Kvenild v. Taylor

• Decision Date: 11 May 1979
• Docket Number: No. 5001,5001
• Parties: J. R. KVENILD, CFC Realtors, and C. Jack Minter, Appellants (Defendants), v. Daryl W. TAYLOR, Appellant (Third Party Defendant), v. Phillip H. LAVOIE and Marilyn J. Lavoie, husband and wife, Appellees(Plaintiffs), v. Bruce H. McMILLAN, and Dorothy H. Tanz, Administratrix of the Estate of Virginia L. Barrett, Deceased, Appellees (Defendants), v. William BARRETT, Beverly Barrett, James L. Barrett, Rosalie Barrett, Appellees(Third Party Defendants).
• Court: Wyoming Supreme Court

Page 972

594 P.2d 972

J. R. KVENILD, CFC Realtors, and C. Jack Minter, Appellants (Defendants), v. Daryl W. TAYLOR, Appellant (Third Party Defendant), v. Phillip H. LAVOIE and Marilyn J. Lavoie, husband and wife, Appellees(Plaintiffs), v. Bruce H. McMILLAN, and Dorothy H. Tanz, Administratrix of the Estate of Virginia L. Barrett, Deceased, Appellees (Defendants), v. William BARRETT, Beverly Barrett, James L. Barrett, Rosalie Barrett, Appellees(Third Party Defendants).

No. 5001.

Supreme Court of Wyoming.

May 11, 1979.

John C. Brackley and W. A. Smith, Lander, signed brief, for appellants Kvenild, CFC Realtors, Minter and Taylor.

Robert O. Anderson and William V. Eichelberger, Riverton, signed brief, for appellees Lavoies.

Richard I. Leedy, Riverton, signed brief, for appellees McMillan.

Donald P. White, Riverton, signed brief, on behalf of appellees Barretts.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

RAPER, Chief Justice.

The appellants-defendants J. R. Kvenild, Daryl W. Taylor, and C. Jack Minter, doing business as CFC Realtors (defendants), appeal from a judgment of the district court in which the appellees-plaintiffs Phillip and Marilyn Lavoie (Lavoies), ¹ were awarded damages, because the defendants tortiously interfered with the Lavoies' contractual rights to buy a certain piece of property. The judgment also awarded attorney's fees of $4,500.00 each to two other parties appellees-defendants Bruce H. McMillan (McMillan) ² and Virginia L. Barrett (Barrett) ³ to be paid by the defendants. In addition, certain other costs were taxed to the defendants. ⁴ The defendants assert that the district court's judgment is erroneous because:

(1) The decision is not supported by the evidence submitted at trial and is, in fact, contrary to the evidence;

(2) The district court created rights in the Lavoies that cannot exist under the Statute of Frauds (§ 16-1-101, W.S.1977);

(3) The district court awarded attorney's fees to certain parties to be paid by the defendants for which there is no statutory or other legal basis.

We will reverse with directions, except as to the quiet title and rental claims of McMillan which we will not disturb.

The facts of this case are not complex, nor are the legal principles that govern its disposition. Procedurally the case became snarled to a degree that can only be described as chaotic. The factual situation giving rise to this litigation commenced in 1972. This litigation commenced in February, 1975, and it was not disposed of until over three years later.

The Lavoies executed a "Standard Purchase Offer, Acceptance and Receipt" on December 4, 1972, offering to buy, for a consideration of $16,200.00, a house located in Riverton, owned by Barrett and offered for sale through the defendant Kvenild, real estate agent for CFC Realtors, an unincorporated firm composed of Kvenild, Taylor and Minter. The Lavoies paid down $300.00 as earnest money. The Lavoies took possession of the property pursuant to a provision in their written and executed standard purchase-offer contract which allowed them to rent the property at the rate of $130.00 per month, pending anticipated closure of the sale. Other pertinent provisions of the contract are: (1) buyers to pay balance at closing; (2) buyers to apply for a conventional loan in the amount of $14,550.00; (3) if the property or buyers fail to qualify for a loan in the amount of $14,550.00, the earnest deposit money to be refunded and contract to become null and void; (4) actual possession, or constructive possession by assignment of the seller's estate in existing leases, to be delivered to buyer at closing on or before March 1, 1973. The Lavoies hoped to realize enough money from the sale of a home they owned in Colorado to make the rest of their down payment on the premises. However, the sale of that property produced nothing with which they could make the down payment. An attempt was made to get a V.A. loan, but the Lavoies did not qualify because they had an outstanding V.A. loan on the Colorado home, assumed by the buyer. Mr Lavoie did not want to apply for an F.H.A. loan. The Lavoies did not apply for a conventional loan within the March 1, 1973 deadline of their purchase offer. The $300.00 earnest money was never returned to the Lavoie and eventually they conceded that this amount had been forfeited by them.

The Lavoies continued to occupy the house during 1973. In the Fall of 1973, Barrett stopped by the house and talked to the Lavoies because she was concerned about their intentions. She was afraid that they would vacate the premises before winter and leave her without tenants and she would be stuck with the utilities for the winter months. The Lavoies assured Mrs. Barrett that they would stay through the winter and that they were still interested in buying the property and were saving money for that purpose. The Lavoies made a number of minor repairs and improvements which they claimed as a part of their damages. Barrett disclaimed knowledge of these repairs and improvements, with the exception of replacement of a door and repair to a water line for which Barrett provided a backhoe and pipe, and the Lavoies provided the labor. The Lavoies occupied the premises during the Winter of 1973-1974 and, in the Spring of 1974, the subject of sale of the property was again broached to the Lavoies by the defendants. Defendant Kvenild informed the Lavoies, Barrett was anxious to proceed with the sale of the house and it would have to be reappraised because of inflated value since December, 1972. The Lavoies contacted Barrett about this price-increase matter, and Mrs. Barrett orally and informally advised she would sell the house to them at the original $16,200.00 price. The defendants, still acting as her agent, then proceeded to push the sale to a closing which they were to handle for Barrett. The Lavoies negotiated for a loan, eventually approved.

About that time, however, the Lavoies discovered termites or some wood-eating insect, in part of the house. Extermination was arranged by the Lavoies and the defendants in something of a joint effort and provided at the cost of Barrett. The Lavoies also asked that an examination of the house be made to ensure there was no structural damage and, if there was such damage, they would insist that Barrett bear the cost of such repair. The Lavoies stated to the defendant Kvenild that they did not want to buy a house that was going to fall down around their ears. A carpenter was never found to do such a structural inspection, and Barrett told defendants that in any case she would not bear the expense of such a thing.

At about that point, McMillan offered to buy the property for $17,600.00. The defendants took the offer to Barrett. She accepted, stating that she had gone as far as she would go with the Lavoies. When the Lavoies found out that the house had been sold, they sought legal advice. Two lawyers to whom they talked were too busy to accept the case. Eventually they talked with John R. Hursh, a Riverton lawyer. Hursh contacted the defendants and discussed the factual situation with defendant Kvenild. On August 1, 1974, a letter, written by Hursh, was mailed to all parties to this house-selling deal and suggested that it should be resolved before any closing took place in order to avoid litigation. The defendants decided there was no legal merit to the Lavoies' claim to the house, McMillan was so informed and the closing took place.

The Lavoies filed their complaint which initiated this litigation on February 21, 1975. Numerous counterclaims and cross-claims were filed by the various named defendants. Parties were alternatively dismissed from the suit and rejoined and lengthy continuances granted. The matter finally came on for trial to the district court without a jury on August 22, 1977. After three days of trial, the court set oral arguments for September 1, 1977. These were heard, the court then took the case under advisement and, on March 7, 1978, a written judgment was entered.

Defendants assert that the evidence does not support the judgment rendered by the district court. We agree. We approach the issue of the sufficiency of the evidence mindful of our often-repeated rule that we cannot substitute our judgment for that of the trial court. True v. Hi-Plains Elevator Machinery, Inc., Wyo.1978, 577 P.2d 991. The findings of the trial court must be sustained unless clearly erroneous or contrary to the great weight of evidence. True v. Hi-Plains Elevator Machinery, supra. However, findings and judgment which are unsupported by the evidence, contrary to the evidence, or obviously against the great weight of evidence, may not stand. Barber v. State Highway Commission, 1959, 80 Wyo. 340, 342 P.2d 723.

We view the pleadings and decision rendered in this case as sounding exclusively in tort, specifically tortious interference with contract. The Lavoies' complaint makes frequent mention of a "breach" by Barrett, and the matter of "breach" is much discussed in the other proceedings and trial. However, it is couched in a manner so as to leave us to understand that the only real issue presented to the trial court, and the only issue decided, was one relating to a tort. We perceive no issue as to breach of contract other than that the Lavoies claimed that Barrett breached her contract in the process of tortiously interfering with it, a hybrid concept unsupported by any authority we can find. This is all to say that the Lavoies did not seek a remedy sounding in contract and throughout the proceedings and trial the case was so treated by the district judge. We will view the appeal in that light as well.

While the Lavoies did not seek a remedy for breach of contract, nor was the case tried on that basis, we will briefly discuss some of the issues which relate to the question of breach for the purpose of clarifying the result reached here. The trial court made no specific...