Breach of real-property purchase agreement; Supplemental earnest money; Time of the essence; Alleged oral extension; Written-modification requirement; Tender of payment by third party; Promissory estoppel; Costs & attorney fees; Contractual fee provision; Judicial reassignment request

The court held that defendants were entitled to summary disposition because plaintiff failed to timely tender the required $40,000 supplemental earnest-money payment under the parties’ purchase agreement, and defendants were entitled to their appellate costs and attorney fees under the agreement. Plaintiff agreed to purchase partially developed land for $1.6 million, with the agreement requiring him to tender an additional $40,000 within 24 days. The court concluded that the agreement’s deadlines and defendants’ prompt termination following default supported the finding that time was of the essence. Although the parties disputed whether one defendant orally agreed to a three-day extension, the agreement expressly provided that it “may be modified or amended only by written instrument signed by the parties.” No extension was signed. Further, plaintiff never actually tendered the $40,000 by the deadline. His investor e-mailed a copy of a $40,000 check drawn on the investor’s wife’s trust late that evening, but even timely delivery would not have constituted valid tender because the check was drawn on the account of a stranger to the contract. Plaintiff’s promissory-estoppel argument likewise failed because estoppel could not rest on an alleged oral promise expressly contradicted by the written agreement. Given plaintiff’s failure to comply with the payment requirement, defendants were entitled to summary disposition. The court also concluded that the agreement expressly entitled the prevailing party in litigation, “including appeals of all levels,” to costs and reasonable attorney fees. It therefore remanded for determination and award of defendants’ appellate fees and costs. Finally, it rejected plaintiff’s request for reassignment on remand because adverse rulings alone did not establish bias or prejudice. Affirmed and remanded for the limited purpose of awarding appellate costs and attorney fees.