Hudson v. Cobbs

Decision Date19 June 1990
Docket NumberNo. 16783,16783
Citation797 P.2d 1322,118 Idaho 474
PartiesWayne D. HUDSON, Plaintiff-Appellant, v. Lyle R. COBBS, individually; and Jack Kennevick, individually; and Cobbs/Kennevick, a general partnership, Defendants-Respondents, and Larry Sundell, Brian Smith, Mark Bazeghi, Kathy Bazeghi, a/k/a Kathy Hampson and Doug Sherwood, all individually; and Webster Investments # 3, an Idaho general partnership, Defendants. Larry SUNDELL, Defendant-Cross-Claimant, v. Abbass BAZEGHI, Mark Bazeghi, and Kathy Bazeghi, a/k/a Kathy Hampson, Cross-Defendants. Brian SMITH, Defendant-Cross-Claimant, v. Mark BAZEGHI and Kathy Bazeghi, a/k/a Kathy Hampson, Cross-Defendants. Lyle R. COBBS, Jack Kennevick and Cobbs/Kennevick, a general partnership, Defendants-Counterclaimants-Cross-Claimants-Respondents, v. Wayne D. HUDSON, Counterdefendant-Appellant, and Abbass Bazeghi, Larry Sundell, Brian Smith, Mark Bazeghi, Kathy Bazeghi and Doug Sherwood, all individuals; and Webster Investments # 3, an Idaho general partnership, Cross-Defendants.
CourtIdaho Supreme Court

Kennedy & Thomas, Boise, for plaintiff-appellant. Fred Kennedy, argued.

Elam, Burke & Boyd, Boise, for defendants-respondents. Todd J. Wilcox, argued.

McDEVITT, Justice.

This case arose out of a complex real estate transaction and a series of agreements between: (1) Mark Bazeghi (the managing general partner acting on behalf of the Webster Investments # 3 general partnership); (2) the Idaho First National Bank; (3) plaintiff Wayne D. Hudson; and (4) defendants Cobbs, Kennevick, and the Cobbs/Kennevick partnership.

The Webster # 3 Partnership ("Webster # 3") owned a tract of land in Boise called the Wildwood Center. This tract of land included the Wildwood Apartments and the Wildwood Office Buildings. On August 1, 1980, Webster # 3 obtained a $580,000 loan from Idaho First to finance construction of the office buildings on the Wildwood property. Interest was payable on July 1, 1981. Under the terms of the loan agreement, the loan was convertible to long-term financing only if the office building was pre-leased to the extent of 12,210 square feet prior to July 1, 1981.

On August 26, 1980, six days after entering into the loan agreement with Idaho First, Webster # 3 entered into an earnest money agreement to sell Wildwood to Wayne Hudson. On October 16, 1980, one day prior to the date set for closing, Webster # 3 and Hudson modified their contract. Webster # 3 assumed direct responsibility to meet the bank's pre-leasing requirements so that the loan could be converted to long-term financing for Hudson. Hudson agreed to assume the note with Idaho First.

On March 17, 1981, in an effort to fulfill Webster # 3's pre-lease requirements, Abbass Bazeghi, Webster # 3's managing partner, procured lease agreements with the Cobbs/Kennevick Partnership for two office suites. 1 Contemporaneous to execution of the leases, Bazeghi and the Cobbs/Kennevick Partnership entered "hold harmless" agreements, whereby Bazeghi agreed to pay the rent on Cobbs's and Kennevick's spaces if Cobbs and Kennevick failed to occupy or sublet the spaces by July 1, 1981. This provision was designed to "save" Cobbs and Kennevick from any payments and other economic detriments that could arise from their execution of the leases. The hold-harmless agreements were not attached to the leases, they were not provided to either the Bank or to Hudson, nor were either advised of their existence. Neither Bazeghi, Cobbs nor Kennevick informed Hudson of the hold harmless agreements.

At trial Cobbs and Kennevick testified that the leases were "straw" leases which they did not intend to be bound by, and that they executed them solely to accommodate Bazeghi in meeting his tenancy obligations. Hudson testified that he was aware that the leases were "accommodation leases" for the purpose of obtaining the desired long term financing and he was aware that Cobbs/Kennevick would not occupy the space, but he was not informed that the lease payments would not be made by Cobbs/Kennevick or by sub-tenants who were yet to be procured.

Based on the lease package submitted by Mark Bazeghi, the Bank approved the long-term financing in July, 1981. On June 24, 1981, Hudson and Webster # 3 entered into an additional agreement. The June 24 agreement recited that long term financing was available but was conditioned upon obtaining lease commitments of $9,983.83 per month for three years. This agreement stated that Webster has met this financing condition by obtaining signed full service leases for 12,213 sq. ft. with total rental of $9,983.83 per month. The lessees under these leases may or may not actually occupy the space for which they are obligated. Webster will guarantee rent payments as per these leases from 7/1/81, until occupied or 6/30/84, whichever comes first....

On July 1, 1981, (the date of the bank deadline for the loan conversion), Webster # 3 (through Bazeghi) and Hudson entered into their final agreement. Webster # 3 agreed to pay rent on any pre-leased space not actually occupied by lessees or sub-lessees. Cobbs and Kennevick were among those who had not occupied or subleased the premises by July 1, 1981.

Pursuant to the June 24 agreement, Webster # 3 managed the building and provided Hudson monthly rental payments. However, Hudson received no payments or accountings for January, February, or March, 1982. As a result, Hudson fired Webster # 3, sued for back rent, and demanded that Cobbs and Kennevick pay their rent. In July, 1982, Hudson was informed that Cobbs/Kennevick contended the leases were not enforceable as against them. At that time he also became aware of the hold-harmless agreements, listed the building for sale, and stopped making payments on the long-term note.

By letter dated August 3, 1982, Wayne Hudson tendered the office building back to Webster # 3 and demanded restitution of all money paid by him. He notified the Webster # 3 partners, Lyle Cobbs, and Jack Kennevick that he had defaulted on the loan and had listed the property for sale with Commercial Brokerage Company.

Hudson was unable to sell the Wildwood Office Building although he made considerable effort to do so. On January 17, 1983, Idaho First National Bank purchased the property at the foreclosure sale. No deficiency was sought.

Hudson filed his original complaint in May 1982, alleging Cobbs, Kennevick and the Cobbs/Kennevick Partnership breached the lease agreements by failing to pay their rent. Hudson also alleged breach of a contract guarantee for failure to pay rent as against Webster # 3 and its partners. A writ of attachment hearing was conducted on July 27, 1982, at which time Hudson first learned of the existence of the hold harmless agreements. Subsequently, Hudson amended his complaint by adding an allegation of fraud. Later, Hudson again amended his complaint alleging that Webster # 3, its partners, and Cobbs and Kennevick violated the Racketeering Act, I.C. §§ 18-7801 thru -05. At trial, Hudson proceeded on four basic causes of action:

1. Common law fraud against Cobbs, Kennevick and Mark Bazeghi.

2. Negligence against Cobbs and Kennevick and the Cobbs/Kennevick partnership.

3. Rescission against Webster Investments # 3 and its individual partners, based upon a material breach of its obligation to meet the pre-leasing requirements for long term financing and its obligation to guarantee lease payments pursuant to the agreement entered on June 24, 1981.

4. Fraud against Webster # 3 and its partners.

Two claims, based on the federal Racketeer Influenced and Corrupt Organizations Act and the Idaho Racketeering Act, were dismissed prior to trial. The trial court dismissed the Idaho Racketeering Act claim in its Summary Judgment Order filed October 29, 1985, prior to trial. While Hudson's federal RICO claim survived summary judgment, he dismissed it prior to trial.

At the close of the jury trial on Hudson's fraud and negligent misrepresentation action, Cobbs and Kennevick moved for a directed verdict. The court denied this motion and submitted the case to the jury on both theories of fraud and negligent misrepresentation. The jury found for Cobbs and Kennevick on the fraud cause of action. However, it found in special verdicts for Hudson on the negligent misrepresentation cause of action against Cobbs, Kennevick and the Cobbs/Kennevick Partnership Cobbs and Kennevick timely moved for a judgment n.o.v. Although the trial court had denied their motion for a directed verdict, it granted the motion for judgment notwithstanding the verdict approximately seven months after entering judgment against the defendants on the jury verdict. The court ruled that negligent misrepresentation was not at present a viable cause of action in Idaho, no Idaho appellate decision having recognized the tort. It further ruled that even if such a tort were recognized in Idaho, the evidence did not support a finding for Hudson on that theory. The court ruled that it had erred in allowing the negligent misrepresentation claim to proceed to the jury. Thereafter, the court denied Hudson's motion for a new trial, and his motion to amend the judgment n.o.v. Hudson appeals.

[118 Idaho 477] and Mark Bazeghi. The jury attributed 25% of the negligence to the Cobbs/Kennevick Partnership, the remaining 75% being attributed to Webster # 3, with zero negligence being attributed to Hudson. The jury awarded Hudson $513,909.09 as compensatory damages, $163,391.98 of which consisted of attorney fees.

I. NEGLIGENT MISREPRESENTATION

In Idaho Bank & Trust Co. v. First Bancorp of Idaho, 115 Idaho 1082, 772 P.2d 720 (1989), the Idaho Supreme Court recognized the tort of negligent misrepresentation in the area of accountants' liability to non-contractual third parties. In reaching its decision, the Supreme Court first noted that the New York, Court of Appeals, in Ultramares Corp. v. Touche, 255 N.Y. 170, 174...

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  • Vanderford Co., Inc. v. Knudson
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    ...conclusion to that of the jury. Horner v. Sani-Top, Inc., 143 Idaho 230, 233, 141 P.3d 1099, 1102 (2006) (citing Hudson v. Cobbs, 118 Idaho 474, 478, 797 P.2d 1322, 1326 (1990)). The awarding of attorney fees under I.C. 12-120(3) is reviewed for an abuse of discretion. Fox v. Mountain West ......
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    ...law, in moving for a j.n.o.v., the moving party admits the truth of all of the non-moving party's evidence. Hudson v. Cobbs, 118 Idaho 474, 478, 797 P.2d 1322, 1326 (1990). Once an expert's opinion is admitted, it is up to the trier of fact to weigh the opinion against any conflicting testi......
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    ...could properly find for the non-moving party. Curtis v. Firth, 123 Idaho 598, 605, 850 P.2d 749, 756 (1993); Hudson v. Cobbs, 118 Idaho 474, 478, 797 P.2d 1322, 1326 (1990); Quick v. Crane, 111 Idaho 759, 763-764, 727 P.2d 1187, 1191-92 (1986). "Substantial evidence" is more than a mere sci......
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    ...Handbook of the Law of Torts § 92 at 613 (4th ed.1971)). Id. at 350–511, 179 P.3d at 313–14 (emphasis added).In Hudson v. Cobbs, 118 Idaho 474, 797 P.2d 1322 (1990), this Court similarly emphasized that the source of a duty in tort is not found within the terms of the parties' contract. The......
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