow suggested that seller agreed to the terms of the sale or intended to be bound absent
seller’s signature.   She further found that the amendments to the draft agreements, although
relatively minor, “reveal the complexity of the transaction and explain why the terms needed to
be reduced to writing. ” A contract exists sufficient to satisfy the statute of frauds “when each
party has manifested an objective intent to promise or be bound.”   UXB Sand & Gravel, Inc. v.
Rosenfeld Concrete Corp., 641 A.2d 75, 79 (R.I. 1994).  Significantly, the trial justice concluded
that buyer did not forward an executed agreement to Truslow,  that the purchase and sales
agreement was not signed by either party, that a  deposit of  $5,000 was delivered to seller but
never deposited, that no closing date was ever agreed upon  by the parties and certain items that
would have been required before the closing never were provided to buyer.   Accordingly, the
trial justice concluded that the parties reached a preliminary oral agreement but that certain terms
remained disputed and the agreement was not memorialized by a writing sufficient to overcome
the statute of frauds.  We discern no error in this holding.
It is well settled that a contract for the sale of land need not be in writing to satisfy the
statute of frauds as long as there is a memorandum that contains “the substance of the contract or
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agreement,” but need not include all of the particulars.   Greensleeves, Inc. v. Smiley, 694 A.2d
714, 716 (R.I. 1997) (quoting Durepo v. May, 73 R.I. 71, 76, 54 A.2d 15, 18-19 (1947)).   The
trial justice found that seller never agreed to the terms of the contract and, in fact, refused to do
so apparently aware that “a third party might offer him a more attractive deal.” Thus, accepting
these  findings  as  true,  as  we  must,  we  are  satisfied  that  this  transaction  remained  in  the
negotiation stage.   Accordingly, we conclude that the trial justice did not err in finding that there
was no meeting of the minds in this case and that plaintiff failed to prove that seller manifested
an objective intent to be bound in the absence of an executed written agreement.
Finally, the plaintiff alleges that an e-mail message from seller to buyer’s representative,
apparently in response to further negotiations by the parties in which seller declares that buyer is
“changing the deal your dad and I had * * *,” does not amount to a writing sufficient to satisfy
the statute of frauds.   Indeed, the trial justice determined that this e-mail was evidence that the
parties did not have a binding agreement, but rather a transaction “that evolved and evolved and
changed and changed, and was never finalized * * *.”  We agree with this finding and discern  no
error on the part of the trial justice in reaching this conclusion.
Conclusion
For the reasons stated herein, the buyer’s appeal is denied and dismissed and the Superior
Court’s judgment is affirmed.   The papers in this case may be remanded to the Superior Court.
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COVER SHEET
TITLE OF CASE:            731 Airport Associates, LP et al. v. H & M Realty
                          Associates, LLC by and through its Member, Donald N. Leef.
DOCKET NO:                2001-83-Appeal.
COURT:                    Supreme
DATE OPINION FILED:       June 18, 2002
Appeal from
SOURCE OF APPEAL:         Superior                                                           County: Kent
JUDGE FROM OTHER COURT:   Vogel, J.
JUSTICES:                 Williams, C.J., Lederberg, Bourcier, Flanders, and Goldberg, JJ.
Not Participating
Dissenting
WRITTEN BY:               Per Curiam
ATTORNEYS:                Robert D. Wieck/Denean M. Russo
For Plaintiff
ATTORNEYS:                Rajaram Suryanarayan
For Defendant
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