931 P.2d 1212 (Idaho 1997), 22032, Enright v. Jonassen

Docket Nº:22032.
Citation:931 P.2d 1212, 129 Idaho 694
Opinion Judge:McDEVITT,
Party Name:Lee P. ENRIGHT and Nancy K. Enright, husband and wife, Plaintiffs-Respondents, v. Harold F. JONASSEN, Flora S.W. Kung-Jonassen, Husband and Wife, McCann-Daech-Fenton Realtors, an Idaho Partnership; Richard Fenton, Individually, Defendants-Appellants.
Attorney:Brady, Lerma, Ctd., Boise, for appellants. Michael G. Brady argued. Hawley, Troxell, Ennis & Hawley, Ketchum, for respondents. Edward A. Lawson argued.
Case Date:February 03, 1997
Court:Supreme Court of Idaho
 
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Page 1212

931 P.2d 1212 (Idaho 1997)

129 Idaho 694

Lee P. ENRIGHT and Nancy K. Enright, husband and wife, Plaintiffs-Respondents,

v.

Harold F. JONASSEN, Flora S.W. Kung-Jonassen, Husband and Wife, McCann-Daech-Fenton Realtors, an Idaho Partnership; Richard Fenton, Individually, Defendants-Appellants.

No. 22032.

Supreme Court of Idaho, Boise.

February 3, 1997

Page 1213

[129 Idaho 695] Brady, Lerma, Ctd., Boise, for appellants. Michael G. Brady argued.

Hawley, Troxell, Ennis & Hawley, Ketchum, for respondents. Edward A. Lawson argued.

McDEVITT, Justice.

This is a breach of fiduciary duty case that involves a real estate transaction in which, subsequent to the purchase, the real property was discovered to be located in a County Flood Plain Management District. After a six day court trial, the district court ruled in favor of the real estate purchasers, the respondents, Lee P. Enright (Lee) and Nancy K. Enright (Nancy) (collectively referred to as the Enrights).

I.

BACKGROUND AND FACTS

On May 23, 1990, Harold Jonassen and Flora S.W. Kung-Jonassen (collectively referred to as Jonassen), entered into a listing agreement with Mike McCann (McCann) of McCann-Daech-Fenton Realtors (the Realtor), to sell twenty acres Jonassen owed on Eagle Creek in Blaine County, Idaho. The listing price was $4,000,000.

The listing agreement indicated that the listed property was zoned R-2 1/2. McCann determined the listed property was zoned R-2 1/2 based upon McCann's inspection of a Blaine County zoning map that was located in the Realtor's office.

The newspaper advertisements published by McCann did not indicate the listed property was in a floodplain or that the listed property was in an avalanche overlay district. The advertisements indicated the listed property was zoned R-2 1/2.

The Enrights first became aware of the listed property by seeing a newspaper advertisement for the listed property. The advertisement described the listed property as a twenty acre parcel of land with wonderful horse property and great development potential, both of which caught the Enrights' attention. 1

Lee called Mary Lou Mickelson, who had sold the Enrights a home on Fairway Road and Busterback Ranch, however, Mickelson was not available so Lee contacted the only other realtor Lee knew of in the area, Richard Fenton (Fenton). Fenton had contacted Lee previously regarding a prospective purchaser of the Enrights' Fairway Road home. Fenton was a real estate agent with the Realtor.

Page 1214

[129 Idaho 696] Fenton showed the Enrights the listed property. The Enrights liked the listed property, however, the Enrights ultimately realized they would only want 15 undeveloped acres, (lots 17, 18, and 19), and would not want the 5 developed acres on lot 16. Initially it appeared Jonassen would not split the 20 acres so that the Enrights could purchase only 15 of the 20 acres listed. However, after a third party made an offer on lot 16 and Jonassen made a counter offer for lot 16, the Enrights decided to make an offer on lots 17, 18 and 19.

Lee testified that:

You know, I was beginning to actively formulate in my own mind what this piece of property might be worth. And my remarks, I remember rather clearly actually saying to Dick, you know, almost seems too good to be true, that this is still sitting here in the Wood River Valley.

And I said: Are there any restrictions I don't know about? Are there any unusual building restrictions that would prohibit me from developing this property?

At which point he answered: No, just normal county building restrictions, which ...

And then I think, on the following day, which is usually my fashion, after reflecting on that comment, in a phone call to him, I said: What exactly are those normal county building restrictions?

And at which point he gave me a height restriction on the buildings, which I think was thirty feet, thirty-five, I forget which, and the forty-foot setback from the property, from the lines.

Fenton testified that while he did not recall the specific conversation in which Lee asked if there were unusual building restrictions on the listed property, such a conversation "may very well have taken place." Fenton testified that if Lee asked if there were unusual building restrictions on the listed property Fenton would have said there were no unusual building restrictions. Nancy testified that Lee had asked Fenton if there were unusual building restrictions on the listed property and that Fenton responded in the negative.

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