Bird v. Coleman
| Decision Date | 01 April 1997 |
| Docket Number | 83005,Nos. 82573,s. 82573 |
| Citation | 1997 OK 44,939 P.2d 1123 |
| Parties | Wayne BIRD and Carol Bird, Appellees, v. Robert H. COLEMAN, Appellant. |
| Court | Oklahoma Supreme Court |
Ruston C. Welch, Hastie, McCutcheon and Maye, Oklahoma City, for Appellees.
W. Dan Nelson, MaryGaye LeBoueuf, Oklahoma City, David L. Kearney, Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, for Appellant.
On certiorari we are asked to determine whether the trial court erred in granting summary judgment in favor of appellees, the Birds. Appellant Coleman contends the trial court's order was premature as material fact questions concerning his defenses to plaintiffs' action were controverted and directly at issue. Coleman additionally argues that the trial court's holding in favor of Birds on Coleman's counterclaim is erroneous as their motion for summary judgment did not include the counterclaim and Coleman's allegations therein had not been controverted or even addressed by Birds.
Coleman contends the trial court erred by treating this action as if it were brought to enforce the terms of a note for a loan of money and refusing to consider the underlying transaction which both sides agreed was a contractual relationship. In so doing, the trial court (and in turn the Court of Civil Appeals) refused to consider his contractual defenses and counterclaim to an action brought against him for breach of contract.
We agree with Coleman. We vacate the Court of Civil Appeals' decision affirming the trial court's order denying Coleman's motion for new trial, motion to vacate and motion to reconsider. The judgment of the trial court in favor of Birds is reversed and the matter is remanded for further consideration. Certiorari was previously granted.
In April of 1987, Birds conveyed all their outstanding stock in Moon-Petro, Inc., an oilfield chemical company, to Coleman for $800,000, consisting of $300,000 down and $125,000 a year for the next five years. The parties did not have a written contract incorporating all the terms of their agreement. A draft was prepared by the Birds but it was never executed. Pursuant to their oral agreement, Coleman paid Birds $300,000 and took possession of the business in May, 1987. Subsequently, Coleman signed a promissory note which reflected the outstanding balance owed under the oral contract in favor of Birds for the principal sum of $500,000 to be paid in annual payments of $125,000. Coleman made all the payments required under the oral contract, as evidenced by the note, from 1988 until 1990 when he withheld $60,000 from the last payment and tendered the balance to Birds.
Coleman claimed that he retained the $60,000 as a setoff because when he attempted to sell certain Texas real property of the corporation's to a third party, he discovered that contrary to representations by the Birds, it was encumbered by liens and the corporation did not have marketable title. Coleman alleged that he was then sued by the third party and was forced to spend approximately $60,000 to clear title to the property.
The Birds, who still held the note, gave notice to Coleman that they would not accept any setoff and when Coleman was not forthcoming with the $60,000, they sued him for defaulting under the terms of the note seeking the balance due, attorney fees and costs.
Before Coleman filed his answer, Birds moved for summary judgment asserting the uncontroverted facts established that Colemans had executed and delivered the note, that there was a balance due on the note for which demand had been made for payment, but Coleman was in default.
Later Coleman answered and set forth the affirmative defenses of fraud and failure of consideration and he counterclaimed against the Birds for fraud, breach of contract and failure of consideration. Coleman admitted that he signed the note as consideration for Birds selling him all the outstanding shares of the corporation and also, he asserted, all its assets. He alleged that Birds breached the contract by failing to convey free and clear title to the subject property. In his counterclaim, Coleman asserted that the Birds sold him all the stock of the corporation and all its assets and fraudulently represented to him that the subject property was owned free and clear of any encumbrances and the corporation had marketable title. He alleged the Birds knew at that time the representations were false and that they fraudulently induced him to enter into the contract and he had relied to his detriment on the fraudulent misrepresentations.
In his response to the Birds' motion for summary judgment, Coleman asserted that the action pending before the trial court was not an action on a note for a loan or funds advanced, but was based on the underlying contract for sale of stock and assets of Moon-Petro Chem, Inc. He set forth in detail the agreement between the parties and the alleged failure of consideration by reason of failure to convey clear title, fraudulent misrepresentation, allegations of fraudulent inducement and his detrimental reliance thereon, all supported by affidavit and supporting documents including the written contract draft originally prepared by Birds but never executed. That agreement repeatedly mentions that the sale of the corporate stock includes all the corporate assets, which encompass "lands and buildings," which strongly implies that Birds did intend to convey all the corporate assets in this sale.
In their reply to Coleman's response to their motion for summary judgment, the Birds admitted a contractual arrangement between the parties was the basis of the note, but contended that the contractual transaction was limited to the sale of stock and did not include the purchase of corporate assets. They argued that Coleman received all he bargained for, the outstanding stock, and therefore his claim of failure of consideration did not present substantial controversy as to a material fact requiring trial by the court.
In their reply to Coleman's counterclaim the Birds denied that a misrepresentation was made, but they presented no evidentiary materials to refute Coleman's evidence of his claim of fraud in support of his defense and counterclaim of fraud.
The trial court granted summary judgment in favor of Birds on their claim on...
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