Carroll v. Bergen
| Decision Date | 15 November 2002 |
| Docket Number | No. 01-200.,01-200. |
| Citation | 57 P.3d 1209,2002 WY 166 |
| Parties | Dale E. CARROLL, dba Project Consultants, Appellant (Defendant), v. Thomas W. BERGEN, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
John D. Bowers of Bowers Law Office, P.C., Afton, Wyoming, Representing Appellant.
M. Kevin Voyles of Luthi & Voyles, Thayne, Wyoming, Representing Appellee.
Before HILL, C.J., and GOLDEN, LEHMAN,1 KITE, and VOIGT, JJ.
[¶ 1] Appellant Dale E. Carroll inspected a home Appellee Thomas W. Bergen was interested in buying and provided a report stating the house appeared to be "structurally sound." Mr. Bergen bought the property and thereafter sued Mr. Carroll alleging he had relied on the report to purchase the house but later discovered additional repairs were necessary. After a bench trial, the trial court awarded Mr. Bergen a $14,954 judgment against Mr. Carroll, and this appeal followed. We reverse and remand for a new trial.
[¶ 2] We rephrase the issues:
[¶ 3] On or about March 4, 1998, Mr. Bergen, through his real estate agent, Mary Fahringer of Real Estate of Star Valley, made an offer to purchase a house in Alpine. The offer had a provision permitting the buyer to obtain "electrical, mechanical, structural, environmental and/or other inspections of the Property by qualified professional inspectors and/or engineers." The seller accepted the offer, and Mr. Bergen asked Ms. Fahringer to arrange a "home inspection." She contacted Mr. Radford, the inspector for the Town of Alpine, who had performed several inspections for her in the past. Because he was going out of town, he referred her to Mr. Carroll.
[¶ 4] Ms. Fahringer contacted Mr. Carroll and asked him to perform a "home inspection," which he agreed to do with the understanding he would be paid a fee and mileage. She did not specifically ask him to perform a "structural inspection," nor did she explicitly communicate the nature of the inspection she wanted beyond requesting a "home inspection."
[¶ 5] Ms. Fahringer was present for the roughly forty-five-minute home inspection during which she and the seller advised Mr. Carroll of a broken window and a leak in the downstairs bathtub. Mr. Carroll prepared a handwritten report after the inspection in which he stated in part:
After reviewing the report, Ms. Fahringer called Mr. Carroll to advise him he had mistakenly indicated the house was built of solid log when it was actually constructed of structured insulated panels with log facing. Mr. Carroll rewrote the report so it was consistent with Ms. Fahringer's information and indicated only two problems with the house: a crack in the window in the northwest end of the home and a leak in the upstairs bathtub.2 Thereafter, Mr. Carroll submitted an invoice for $463 that was never paid.
[¶ 6] Mr. Bergen never spoke to Mr. Carroll prior to the inspection and did not provide him with any instructions. Mr. Bergen received the home inspection report, completed the purchase, and moved into the house on approximately April 1, 1998. Upon taking possession, he began to notice problems which were not reflected in the inspection report such as a damaged deck board, a partially finished wall, gaps between the walls and the logs supporting the roof, a lack of insulation around window casings, a fireplace which did not draw properly, and a sagging floor.
[¶ 7] Robert Wagner of R & R Builders came to the house to build a dormer and noted additional problems. He determined the sag in the floor was caused by a lack of support which could be repaired by placing a concrete pier and a post in the crawl space. He also concluded there were problems with some of the girders and the porch was built with wood intended for interior, not exterior, use. In October of 1999, Mr. Wagner estimated the total cost of all the "repairs," without any itemization, would not exceed $15,000. At trial in June of 2001, he testified, allegedly as a lay witness, over Mr. Carroll's continuing objection that his testimony should be precluded because he was not designated as an expert witness pursuant to the prehearing scheduling order. Mr. Wagner testified the same repairs in 2001 would likely cost $17,000 due to increased material, labor, and overhead expenses. In answer to questions posed by the court, he also testified the Uniform Building Code (UBC) was the standard for most contracts and construction in the building industry.
[¶ 8] The other trial witnesses were the real estate agent, Mr. Bergen, and Mr. Carroll. The court found a contract existed and awarded Mr. Bergen judgment against Mr. Carroll for $14,954 ($15,000 less the $46 unpaid inspection fee) plus $45 in court costs. Mr. Carroll appealed contending the trial court erred in finding there was a valid contract; and, alternatively, if there was a contract, Mr. Carroll did not breach it; or, if a valid contract was breached, no damages were proved.
[¶ 9] Our standard of review when a trial is held before the bench is well established:
The factual findings of a judge are not entitled to the limited review afforded a jury verdict. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail weighing disputed evidence. Findings of fact will not be set aside unless the findings are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. We review a district court's conclusions of law de novo on appeal.
Springer v. Blue Cross and Blue Shield of Wyoming, 944 P.2d 1173, 1175-76 (Wyo.1997) (citations omitted); see also Saulcy Land Company v. Jones, 983 P.2d 1200, 1203 (Wyo.1999).
[¶ 10] "Whether an oral contract exists is a question of fact to be determined by the trier of fact." Williams v. Dietz, 999 P.2d 642, 644 (Wyo.2000). The trial court found: "Plaintiff, through his real estate agent, contracted with Defendant to perform a home inspection on a home that Plaintiff was buying." Mr. Carroll argues there was no valid contract because (1) the real estate agent made all the arrangements with him but was not authorized to enter into outside contracts on Mr. Bergen's behalf, (2) there was no consideration because no payment was ever made for the "home inspection," and (3) there was no mutual assent to the contract terms.
[¶ 11] The record demonstrates Mr. Bergen and Ms. Fahringer, for Real Estate of Star Valley, entered into an Exclusive Right-to-Buy Contract which provided in part that the real estate office/broker and agent would act to locate and secure property to meet the buyer's needs. The contract expressly dealt with the broker/agent's authority to obtain services from outside sources.4 This court has said:
Actual authority may be express or implied. An agent has express actual authority to bind the principal when the principal, orally or in writing, specifically grants the agent the power to bind the principal. Implied actual authority is established by the course of dealings between the parties and the circumstances surrounding the case.
Cargill, Incorporated v. Mountain Cement Company, 891 P.2d 57, 62 (Wyo.1995) (citations omitted). It is reasonable to infer the broker/agent had authority to obtain outside services. If such services were not obtained consistent with the contract's terms, it is possible the buyer would have a claim against the broker/agent. However, there is no dispute between Mr. Bergen and the broker/agent regarding the manner in which Mr. Carroll's services were secured. Therefore, this argument fails because Ms. Fahringer had authority to secure the home inspection that Mr. Bergen requested.
[¶ 12] Mr. Carroll promised to inspect and, as Mr. Bergen's agent, Ms. Fahringer promised payment of his fee and mileage. Mr. Carroll asserts this exchange of promises did not constitute sufficient consideration for a valid contract because his $46 fee was not paid. We must disagree. For a contract to be valid, Kerper v. Kerper, 780 P.2d 923, 932 (Wyo.1989) (citation omitted). Consideration is described in the Restatement (Second) of Contracts:
1 Restatement (Second) of Contracts § 71 at 172 (1981). The promise to pay for the inspection and mileage constitutes valuable consideration. Mr. Bergen's failure to pay the fee was a breach of his promise to pay...
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