Ahearn v. Anderson-Bishop Partnership, ANDERSON-BISHOP

• Decision Date: 08 October 1997
• Docket Number: Nos. 96-53,96-217,ANDERSON-BISHOP,s. 96-53
• Citation: 946 P.2d 417
• Parties: Francis B. AHEARN, Appellant (Plaintiff), v.PARTNERSHIP, a general partnership, Appellee (Defendant). Francis B. AHEARN, Appellant (Plaintiff), v. FIRST STATE BANK OF WHEATLAND, WYOMING, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 417

946 P.2d 417

Francis B. AHEARN, Appellant (Plaintiff), v. ANDERSON-BISHOP PARTNERSHIP, a general partnership, Appellee (Defendant).

Francis B. AHEARN, Appellant (Plaintiff), v. FIRST STATE BANK OF WHEATLAND, WYOMING, Appellee (Defendant).

Nos. 96-53, 96-217.

Supreme Court of Wyoming.

Oct. 8, 1997.

Steven K. Sharpe of Nicholas Law Offices, L.L.C., Cheyenne, for Appellant (Plaintiff).

Stephen N. Sherard of Sherard, Sherard & Johnson, Wheatland, for Appellee (Defendant) Anderson-Bishop Partnership.

Julie Nye Tiedeken, Cheyenne, for Appellee (Defendant) First State Bank of Wheatland, Wyoming.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.

LEHMAN, Justice.

These cases arise out of the sale of property owned by Francis B. Ahearn (Ahearn) near Wheatland, Wyoming. Ahearn contends that Anderson-Bishop Partnership (Partnership) wrongfully obtained confidential information from the First State Bank of Wheatland (Bank) and used that information to purchase Ahearn's property at a grossly deflated price. The district court entered summary judgment in favor of the Partnership and the Bank. Finding the notice of appeal as to the Bank was not timely filed, we dismiss No. 96-217 in this consolidated appeal for lack of jurisdiction. We affirm the summary judgment in favor of the Partnership.

In his opening brief, Appellant Ahearn presents the following issues:

1. Whether the district court erred in granting summary judgment in favor of First State Bank of Wheatland?

a. Did the district court err in granting summary judgment to the bank on the issues of proximate cause and damages (which issues had never been raised in the bank's summary judgment motion), without first giving the Appellant notice and an opportunity to present evidence or legal argument?

b. Does a genuine issue of material fact exist with respect to the issues of proximate cause and damages which precludes the entry of summary judgment?

2. Whether the district court erred in granting summary judgment in favor of the Anderson-Bishop Partnership?

a. Did the district court err in granting summary judgment in favor of the partnership on account of the Appellant's alleged failure to state a claim, when that issue had never been raised by the partnership in its motion and where the Appellant was never given notice or an opportunity to amend his complaint or present argument or evidence in opposition b. Did the Appellant state claims against the partnership upon which relief could be granted?

c. Did the district court err in granting summary judgment in favor of Anderson-Bishop Partnership on its affirmative defense of laches?

3. Whether this Court has jurisdiction to hear Appellant's argument with respect to First State Bank of Wheatland, Wyoming?

The First State Bank of Wheatland, appellee, presents six issues for review:

1. Does this Court have jurisdiction to hear the appeal?

2. Did Ahearn have sufficient notice of the Bank's Motion for Summary Judgment and have an opportunity to present evidence and legal argument?

3. Is the Bank entitled to Summary Judgment because Ahearn cannot prove proximate cause or damages?

4. Is there a question of material fact on whether the Bank breached its duty of confidentiality?

5. Did the Bank have a duty to keep facts pertaining to a debtor/creditor relationship confidential?

6. Is the Bank entitled to Summary Judgment on the Plaintiff's claims of fraud?

The Anderson-Bishop Partnership, also an appellee in this appeal, responds with a single issue:

Did the district court err in granting Anderson-Bishop's (Defendant/Appellee) Motion for Summary Judgment?

FACTS

In the mid-1980s, Ahearn and his wife purchased two separate parcels of land near Wheatland--Tract F and Tract G. Tract F consists of 2.65 acres and Tract G about 4.84 acres. Ahearn constructed a gasoline station/convenience store, the Wheatland Travel Stop, on approximately 2.67 acres of Tract G.

In November 1991, John Bishop (Bishop) approached Ahearn about purchasing property on which to put a bulk plant. At the same time, Ahearn and his wife were contemplating a divorce and had discussed selling the Wheatland Travel Stop. Ahearn later asked Bishop if he had any interest in purchasing the Travel Stop, and Bishop indicated that he did. Ahearn contends that he and Bishop reached an oral agreement whereby Bishop would purchase the Wheatland Travel Stop for $400,000 plus inventory. During mid-January 1992, Bishop advised Ahearn that he intended to enter a partnership with Andrew Anderson (Anderson) to purchase the Travel Stop. Ahearn knew Anderson because Anderson was his fuel supplier, and Ahearn told Bishop he had no problem with that arrangement so long as the deal stayed the same.

A short time later, Ahearn called Anderson to order some fuel. Ahearn mentioned the proposed partnership between Anderson and Bishop to buy the Travel Stop. According to Ahearn, Anderson acknowledged the deal and then stated that they wanted the 1.048 acres next to the Travel Stop (also part of Tract G) for $10,000. When Ahearn told Anderson he did not want to sell the additional acreage for that amount, Anderson responded that, in that case, they (he and Bishop) would not honor Bishop's commitment to buy the property. Ahearn states that although he believed the additional acreage had a fair market value higher than $10,000, he agreed to the terms proposed by Anderson because he was in a financial predicament and under pressure to sell the Wheatland Travel Stop to remove his wife's name from the debt.

Ahearn relates that sometime in March 1992, Anderson showed up at the Travel Stop for a tour of the neighborhood. Ahearn had previously taken Bishop on a similar tour. During the tour, Anderson inquired about Tract F. Two days later, Ahearn called Anderson to order fuel. During the conversation, Anderson told Ahearn that he wanted Ahearn to throw in Tract F at no additional cost, and if he did not, then Anderson was not going to go through with the deal. When Ahearn said he did not want to sell Tract F, Anderson asked how Ahearn intended to pay his fuel bill, which at that time totaled over $40,000. Again, because of his impending divorce, heavy debt load and lack of cash or The sale of the Wheatland Travel Stop closed on May 21, 1992. After all the documents had been signed, Ahearn states that Anderson commented: "This is what happens to you when you have $35,000 worth of high interest credit card debt." That comment is the basis of this lawsuit. On January 16, 1992, Ahearn had given a copy of his personal financial statement to the Bank, among others. The financial statement revealed that Ahearn had substantial debt, including very high credit card debt, and also that he had very little cash on hand at the Bank. John Bishop's wife, Susan Bishop, worked at the bank at the time and had access to the financial statement. Ahearn contends that the Partnership wrongfully obtained information contained in his financial statement from the Bank and then used it against him to obtain the additional two parcels at a grossly deflated price.

other liquid assets to satisfy his financial obligations, Ahearn felt he had no choice but to include the additional acreage so the deal would go through.

Ahearn filed suit in district court against the Bank and the Partnership. He claimed the Bank breached its duty of confidentiality and engaged in willful and wanton misconduct. Ahearn's claims against the Partnership included intentional interference with contract expectancy/proposed economic advantage, fraud and constructive fraud, improper inducement to breach contract, mistake of fact, mistake of law, and willful and wanton misconduct. On December 19, 1995, the district court filed its decision letter, granting the defendants' separate motions for summary judgment. Subsequently the court entered orders granting summary judgment to the Bank and to the Partnership, each order incorporating by reference the decision letter.

On February 2, 1996, Ahearn, acting pro se at the time, filed a notice of appeal. The caption listed both the Partnership and the Bank, and both parties were served. The notice, however, referred only to the "Order Granting Judgment in favor of Defendant, Anderson-Bishop Partnership entered on January 8, 1996." Ahearn had not received a copy of the Order Granting Summary Judgment In Favor of First State Bank of Wheatland, Wyoming, which was filed on January 22, 1996, and, according to his affidavit, he believed he had done everything necessary to perfect his appeal as to both defendants. On May 3, 1996, Ahearn secured counsel to represent him on appeal; counsel discovered the January 22 order when he reviewed the court file. Ahearn immediately filed an amended notice of appeal. The Bank responded with a resistance and motion to strike the amended notice. After fully considering the matter, this court entered an order on June 5, 1996, finding the notice of appeal untimely and dismissing the Bank as an appellee.

In the meantime, Ahearn sought relief in the district court through a W.R.C.P. 60(b) motion. After a hearing, the district court found that neither Ahearn nor his attorney at the time was ever mailed a copy of the signed order dated January 22; that the clerk's office failed to comply with W.R.C.P. 77 which requires the clerk to mail a copy of any order or judgment to all parties immediately after entry; and that depriving Ahearn of his right to appeal under these circumstances would violate due process. Consequently, the court entered an order vacating the January 22 order and re-entering the order effective August 1, 1996, thereby extending Ahearn's time for appeal. Ahearn timely appealed the August 1 order and subsequently moved for consolidation of the two cases, Ahearn v. Anderson-Bishop Partnership and Ahearn v. First State Bank of Wheatland, Wyoming. Having granted the motion, we have before us now the consolidated appeal.

...