## Facts

- William Waddy IV contracted to buy approximately 30 acres from Denver and Christine Riggleman for $750 per acre, with closing “on or before” September 5, 2002.
- The contract required the sellers to convey fee simple title by general warranty deed “free and clear of all liens and encumbrances,” and to cure any title defects before closing at their expense, including costs for releases and attorney fees.
- The parties amended the agreement to increase the acreage (ultimately 48 acres) and extend the closing date by 15 days.
- The property was encumbered by deeds of trust; releases were required to deliver clear title.
- An attorney involved in preparing the agreement was expected to obtain the releases but did not secure them by the extended closing date.
- The Rigglemans refused to proceed with the sale, and later sold a larger 96-acre tract to C. Fred and Carol Ours that affected the 48 acres Waddy sought.
- Waddy sued for specific performance and related relief against the Rigglemans, the mortgagee, and later the Ourses.

## Issues

1. Whether the sellers were excused from performance because obtaining mortgage releases was impossible or impracticable.
2. Whether time was of the essence such that failure to close by the stated date terminated contractual obligations.
3. Whether judgment as a matter of law for defendants at the close of the buyer’s case, including dismissal of claims against the subsequent purchasers, was proper.

## Decision

- The Supreme Court of Appeals of West Virginia reversed the circuit court’s judgment as a matter of law and remanded.
- The court adopted the doctrine of impracticability in West Virginia contract law.
- On the record at the close of the buyer’s case, the sellers had not met their burden to show that performance was excused by impossibility or impracticability.
- The court held the circuit court erred in treating the closing date as making time of the essence as a matter of law.
- The court held dismissal of the claims against the subsequent purchasers (the Ourses) at the directed-verdict stage was premature.

## Legal Principles

- A party may be excused from performance when an event, the nonoccurrence of which was a basic assumption of the contract, renders performance impracticable, provided the party seeking excuse is without fault and did not assume the risk; the party asserting impracticability bears the burden of proof.
- Impracticability requires more than inconvenience, delay, or increased cost, and does not apply where the alleged barrier to performance is self-created, foreseeable, or within the risk allocated by the contract.
- In real estate contracts, time is not of the essence merely because a closing date is stated; it must be made essential by express language or clearly shown intent from the circumstances.
- Judgment as a matter of law is improper when material factual questions remain regarding contractual excuse, allocation of risk, and competing property interests involving later purchasers.

## Conclusion

The court held that the sellers could not avoid a land-sale contract on an undeveloped record by claiming inability to clear title where the contract assigned them the obligation and costs of curing defects, and it rejected treating a stated closing date as automatically making time of the essence; the directed verdict was reversed and the case remanded for further proceedings, including claims affecting later purchasers.


Waddy v. Riggleman, 606 S.E.2d 222 (W. Va. 2004)