Johnson v. McPhee

• Decision Date: 08 April 2009
• Docket Number: No. 33966.,33966.
• Court: Idaho Court of Appeals
• Parties: Curtis "Jay" JOHNSON, Plaintiff-Appellant, v. Mike McPHEE and JCAV, LLC, Defendants-Respondents.

210 P.3d 563

147 Idaho 455

Curtis "Jay" JOHNSON, Plaintiff-Appellant, v. Mike McPHEE and JCAV, LLC, Defendants-Respondents.

No. 33966.

Court of Appeals of Idaho.

April 8, 2009.

Review Denied July 8, 2009.

Curtis "Jay" Johnson, Coeur d'Alene, pro se appellant.

Ian D. Smith, Coeur d'Alene, for respondent Mike McPhee.

Stephen B. McCrea, Coeur d'Alene, for respondent JCAV, LLC.

LANSING, Chief Judge.

Curtis "Jay" Johnson appeals pro se from the district court's orders of summary judgment dismissing his claims for breach of contract, negligence, and intentional and negligent infliction of emotional distress. We affirm the dismissal of all claims except that for negligent infliction of emotional distress. As to that cause of action we vacate the summary judgment and remand.

I. BACKGROUND

At various times pertinent to this appeal Johnson was a licensed real estate agent doing business in the Coeur d'Alene area. Mike McPhee was engaged in the business of real estate development involving both residential and commercial properties. Prior to the events underlying this action, Johnson and McPhee were social acquaintances and had worked together on at least one real estate project. JCAV, LLC, was a limited liability corporation also engaged in real estate development. Johnson alleges that, with respect to transactions underlying this lawsuit, McPhee was a principal in or otherwise acting as an agent of JCAV.

Johnson alleges that sometime in 2003, McPhee told Johnson of McPhee's plans to develop a subdivision around a manmade lake and asked Johnson to find land suitable for such a development and to help negotiate the purchase of the property. According to Johnson, McPhee refused to sign a commission agreement, but he and McPhee orally agreed that Johnson would perform these services and would be paid a commission. JCAV ended up purchasing land in coordination with McPhee and used it to develop a subdivision that became known as Radiant Lake Estates. Johnson claims that he located the land that was ultimately purchased for the subdivision and helped to negotiate the purchase on JCAV's and McPhee's behalf, but McPhee and JCAV rebuffed Johnson's repeated demands for payment of his claimed commission. Johnson therefore alleges that McPhee and JCAV breached an oral contract to compensate Johnson for his services.¹

Johnson also claims that interspersed through the period when he was working on the subdivision development and later when he was engaged in conflict with McPhee and JCAV over his claim for payment, he was subjected to verbal abuse by McPhee. He contends that during a period from early 2003 to August 2003, the verbal abuse was mostly sexual in nature and included repeated demands from McPhee to participate in sexual acts as well as a graphically descriptive threat that McPhee would have sex with Johnson's girlfriend. The alleged abuse during this period also included demeaning remarks in which McPhee belittled Johnson's performance as a real estate agent. Johnson's evidence indicates that the abuse resumed in 2005. The described abuse during this later period was less sexual in nature but generally demeaning, such as calling Johnson profane and derogatory names.

Johnson alleges that McPhee's verbal abuse caused Johnson severe emotional distress. Johnson produced evidence that he suffered from post-traumatic stress disorder, was at times rendered nearly immobile due to his emotional state, once fainted while discussing McPhee's alleged abuse with a business acquaintance, and generally suffered "strange chaotic bodily experiences."

In December 2005, Johnson filed this action alleging that JCAV and McPhee breached a contract to compensate him for his services in the subdivision development, that JCAV was negligent in its supervision of McPhee concerning performance of the alleged contract and concerning McPhee's alleged abusive behavior, and that McPhee intentionally and negligently inflicted emotional distress on Johnson, for which JCAV should be held vicariously liable.

Both McPhee and JCAV moved for summary judgment on all of Johnson's claims. The district court granted these motions and Johnson appeals.

II. ANALYSIS

On review of an order granting summary judgment, we apply the same legal standard as that used by the trial court. Friel v. Boise City Hous. Auth., 126 Idaho 484, 485, 887 P.2d 29, 30 (1994); Washington Fed. Sav. & Loan Ass'n v. Lash, 121 Idaho 128, 130, 823 P.2d 162, 164 (1992). Summary judgment may be entered only if "the pleadings, deposition, 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 judgment as a matter of law." Idaho Rule of Civil Procedure 56(c). See also Avila v. Wahlquist, 126 Idaho 745, 747, 890 P.2d 331, 333 (1995); Idaho Bldg. Contractors Ass'n v. City of Coeur d'Alene, 126 Idaho 740, 742, 890 P.2d 326, 328 (1995). When a summary judgment motion has been supported by depositions, affidavits or other evidence, the adverse party may not rest upon the mere allegations or denials of that party's pleadings, but by affidavits or as otherwise provided in the rule, must set forth specific facts showing that there is a genuine issue for trial. I.R.C.P. 56(e). See also Gardner v. Evans, 110 Idaho 925, 929, 719 P.2d 1185, 1189 (1986). In order to survive a motion for summary judgment the plaintiff need not prove that an issue will be decided in its favor at trial; rather, it must simply show that there is a triable issue. G & M Farms v. Funk Irrigation Co., 119 Idaho 514, 524, 808 P.2d 851, 861 (1991). A mere scintilla of evidence or only a slight doubt as to the facts is insufficient to withstand summary judgment; there must be sufficient evidence upon which a jury could reasonably return a verdict for the party opposing summary judgment. Corbridge v. Clark Equip. Co., 112 Idaho 85, 87, 730 P.2d 1005, 1007 (1986); Petricevich v. Salmon River Canal Co., 92 Idaho 865, 871, 452 P.2d 362, 368 (1969). "The requirement of specificity is underscored in cases where the moving defendant has established, prima facie, a defense grounded on the statute of limitations." Tingley v. Harrison, 125 Idaho 86, 89, 867 P.2d 960, 963 (1994) (quoting Theriault v. A.H. Robins Co., Inc., 108 Idaho 303, 306, 698 P.2d 365, 368 (1985)).

When a court considers a motion for summary judgment in a case that would be tried to a jury, all facts are to be liberally construed, and all reasonable inferences must be drawn in favor of the party resisting the motion. G & M Farms, 119 Idaho at 517, 808 P.2d at 854; Sanders v. Kuna Joint School Dist., 125 Idaho 872, 874, 876 P.2d 154, 156 (Ct.App.1994). The rule is different however when, as here, a jury trial has not been requested. In that event, because the court would be the fact-finder at trial, on a summary judgment motion the court is entitled to draw the most probable inferences from the undisputed evidence properly before it, and may grant the summary judgment despite the possibility of conflicting inferences. P.O. Ventures, Inc. v. Loucks Family Irrevocable Trust, 144 Idaho 233, 237, 159 P.3d 870, 874 (2007); Intermountain Forest Mgmt., Inc. v. Louisiana Pacific Corp., 136 Idaho 233, 235, 31 P.3d 921, 923 (2001); Brown v. Perkins, 129 Idaho 189, 191, 923 P.2d 434, 436 (1996). Inferences thus drawn by a trial court will not be disturbed on appeal if the record reasonably supports them. Shawver v. Huckleberry Estates, L.L.C., 140 Idaho 354, 360-61, 93 P.3d 685, 691-92 (2004); Intermountain Forest Mgmt., Inc., 136 Idaho at 236, 31 P.3d at 924.

A. Breach of Contract

Johnson's assertions regarding the claimed oral contract are vague as to when and how it was formed and what terms it included. The only alleged agreement that is sufficiently described in Johnson's deposition testimony and affidavits to constitute a possible basis of a claim is an alleged agreement that Johnson would assist McPhee to identify and procure land suitable for development of McPhee's envisioned subdivision. According to Johnson, he and McPhee orally agreed that Johnson, who was then licensed as a real estate agent, would locate land suitable for the subdivision and would assist McPhee in acquisition of the land by aiding him in negotiating with the owners of the property. Johnson alleges that McPhee told Johnson to first attempt to obtain compensation from the property sellers, but also promised that if the sellers would not pay a commission, McPhee would ensure that Johnson was compensated.² According to Johnson, the commission was to be three percent of the purchase price, or approximately that amount, but McPhee refused to sign a written contract because he wanted to avoid paying a commission to any real estate broker with whom Johnson was affiliated. Johnson contends that throughout these contractual arrangements, McPhee was acting as a principal in JCAV or otherwise as its agent.

The district court granted summary judgment dismissing Johnson's breach of contract claim on the ground that Idaho statutes specify that real estate agency contracts are unenforceable unless they are in writing. Johnson counters that his contract with McPhee and JCAV was a "customer agreement" creating a nonagency relationship, and that such agreements are not subject to the requirement of a writing.

The interpretation of a statute is a question of law over which we exercise free review. Zener v. Velde, 135 Idaho 352, 355, 17 P.3d 296, 299 (Ct.App.2000). We will construe a statute as a whole, and the plain meaning of a statute will prevail unless clearly expressed legislative intent is contrary or unless the plain meaning leads to absurd results. George W. Watkins Family v. Messenger, 118 Idaho 537, 539-40, 797 P.2d 1385, 1387-88 (1990); Zener, 135 Idaho at 355, 17 P.3d at 299. Statutes that are in pari materia, i.e., relating to the same subject, must be construed together to give effect...