Fericks v. Lucy Ann Soffe Trust, 20030073.

• Decision Date: 19 October 2004
• Docket Number: No. 20030073.,20030073.
• Citation: 100 P.3d 1200,2004 UT 85
• Parties: John A. Fericks and C. Kurt Hoffman, Plaintiffs and Appellants, v. Lucy Ann Soffe Trust; Carlos R. Soffe, Vaughn C. Soffe, and Shirla S. Holt, as Trustees of the Lucy Ann Soffe Trust; Pentad Properties, Inc.; Joe Goodman; and John Doe Buyer, Defendants and Appellees.
• Court: Utah Supreme Court

2004 UT 85

100 P.3d 1200

John A. Fericks and C. Kurt Hoffman, Plaintiffs and Appellants, v. Lucy Ann Soffe Trust; Carlos R. Soffe, Vaughn C. Soffe, and Shirla S. Holt, as Trustees of the Lucy Ann Soffe Trust; Pentad Properties, Inc.; Joe Goodman; and John Doe Buyer, Defendants and Appellees.

No. 20030073.

Supreme Court of Utah.

Filed October 19, 2004.

This opinion is subject to revision before final publication in the Pacific Reporter.

Russell C. Fericks, Zachary E. Peterson, Salt Lake City, for plaintiffs.

Jeffrey W. Shields, Salt Lake City, for defendants.

DURRANT, Justice:

¶1 Plaintiffs, the prospective buyers under a real estate purchase contract, failed to tender a required earnest money payment by the date specified in the contract, whereupon the sellers cancelled the contract. Plaintiffs alleged that oral representations made by the realtors misled them into believing that they had additional time in which to make the required payment. Plaintiffs brought claims for breach of contract against the sellers, as well as tort claims against the realtors for fraudulent misrepresentation, interference with contract, and breach of common law and statutory duties to third parties. After determining that the realtors' alleged oral modification to the contract was unenforceable under the statute of frauds, the district court, on a motion for summary judgment, dismissed plaintiffs' contract claims against the sellers and tort claims against the realtors. Plaintiffs appeal only the dismissal of their tort claims. We reverse.

BACKGROUND

¶2 "In reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. We state the facts of this case accordingly." Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 2, 70 P.3d 904 (citation and internal quotations omitted).

¶3 On February 1, 2002, the plaintiffs, C. Kurt Hoffman ("Hoffman") and John A. Fericks ("Fericks") (collectively the "Buyers") entered into a Real Estate Purchase Contract ("REPC") for the purchase of property located in Salt Lake County. Under the REPC the Buyers agreed to purchase the property from defendants Lucy Anne Soffe Trust and its trustees (collectively the "Sellers") for $313,000. Defendant Joe Goodman ("Goodman"), an employee of the defendant real estate brokerage Pentad Properties, Inc. ("Pentad"), acted as the Sellers' real estate agent in the transaction. The Buyers tendered an initial $5,000 earnest money payment at the time they entered into the REPC. The REPC required a second, non-refundable $10,000 earnest money payment due on April 6, 2002.

¶4 On March 26, 2002, Hoffman contacted Goodman to request a thirty-day extension to the due date for the second earnest money payment. At that time, Goodman represented that he would talk to the Sellers about the extension but that Hoffman should "consider it done," and that Goodman would "take care of preparing the extension." When the Buyers had not received the written extension by April 5, 2002, the day before the second earnest money payment was due, Hoffman again contacted Goodman to inquire about the extension. Goodman apologized for not having obtained the written extension and represented that he would get it done that day. Following this conversation, Goodman failed to notify the Buyers before the payment deadline that the Sellers had chosen not to grant the extension. The Buyers, relying on Goodman's representations that the written extension would be secured, failed to make the second earnest money payment on April 6, 2002.

¶5 On April 8, 2002, Goodman and Pentad (collectively the "Realtors") notified the Buyers that the deadline for the second earnest money agreement had expired and that the Sellers were voiding the REPC. On April 18, 2002, Fericks contacted the Sellers directly to discuss the cancellation. During that conversation, Mr. Soffe, a trustee, informed Fericks that Goodman had never requested an extension on behalf of the Buyers. Additionally, Goodman represented in a phone conversation with Fericks on April 18, 2002, that shortly after the Buyers requested an extension, an alternate buyer made a better offer on the property for a higher price and an earlier closing date. This information led the Buyers to believe that, in order to receive a higher commission, Goodman had intentionally induced them to breach the REPC, thereby voiding their interest in the property.

¶6 When the Sellers could not be persuaded to perform under the REPC, the Buyers filed a complaint against the Realtors and the Sellers, alleging six causes of action. The first three causes of action, arising in tort, were claims against the Realtors for (1) breach of common law and statutory standards of care with respect to third parties, (2) intentional interference with contractual and economic interests, and (3) fraudulent misrepresentation. The second three causes of action, arising out of breach of contract, were claims against the Sellers seeking specific performance or damages under the REPC and a declaratory judgment against the alternate buyer of the property.

¶7 The Sellers and the Realtors (collectively the "Defendants") made a joint motion for summary judgment. They argued that the oral modification granting an extension of time to tender the second earnest money payment was unenforceable as a matter of law because it had not been reduced to writing as required by the statute of frauds. Due to the unenforceability of the oral modification, the Defendants argued that all causes of action, including the tort claims against the Realtors, should be dismissed with prejudice and on the merits. The district court agreed with the Defendants and granted summary judgment on August 19, 2002, dismissing all claims for the "reasons stated on the record" without making independent findings of fact or law.

¶8 The Buyers submitted a motion objecting to the dismissal of their tort claims against the Realtors,¹ arguing that the tort causes of action are independent of the contract claims and do not require an enforceable oral modification. The district court disagreed and affirmed the summary judgment dismissal of the tort claims. In so doing, the district court agreed with the Defendants' argument that, because the statute of frauds had rendered the oral modification unenforceable,, evidence concerning the oral modification could not be used to support the Buyers' tort claims.

¶9 Buyers appeal the district court's dismissal of the three tort causes of action against the Realtors. We have jurisdiction pursuant to Utah Code section 78-2-2(3)(j) (2002).

STANDARD OF REVIEW

¶10 Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c). Because summary judgment presents only questions of law, we give no deference to the district court's legal decisions and review them for correctness. Higgins v. Salt Lake County, 855 P.2d 231, 235 (Utah 1993).

ANALYSIS

I. DISMISSAL OF BUYERS' TORT CLAIMS

¶11 The Buyers argue that "[a]fter determining the statute of frauds made the oral modification [to the REPC] unenforceable, the [district] court erred in disposing of the remainder of [the Buyers'] claims which did not implicate the statute of frauds or require enforcement of the oral modification to succeed." The Buyers contend that the three tort causes of action for fraudulent misrepresentation, breach of common law and statutory duties, and intentional interference with contract arise out of the Realtors' misconduct and not out of the contract. The Buyers assert that, while evidence of the oral modification is relevant to the claims, the modification need not actually be enforceable for the tort claims to survive. "In fact," the Buyers point out, "if the oral agreement had been enforced and the property was sold to [the Buyers], [the Buyers] would have no damages on any of these claims against [the Realtors]."

¶12 The Realtors counter that because all of the Buyers' tort causes of action are based in fraud, the oral modification must be enforceable to support the claims. The Realtors rely on language from cases out of this court and the court of appeals stating that "[f]raud, generally, cannot be predicated upon the failure to perform a promise or contract which is unenforceable under the statute of frauds, for the promissor has not, in a legal sense, made a contract; and, therefore, he has the right, both in law and equity, to refuse to perform." Stangl v. Ernst Home Ctr., Inc., 948 P.2d 356, 362 (Utah Ct. App. 1997) (citing McKinnon v. Corp. of Pres. of Church of Jesus Christ of Latter-day Saints, 529 P.2d 434, 436 (Utah 1974)). In interpreting this language, the Realtors argue, in essence, that Utah has adopted a per se, categorical rule barring any action in contract or tort when the claim relies on evidence of a contract that is found to be unenforceable under the statute of frauds. The case law cited by the Realtors does not support such an interpretation, however, since those cases involve facts very different from those presented in the case at bar.

¶13 In both McKinnon and Stangl, the plaintiffs, who were parties to oral agreements deemed void under the statute of frauds, sought to enforce the oral agreements against the defendants, who were the other parties to the oral contracts. McKinnon, 529 P.2d at 436; Stangl, 948 P.2d at 359. The plaintiffs in both cases argued that because they had acted in reliance on the defendants' oral representations, the defendants should be estopped from asserting the statute of frauds as a defense. McKinnon, 529 P.2d at 436; Stangl, 948 P.2d at 360.

¶14 In rejecting this assertion in McKinnon, we explained that "the doctrine of promissory estoppel ha[s] been extended, in a limited form, to those cases concerned with . . . the [s]tatute of [f]rauds, where the...