Cao v. Nguyen

• Court: Nebraska Supreme Court
• Writing for the Court: WRIGHT, J.
• Citation: Cao v. Nguyen, 258 Neb. 1027, 607 N.W.2d 528 (Neb. 2000)
• Decision Date: 17 March 2000
• Docket Number: No. S-98-975.,S-98-975.
• Parties: Lee P. CAO and Louann P. Cao, husband and wife, appellants, v. Huan NGUYEN and Nega Pham, husband and wife, appellees.

607 N.W.2d 528

258 Neb. 1027

Lee P. CAO and Louann P. Cao, husband and wife, appellants, v. Huan NGUYEN and Nega Pham, husband and wife, appellees.

No. S-98-975.

Supreme Court of Nebraska.

March 17, 2000.

Stephen D. Mossman and Jacqueline M. Schaneman, of Mattson, Ricketts, Davies, Stewart & Calkins, Lincoln, for appellants.

Douglas D. DeLair, of DeLair and De-Lair, Lincoln, for appellees.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, McCORMACK, and MILLER-LERMAN, JJ.

WRIGHT, J.

NATURE OF CASE

Lee P. Cao and Louann P. Cao (buyers) brought this action seeking rescission of a purchase agreement they entered into with Huan Nguyen and Nega Pham (sellers). The buyers alleged that the sellers negligently and fraudulently misrepresented that the property at 2223 R Street in Lincoln, Nebraska, was a duplex and could be rented to two separate families when in fact the property did not conform to the municipal code so as to be rented as a duplex or two-family dwelling. The district court found that the buyers had not proved the elements of fraudulent misrepresentation and dismissed their petition. The buyers timely appealed.

SCOPE OF REVIEW

In an appeal of an equity action, an appellate court tries factual questions de novo on the record, reaching a conclusion independent of the findings of the trial court. Where credible evidence is in conflict on a material issue of fact, the appellate court will consider and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Dillon Tire, Inc. v. Fifer, 256 Neb. 147, 589 N.W.2d 137 (1999).

FACTS

In May 1997, the buyers responded to an advertisement for the sale of a duplex and arranged to see the property. The buyers inspected the property on several occasions and observed that the property consisted of two units. The buyers informed the sellers that they intended to rent both units and to operate the property as a two-family dwelling. The sellers had rented both units in the past and at trial acknowledged that when they first purchased the house, it had been divided into two units in which two separate families resided.

The buyers decided to purchase the house, and the initial purchase agreement executed by the parties described the property as a "duplex house." The closing was set for May 29, 1997, and on that date, the parties signed a new purchase agreement which did not describe the property as a duplex.

The buyers subsequently applied for a building permit to make improvements to the property and were informed by the city building and safety department that the property could not be used as a duplex or two-family dwelling because the lot was not sufficiently wide to comply with the municipal code. The buyers then sought rescission of the purchase agreement, claiming that the sellers had fraudulently or negligently misrepresented to them that the property could be rented as a duplex. After a bench trial, the district court dismissed the action, finding that the buyers had not proved the elements of fraudulent misrepresentation. The court did not address the buyers' claim of negligent misrepresentation or the allegation that the sellers had not provided a copy of the property disclosure statement as required by Neb.Rev.Stat. § 76-2,120 (Reissue 1996).

ASSIGNMENTS OF ERROR

The buyers claim, summarized and restated, that the district court erred (1) in failing to rule on their claim of negligent misrepresentation, (2) in concluding that the sellers' representations that the house was a duplex were representations of law and not representations of fact, (3) in finding that their reliance on the sellers' representations was unreasonable, (4) in failing to rescind the purchase agreement, and (5) in failing to find a violation of § 76-2,120.

ANALYSIS

We first consider whether the district court's dismissal of the buyers' claim of fraudulent misrepresentation is a final, appealable order. Notwithstanding whether the parties raise the issue of jurisdiction, an appellate court has a duty to raise and determine the issue sua sponte. Hagelstein v. Swift-Eckrich, 257 Neb. 312, 597 N.W.2d 394 (1999). The question of jurisdiction is a question of law, upon which an appellate court reaches a conclusion independent of the trial court. Dvorak v. Bunge Corp., 256 Neb. 341, 590 N.W.2d 682 (1999).

In its memorandum and order of dismissal, the district court found that the sellers had made misrepresentations to the buyers upon which the sellers intended that the buyers rely. However, the court found that the buyers had not acted reasonably in relying upon these misrepresentations because the buyers ignored several warning signs and failed to investigate whether the property could be rented as a duplex or two-family dwelling. The court did not address the theory of negligent misrepresentation. However, since reasonable reliance is an element of both negligent misrepresentation and fraudulent misrepresentation, the dismissal of the buyers' petition for lack of reasonable reliance is a determination as to both theories of recovery, and we conclude that the order of dismissal was a final, appealable order which affected a substantial right and prevented a judgment.

An action for rescission sounds in equity. Schuelke v. Wilson, 255 Neb. 726, 587 N.W.2d 369 (1998). In an appeal of an equity action, an appellate court tries factual questions de novo on the record, reaching a conclusion independent of the findings of the trial court. Where credible evidence is in conflict on a material issue of fact, the appellate court will consider and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Dillon Tire, Inc. v. Fifer, 256 Neb. 147, 589 N.W.2d 137 (1999). The party alleging fraud as the basis for rescission must prove all the elements of the fraudulent conduct by clear and convincing evidence. Schuelke v. Wilson, supra.

In order to maintain an action for fraudulent misrepresentation, a plaintiff must allege and prove the following elements: (1) that a representation was made; (2) that the representation was false; (3) that when made, the representation was known to be false or made recklessly without knowledge of its truth and as a positive assertion; (4) that it was made with the intention that the plaintiff should rely upon it; (5) that the plaintiff reasonably did so rely; and (6) that the plaintiff suffered damage as a result. Four R Cattle Co. v. Mullins, 253 Neb. 133, 570 N.W.2d 813 (1997).

In dismissing the buyers' petition, the district court concluded that the sellers' representations that the home was a duplex were representations of law and not representations of fact. The court also concluded that the buyers' reliance upon such representations was not reasonable. The court found that the buyers should have questioned the sellers' assurances that the property could be rented as a duplex because only one unit was actually rented; the purchase price was about half the expected price, given the predicted rentals; and one of the units was in need of repair. The court concluded that ordinary prudence under these circumstances would have required the buyers to contact the city building and safety department. We disagree with both of these conclusions.

The representations made by the sellers were representations of fact, not law. In Nat Conv. Corp. v. Cedar Bldg. Corp., 23 N.Y.2d 621, 246 N.E.2d 351, 298 N.Y.S.2d 499 (1969), the court stated that the landlord's misrepresentation as to the legality of use of the premises would not, as to the tenant, be treated as an opinion of law and that the tenant might rely upon the representation. In Homes, Inc. v. Gaither, 31 N.C.App. 118, 228 S.E.2d 525 (1976), the court held that the use of real property permissible under a zoning ordinance is a statement of fact, and a mutual mistake with respect thereto entitles a party to avoidance of a contract when such fact goes to the essence of the agreement.

Here, the district court incorrectly characterized the misrepresentations as misrepresentations of law. The buyers informed the sellers that they intended to use the house as rental property, and upon inspection, the buyers saw that the property consisted of two separate apartments and had two front doors, two mailboxes, and two gas meters. The buyers were told by the sellers that the house was divided into two units, and the sellers admitted that the house had been rented to two separate families in the past. The statement that the home could be rented to two...