Johnson v. Soulis

Decision Date21 November 1975
Docket NumberNo. 4458,4458
Citation542 P.2d 867
PartiesA. J. JOHNSON, Appellant (Plaintiff below), v. Nick SOULIS and Catherine Soulis, Appellees (Defendants below).
CourtWyoming Supreme Court

Terry W. Mackey of Urbigkit, Moriarity, Halle & Mackey, Cheyenne, for appellant.

Bard Ferrall, Cheyenne, for appellees.

Before GUTHRIE, C. J., and THOMAS and ROSE, JJ.

THOMAS, Justice.

A. J. Johnson brought this action in the district court against Nick Soulis and Catherine Soulis seeking relief in the form of recission of a sale of an apartment house, damages for loss of income, and punitive damages, and asserting as grounds for such relief fraud and undue influence. A. J. Johnson and Nick Soulis were the active participants in the transaction, and Catherine Soulis appears as a party only because she was named as one of the grantees in the deed to the apartment house. The parties hereafter will be referred to simply as Johnson and Soulis.

In his Amended Complaint Johnson set forth the following allegations of fraud:

'3. That during the course of such negotiations, defendant Nick Soulis made representations to plaintiff, representing that economic conditions were very bad, representing that he would provide plaintiff with an income of $700.00 per month, that he would pay the outstanding mortgage against the premises, that he would permit plaintiff to live in the premises at the rate of $123.00 per month, represented to plaintiff that he would not need an attorney or real estate broker, all of which representations were false, fraudulent, and upon which representations plaintiff relied to his detriment.

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'13. That defendant Nick Soulis willfully and deliberately misled plaintiff by representing to plaintiff that he could reside on the above described real property for his lifetime at a rental amount of $123.00 per month, that plaintiff would receive the sum of $700.00 per month free and clear of any and all other obligations relating to said real property, that economic conditions were such that the value of said real property was decreasing and would not increase, and the purpose of such action on the part of defendant Nick Soulis was to obtain the aforesaid real property at a price which was far below the value of said real property.'

Johnson alleged undue influence in the following language:

'9. That during the period of negotiations prior to sale by plaintiff to defendants, defendant Nick Soulis did by visitation to plaintiff, by advising plaintiff about economic conditions, by representations of defendant Nick Soulis' economic acumen, by representations that plaintiff would not need a real estate broker or independent attorney and other words, deeds and acts, unduly influenced plaintiff to plaintiff's detriment.'

The events out of which this case arose had their inception in March of 1972 when Soulis and a business associate saw a realtor's advertisement for the sale of an apartment house. Without contacting the realtor they went to see the property, and at that time they discussed the sale of the apartment house with Johnson who identified himself as the owner. There were at least six other meetings at Johnson's apartment house between Soulis and Johnson after this initial contact. In addition there were telephone conversations between Soulis and Johnson which related to the sale of the apartment house. This series of contacts and negotiations continued for more than a year until sometime in May of 1973. Then in a telephone conversation Johnson informed Soulis that an owner of some similar property adjacent to Johnson's had told Johnson he would give Johnson $97,500 and better for Johnson's property. Soulis then went to Johnson's apartment building and made a final offer of $100,000. There was a discussion relative to the specific terms of the transaction, and Soulis suggested that Johnson select an attorney to prepare the requisite instruments to formalize the transaction. Johnson did not have an attorney, and indicated he had no preference, so Soulis selected the attorney.

On May 31, 1973, a 'Standard Purchase Offer, Acceptance and Receipt' was executed by Johnson and Soulis providing for the sale of the apartment house by Johnson to Soulis. The purchase price established by the agreement was $100,000 to be paid by a $500 deposit, a $19,500 bank draft payable at the time of closing, the assumption by Soulis of an existing loan with the Prudential Insurance Company of America, with a balance of $45,246.92; and a note for the balance of the purchase price from Soulis to Johnson with interest at seven per cent payable monthly over a thirty-year period. Following the execution of this contract Johnson on July 1, 1973 executed a warranty deed to Soulis, and at the same time a note and mortgage were executed by Soulis in favor of Johnson in the principal amount of $34,957.05 with monthly payments of $270.78. The monthly payment was adjusted to provide for a payout over a twenty-year period instead of the thirty-year period provided in the contract because Johnson had asserted at the time the contract was executed that he was to receive $700 per month, and he then was informed by the attorney that the $700 per month was to make the payments on both the Prudential mortgage and the balance owed to Johnson.

Prior to the preparation of the 'Standard Purchase Offer, Acceptance and Receipt,' Johnson and Soulis had reached an understanding that Johnson could continue to reside in his apartment at a rental of $123 per month, but that in addition he would be expected to maintain the lawn and look after the place, the contemplated rental for the other tenants being $150 per month. About mid-July Soulis advised Johnson that his rent, beginning August 1, 1973, would be $150 per month because it appeared to Soulis that Johnson was not keeping up the lawn. On August 22, 1973, Johnson, through counsel, demanded reconveyance of the apartment house and tendered the return of the purchase price and the down payment. The reasons stated for the demand, while somewhat detailed, were essentially fraud and undue influence.

In October this action was filed, and Soulis answered the Amended Complaint, denying the averments of fraud and undue influence. A pre-trial conference was held which did not substantially narrow the issues posed by the pleadings. The depositions of both Soulis and Johnson then were taken in accordance with the Wyoming Rules of Civil Procedure, after which Soulis filed a Motion for Summary Judgment of Defendants. Following the hearing on Soulis' motion the district court entered the Order Granting Motion for Summary Judgment and Judgment from which Johnson has appealed.

In this Court Johnson contends that it was inappropriate for the district court to grant the Motion for Summary Judgment of Defendants because there were genuine issues as to material facts requiring that the case be tried. In his brief and argument Johnson asserts a genuine issue of material fact with respect to his claim that he was to receive $700 per month from Soulis if he sold the apartment house to him. Johnson also refers to other events as to which the record fails to disclose any issue with respect to the facts, including Johnson's reluctance to sell to Soulis after many meetings; Soulis' arrangements for an attorney who prepared the documents involved in the transaction; Johnson's raising of his question as to the $700 monthly figure which resulted in the mortgage term being reduced from thirty to twenty years; the arrangement between Soulis and Johnson for Johnson to remain in his apartment at a rental less than other tenants which was terminated within a month after the sale; and the receipt by Soulis of some of Johnson's personal property without payment to Johnson. With respect to these latter assertions Johnson's position must be that the district court incorrectly applied the law in reaching its conclusion that Soulis was entitled to judgment as a matter of law.

These contentions do not encompass all of the allegations of fraud and undue influence set forth in Johnson's Amended Complaint, and we treat the other allegations as waived or abandoned. Western Standard Uranium Company v. Thurston, Wyo., 355 P.2d 377 (1960); and Dondict v. Ryan, 79 Wyo. 231, 335 P.2d 792 (1959). We cannot consider further the matter of the personal property Soulis obtained from Johnson since that was not pleaded as a basis for either fraud or undue influence, nor could it be because it related to events occurring after the contract was executed, and for these reasons it could not be material in resolving the issues of this case. Waters v. Trenckmann, Wyo., 503 P.2d 1187 (1973).

The object of a motion for summary judgment is to separate what is formal or pretended in denial or averment from what is genuine and substantial so that only the latter may subject a suitor to the burden of a trial, the purpose being to eliminate formal trials where only questions of law are involved. Vipont Mining Co. v. Uranium Research and Development Co., Wyo., 376 P.2d 868 (1962); and Carter v. Davison, Wyo., 359 P.2d 990 (1961). The formal judgment should be granted only where it is clear that no issue of material fact is involved, and where inquiry into the facts is not desirable to clarify the application of the law. Forbes Co., Inc. v. MacNeel, Wyo., 382 P.2d 56 (1963). Where there are genuine issues of material fact the summary judgment should not be granted. Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350 (1974); Kover v. Hufsmith, Wyo., 496 P.2d 908 (1972); McClure v. Watson, Wyo., 490 P.2d 1059 (1971); Low v. Sanger, Wyo., 478 P.2d 60 (1970); Godard v. Ridgway, Wyo., 445 P.2d 757 (1968). On the other hand, the whole purpose of the procedural technique of a summary judgment would be defeated if cases could be forced to trial by the mere assertion that a genuine issue of material fact exists. Maxted v. Pacific Car & Foundry Company, Wyo., 527 P.2d 832 (1...

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