Clymer v. Champagne, D051833 (Cal. App. 5/12/2009)
| Decision Date | 12 May 2009 |
| Docket Number | D051833 |
| Court | California Court of Appeals Court of Appeals |
| Parties | DANA CLYMER et al., Plaintiffs and Appellants, v. ANN MARIE CHAMPAGNE et al., Defendants and Respondents. |
Appeal from a judgment of the Superior Court of San Diego County, No. GIN44219, Thomas P. Nugent, Judge. Affirmed.
Plaintiff Dana Clymer attempted to purchase a residence owned by defendants Ann Marie Champagne and Richard Champagne (together the Champagnes), who were then in the midst of divorce proceedings. After Clymer was unsuccessful at acquiring the residence, she (along with her real estate broker, plaintiff Home Plus Realty (HPR) (together Buyers)) filed a lawsuit against the Champagnes alleging numerous claims, including breach of contract and a series of claims sounding in fraud.1
The Champagnes moved for and obtained summary adjudication on five of Buyers' claims against them. However, the court denied cross-motions seeking summary adjudication on the breach of contract claim, concluding Buyers could not obtain summary adjudication because the contract did not satisfy the statute of frauds but the Champagnes could not obtain summary adjudication because there were triable issues of fact on whether they were estopped to assert the statute of frauds defense.
Buyers moved for a jury trial on all remaining issues, including whether the Champagnes were equitably estopped from relying on the statute of frauds. The court denied the motion, and instead ordered that the issue of equitable estoppel would be tried first to the court and would be limited to whether Buyers could demonstrate the Champagnes were equitably estopped from relying on the statute of frauds either because Buyers had suffered unconscionable injury or the Champagnes had been unjustly enriched. After Buyers' opening statement summarized their evidence on these issues, the Champagnes moved for nonsuit, which the court granted. Judgment was thereafter entered for the Champagnes.
On appeal, Buyers assert the court erred in granting summary adjudication on their fraud-based claims, and erred when it bifurcated the trial and subsequently granted nonsuit on Buyers' contract claim.
In August 2004, the Champagnes, then married, acquired title to certain realty in Rancho Santa Fe, California (the Property). Richard signed the documents to purchase the Property in his name and on behalf of Ann pursuant to a power of attorney granted to him by Ann.2 However, by November 2004, Ann filed for divorce.
In January 2005, in apparent contemplation of the marital dissolution proceedings, the Champagnes signed a listing agreement with a realtor that listed the Property for sale for a price between $3 million and approximately $3.5 million.
Sometime in early March, Clymer learned the Property was listed on the Multiple Listing Service (MLS). She contacted Lawless, the Champagnes' real estate agent, and made an appointment to see the Property. Either prior to or during Clymer's initial visit, Lawless told Clymer the Champagnes were in the midst of a divorce proceeding.
On March 10, HPR (acting as Clymer's real estate agent) submitted an offer by Clymer to purchase the Property for the price of $2.4 million. The written offer was later amended at Lawless's request to provide that both Ann and Richard were required to sign the acceptance. Neither Ann nor Richard signed an acceptance of the offer before it expired.
Richard directed Lawless to respond to Clymer's initial offer with a counteroffer (Counteroffer No. 1). On March 11, 2005, Lawless faxed a counteroffer (signed only by Richard and accompanied by a fax cover sheet and memorandum) to HPR, Clymer's agent. The fax cover sheet stated: "Attached Is Counter Offer # 1 + Accompanying Memo Relating [To Ann's] Signature Requirement +/or the Presiding Court's Authorization." The "accompanying memo" stated, in part, that Later that day, Lawless faxed "Counter Offer 1A," which advised Clymer that it "replaces Counter Offer 1 & Memo." Counteroffer No. 1A () and the accompanying memo was essentially identical to Counteroffer No. 1 except that Counteroffer No. 1A added, as an express term within the body of the counteroffer, that "Final Acceptance of this counter offer is subject to written approval of [Ann] or court order." Clymer did not accept either Counteroffer No. 1 or Counteroffer No. 1A.
The final counteroffer transmitted by Lawless to Buyers was faxed on March 17. That counteroffer (Counteroffer No. 1B), again signed only by Richard,3 provided that Richard was willing to accept the original offer price of $ 2.4 million subject to certain conditions. However, it also specified it would expire and be deemed revoked unless the counteroffer was signed as accepted by Clymer and a copy of the signed counteroffer was personally received by the Champagnes not later than March 18, 2005, at 2:00 p.m. Unlike Counteroffers Nos. 1 and 1A, Counteroffer No. 1B was not accompanied by a memo explicitly stating it was subject to Ann's approval. However, Buyers admitted they had previously understood both Ann and Richard needed to sign the contract before it would be binding.
Although Clymer signed Counteroffer No. 1B, and denoted that her signature was affixed at 2:00 p.m. on March 18, the fax transmittal line sending the acceptance from HPR's fax machine showed it was sent to Lawless's fax number nearly three hours after the 2:00 p.m. deadline. (Clymer I, supra, D051032 at p. 5.)
Sometime on March 18, Lawless received a letter from Ann's divorce attorney (Mr. Childers) stating in part that [¶] . . . Childers testified he was not authorized to execute any documents on Ann's behalf. Lawless thereafter provided copies of that letter to Buyers.
The following day, Clymer (along with her mother and HPR's representative) met with a loan broker to fill out a loan application, and also visited the Property. The following Monday, Clymer also spent time with her daughter exploring the local schools and the neighboring town.4
On the afternoon of March 21, Lawless informed Buyers that Ann was unwilling to sell the Property to Clymer at the $2.4 million price, and HPR informed Lawless that Clymer would not pay more than $2.4 million.5 Within two days, Buyers had hired attorneys who demanded that Ann and Richard sell the Property on the terms contained in the counteroffer Clymer purported to accept on March 18. Additional communications between the parties during the ensuing seven weeks did not resolve their dispute and Buyers filed the present lawsuit.6 The Property was ultimately sold to a different buyer in May 2005.
II
A. The Lawsuit
Buyers' action pleaded claims against the Champagnes for breach of contract, alleging Richard signed Counteroffer No. 1B for himself and also for Ann under the authority of a July 22, 2004, Power of Attorney. Buyers alleged Clymer's timely and unconditional March 18, 2005, acceptance of Counteroffer No. 1B therefore created an enforceable contract to acquire the Property or, alternatively, that a contract was formed when Clymer accepted the Champagnes' April 21 offer. The complaint sought damages from the Champagnes for breach of that contract. Buyers also pleaded a series of fraud-based claims against the Champagnes, including claims styled as causes of action for fraud, intentional misrepresentation, negligent misrepresentation, and concealment.
The Champagnes moved for summary judgment or, alternatively, for summary adjudication as to each of Buyers' claims. The court granted summary adjudication in the Champagnes' favor as to all of Buyers' fraud-based claims. However, the court denied summary adjudication on the contract claim because the court found that whether Buyers could maintain their contract claim notwithstanding the statute of frauds defense involved a triable issue of fact on whether the Champagnes were estopped to rely on the statute of frauds. The court subsequently agreed with the Champagnes that the estoppel issue should be bifurcated from the remaining contract issues and tried to the court before any jury trial on the remaining issues and, after Buyers' opening statement summarized their evidence on the estoppel issue, the court granted the Champagnes' nonsuit motion on the contract claim. The court entered judgment in the Champagnes' favor, and this appeal followed.
On appeal, Buyers argue the court erred by granting summary adjudication on their fraud claims, and erred when it bifurcated trial and granted nonsuit on their contract claim.7
III
The court granted summary adjudication in the Champagnes' favor as to all of Buyers' fraud-based claims. Buyers assert there were triable issues of fact as to the viability of their fraud-based claims, and therefore this ruling was error.
Buyers' fraud-based claims did not rely on any specific misrepresentations by the Champagnes, but were instead premised on alleged...
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