Duffy v. Brown, Nos. 84-307

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore THOMAS; ROONEY
Citation708 P.2d 433
Decision Date31 October 1985
Docket NumberNos. 84-307,84-308
PartiesRoland DUFFY, d/b/a Duffy Construction, Appellant (Plaintiff), v. Arthur E. BROWN, Jr., and Shootin' Iron Development Company, a Wyoming corporation, d/b/a Jackson Hole Racquet Club, Appellees (Defendants). Arthur E. BROWN, Jr., and Shootin' Iron Development Company, a Wyoming corporation, d/b/a Jackson Hole Racquet Club, Appellants (Defendants), v. Roland DUFFY, d/b/a Duffy Construction, Appellee (Plaintiff).

Page 433

708 P.2d 433
Roland DUFFY, d/b/a Duffy Construction, Appellant (Plaintiff),
v.
Arthur E. BROWN, Jr., and Shootin' Iron Development Company, a Wyoming corporation, d/b/a Jackson Hole Racquet Club, Appellees (Defendants).
Arthur E. BROWN, Jr., and Shootin' Iron Development Company, a Wyoming corporation, d/b/a Jackson Hole Racquet Club, Appellants (Defendants),
v.
Roland DUFFY, d/b/a Duffy Construction, Appellee (Plaintiff).
Nos. 84-307, 84-308.
Supreme Court of Wyoming.
Oct. 31, 1985.

Page 435

Robert N. Williams, Jackson, for appellant in Case No. 84-307 and appellee in Case No. 84-308.

Peter F. Moyer of Hartnett & Moyer, Jackson, for appellees in Case No. 84-307 and appellants in Case No. 84-308.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

ROONEY, Justice.

This dispute arose over the construction of a group of townhouses in Jackson, Wyoming. Roland Duffy, d/b/a Duffy Construction, appellant in Case No. 84-307 and appellee in Case No. 84-308 (hereinafter referred to as "plaintiff"), contends that he was hired to supervise the construction of the entire project, consisting of thirty-five townhouses grouped into eight buildings; Arthur E. Brown, Jr. and Shootin' Iron Development Company, d/b/a Jackson Hole Racquet Club, appellees in Case No. 84-307 and appellants in Case No. 84-308 (hereinafter referred to as "defendants"), contend that plaintiff was hired to supervise only one building. Plaintiff filed a complaint based on theories of fraud, negligent misrepresentation, breach of contract and unjust enrichment. Summary judgment was granted in favor of the defendants on the first two theories, with the remaining being submitted to a jury. The jury denied the breach of contract claim and awarded plaintiff $965 on the unjust enrichment claim. Plaintiff appealed both the summary judgment and the jury verdict. Defendants in turn filed a cross-appeal from the trial court's refusal to award costs to them.

Plaintiff words the issues on his appeal as follows:

I. "IS SUMMARY JUDGMENT PROPER WHERE THERE ARE MATERIAL ISSUES OF FACT CONCERNING FRAUDULENT AND NEGLIGENT MISREPRESENTATIONS?"

II. "IS IT REVERSABLE ERROR FOR THE TRIAL COURT TO REFUSE TO INSTRUCT THE JURY THAT WHEN NO TIME FOR PERFORMANCE IS MENTIONED IN A CONTRACT THAT THE LAW IMPLIES A REASONABLE TIME?"

III. "IS IS [sic] PROPER FOR THE TRIAL COURT TO ENTER JUDGMENT ON A JURY VERDICT FORM THAT IS AMBIGUOUS AND INCONCLUSIVE?"

Defendants word the issue on their appeal as follows:

"When a party makes an offer of judgment under W.R.Civ.P.Rule 68, and the judgment obtained by the offeree [defendant] is less favorable than the offer, is the offeror entitled to reimbursement for costs of depositions * * * and for costs of preparing certain trial exhibits?"

Page 436

We affirm the holding of the district court in Case No. 84-307 and reverse the holding and remand Case No. 84-308.

FACTS

From 1973 to 1982, defendant Art Brown managed a joint venture which constructed over thirty condominium buildings and commercial facilities at the Aspens, a/k/a Jackson Hole Racquet Club, which is approximately three miles from Teton Village Ski Resort. Art Brown and his wholly-owned company, Shootin' Iron Development Company, bought the interests of his joint venture partners in April, 1982. 1

In 1979, Lot 13 of the Aspens was platted for a townhouse/condominium project, with eight buildings. The footings and some foundations were completed in 1979, but nothing further was done until 1982. The project was designed to proceed on a building-by-building basis, depending on "pre-sales" of units within each building; a certain number of pre-sales were necessary to qualify for the bank loan for each building. In January 1982, pre-sales were sufficient to begin Building 4400, the first of the eight buildings.

At defendant's request, plaintiff presented a one-page proposed contract, which read in part:

"DATE

"Jan. 27, 1982

"Proposal submitted to "Art Brown

"JOB NAME

"Jackson Hole Racquet Club Townhouses

"I WILL PROVIDE SUPERVISION AS THE PROJECT SUPERVISOR FOR THE ABOVE PROJECT FOR THE AMOUNT OF 10% OF THE COST OF LABOR AND MATERIAL FOR THE ENTIRE PROJECT. I WILL BE PROVIDING THE OFFICE, HALF OF THE TELEPHONE EXPENSE, HALF OF THE COST OF HEATING THE OFFICE, AND TEMPORARY STORAGE ON THE JOB SITE."

Defendant reviewed this proposed contract, and then had his secretary type on it:

"BUILDINGS:

"4400"

Both parties specifically initialed the number "4400" and signed the contract.

When Building 4400 was substantially completed, in October 1982, plaintiff was informed that he would not be the supervisor of the next building. The conflict was thus joined. Plaintiff claimed that the "BUILDINGS: 4400" was added to the contract to specify the order of construction on the buildings, and that the contract applied to the entire Lot 13 project. Defendant claimed that the "BUILDINGS: 4400" specifically limited the contract to Building 4400, and that the contract would only be binding for a later building if an additional building number was later added and initialed by both parties.

I

A summary judgment

" * * * shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * * " Rule 56(c), W.R.C.P.

The purpose of summary judgment is to eliminate formal trials where only questions of law are involved, Johnson v. Soulis, Wyo., 542 P.2d 867, 871 (1975), and to pierce the formal allegations and reach the merits of a controversy where no material issue of fact is present, Siebert v. Fowler, Wyo., 637 P.2d 255, 258 (1981). Where there are genuine issues of material fact, summary judgment is improper; but the purpose behind summary judgment would be defeated if a case could be forced to trial merely by asserting that a genuine issue of material fact exists. Johnson v. Soulis, supra.

Page 437

When a motion for summary judgment is granted and appealed to this court, we have the same duty as did the district court judge. We review the same material and apply the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of the court's dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party who is opposing the motion and gives to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record. Roth v. First Security Bank of Rock Springs, Wyo., 684 P.2d 93, 95 (1984).

The elements of a claim for relief for fraud are a false representation made by the defendant which is relied upon by the plaintiff to his damage, the asserted false representation must be made to induce action, and the plaintiff must reasonably believe the representation to be true. Anderson v. Foothill Industrial Bank, Wyo., 674 P.2d 232, 238 (1984). A plaintiff who alleges fraud must do so clearly and distinctly, and fraud will not be imputed to any party when the facts and circumstances out of which it is alleged to arise are consistent with honesty and purity of intention. Reed v. Owen, Wyo., 523 P.2d 869, 871 (1974). Fraud must be established by clear, unequivocal and convincing evidence, and will never be presumed. Kincheloe v. Milatzo, Wyo., 678 P.2d 855, 862 (1984).

The elements of a negligent misrepresentation claim are generally recognized to be as follows: False information supplied in the course of one's business for the guidance of others in their business, failure to exercise reasonable care in obtaining or relating the information, and pecuniary loss resulting from justifiable reliance thereon. Restatement of Torts (Second) § 552, p. 126 (1977).

It is clear from the record that a showing of fraud or negligent misrepresentation was not made by clear and convincing evidence. By his deposition, plaintiff could not designate the factual basis for his fraud claim. He testified:

"Q (By Mr. Moyer) Do you have any belief or evidence to the effect that Art never intended to let you do the whole project right from the beginning; that he always intended to just let you do one building?

"A You wonder about...

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53 practice notes
  • Richey v. Patrick, No. 94-50
    • United States
    • United States State Supreme Court of Wyoming
    • 18 October 1995
    ...or competence in obtaining or communicating the information. Restatement, Second, Torts, § 552(1) (emphasis supplied); Duffy v. Brown, 708 P.2d 433, 437 (Wyo.1985). The Richeys did not supply false information to the Patricks. In fact, the Richeys did not supply any information to the Patri......
  • Wlodarczyk v. State, No. 91-20
    • United States
    • United States State Supreme Court of Wyoming
    • 24 June 1992
    ...sentence, is an indeterminate sentence. Duffy v. State, 789 P.2d 821 (Wyo.1990); Duffy v. State, 730 P.2d 754 (Wyo.1986); Duffy v. Brown, 708 P.2d 433 2. Wyo.Stat. § 7-13-301 (1987) 7--a non-convicted probationary assessment. Utilization is subject to consent of the prosecuting attorney as ......
  • Brooks v. Zebre, No. 88-263
    • United States
    • United States State Supreme Court of Wyoming
    • 17 May 1990
    ...v. Bill Anselmi Pontiac-Buick-GMC, Inc., 786 P.2d 855 (Wyo.1990). See also Garner v. Hickman, 709 P.2d 407 (Wyo.1985) and Duffy v. Brown, 708 P.2d 433 (Wyo.1985). This court has further recognized that evidence of any active conduct or words which tend to produce any erroneous impression mi......
  • INTERN. SURPLUS LINES v. Univ. of Wyo. Res. Corp., No. 92-CV-0310-B.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • 25 April 1994
    ...law 850 F. Supp. 1524 that a prima facie claim for fraud requires proof of, inter alia, a false representation. See, e.g., Duffy v. Brown, 708 P.2d 433, 437 (Wyo.1985) (citations omitted). A false representation is, by definition, an act that "deviates from probity." Under these circumstanc......
  • Request a trial to view additional results
53 cases
  • Richey v. Patrick, No. 94-50
    • United States
    • United States State Supreme Court of Wyoming
    • 18 October 1995
    ...or competence in obtaining or communicating the information. Restatement, Second, Torts, § 552(1) (emphasis supplied); Duffy v. Brown, 708 P.2d 433, 437 (Wyo.1985). The Richeys did not supply false information to the Patricks. In fact, the Richeys did not supply any information to the Patri......
  • Wlodarczyk v. State, No. 91-20
    • United States
    • United States State Supreme Court of Wyoming
    • 24 June 1992
    ...sentence, is an indeterminate sentence. Duffy v. State, 789 P.2d 821 (Wyo.1990); Duffy v. State, 730 P.2d 754 (Wyo.1986); Duffy v. Brown, 708 P.2d 433 2. Wyo.Stat. § 7-13-301 (1987) 7--a non-convicted probationary assessment. Utilization is subject to consent of the prosecuting attorney as ......
  • Brooks v. Zebre, No. 88-263
    • United States
    • United States State Supreme Court of Wyoming
    • 17 May 1990
    ...v. Bill Anselmi Pontiac-Buick-GMC, Inc., 786 P.2d 855 (Wyo.1990). See also Garner v. Hickman, 709 P.2d 407 (Wyo.1985) and Duffy v. Brown, 708 P.2d 433 (Wyo.1985). This court has further recognized that evidence of any active conduct or words which tend to produce any erroneous impression mi......
  • INTERN. SURPLUS LINES v. Univ. of Wyo. Res. Corp., No. 92-CV-0310-B.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • 25 April 1994
    ...law 850 F. Supp. 1524 that a prima facie claim for fraud requires proof of, inter alia, a false representation. See, e.g., Duffy v. Brown, 708 P.2d 433, 437 (Wyo.1985) (citations omitted). A false representation is, by definition, an act that "deviates from probity." Under these circumstanc......
  • Request a trial to view additional results

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