Reistroffer v. Person, 930178
| Decision Date | 07 January 1994 |
| Docket Number | No. 930178,930178 |
| Parties | Jon A. REISTROFFER, et al. v. Lyndia M. PERSON. Record |
| Court | Virginia Supreme Court |
E.E. Saunders, Jr., for appellants.
John Holland Foote (Thomas W. Smith, III, Michael S. Dingman, Hazel & Thomas, on brief), for appellee.
Present: CARRICO, C.J., COMPTON, STEPHENSON, WHITING, HASSELL and KEENAN, JJ., and COCHRAN, Retired Justice.
In this appeal, we consider whether the trial court erred in (1) ruling, by way of sustaining a demurrer, that an agency relationship had not been alleged, (2) ruling that the purchaser properly canceled a contract for the sale of real property, and (3) awarding attorney's fees.
Jon A. and Linda L. Reistroffer filed a motion for judgment against Lyndia M. Person, seeking $50,000 in damages for the breach of a real estate sales contract. Person demurred, claiming that the motion for judgment alleged facts which established that Person had properly canceled and terminated the contract. The trial court sustained the demurrer, dismissed the motion for judgment with prejudice and entered judgment in favor of Person, and awarded Person $1,200 in attorney's fees. The Reistroffers appeal.
The facts are taken from the motion for judgment and the contract and other documents attached to and made a part of the motion for judgment. The Reistroffers own certain real property described as Lot 27, Section 2, Georgetown Park Subdivision, in Prince William County. The property was subject to covenants that created a homeowners' association (HOA), and the sale was subject to the provisions of the Virginia Property Owners' Association Act, Code § 55-508 et seq. (the Act).
The Reistroffers retained John Ehlinger, a realtor with Remax Metro, Inc., to sell the property. On February 7, 1992, the Reistroffers and Person executed the contract whereby the Reistroffers agreed to sell, and Person agreed to purchase, the property. The contract stated that "[t]he Seller and the Purchaser confirm that in connection with the transaction under this Contract, the Listing Company, the Selling Company and its salespersons, are acting on behalf of the Seller as Seller's agent." The contract also provided that "unless amended in writing, [this Contract] contains the final and entire agreement of the parties and the parties shall not be bound by any terms, conditions, oral statements, warranties or representations not herein contained." The contract further required the Reistroffers to provide Person with a copy of the HOA documents.
Person also signed another document dated February 7, 1992, entitled "Purchaser's Request/Waiver for Property Owners' Association Disclosure Packet." By this document, Person, pursuant to the provisions of the Act, requested that the Reistroffers "promptly obtain and furnish to [Person] the disclosure packet." Person also requested that the Reistroffers "deliver the disclosure packet to John Ehlinger--12477 Dillingham Sq., Lake Ridge, VA 22192." This request was effected by inserting Ehlinger's name and address in a blank space provided in the form.
Shortly after February 7, 1992, Ehlinger received the disclosure packet and informed Person that the packet was available for her review at his office. Although Ehlinger repeatedly reminded Person of his receipt of the packet, Person did not pick up the packet until May 4, 1992. On May 6, 1992, Person notified the Reistroffers that she was canceling the contract pursuant to paragraph 14 of the contract. Paragraph 14 is consistent with Code § 55-511(C), a part of the Act, which provides, in pertinent part, that "[t]he purchaser may cancel the contract ... (ii) within three days after receiving the association disclosure packet if the association disclosure packet ... is hand delivered."
The Reistroffers contend that the trial court erred in sustaining Person's demurrer because the motion for judgment and exhibits attached thereto, when read in the light most favorable to them, contain facts and reasonable inferences deducible therefrom sufficiently alleging that Person designated Ehlinger her agent for the purpose of receiving the HOA documents. Thus, they assert, the statutory three-day period had long since expired when Person gave notice of cancellation.
Person, on the other hand, contends that the trial court correctly sustained her demurrer because the motion for judgment and its exhibits show conclusively that Ehlinger was not her agent. Therefore, she asserts, her notice of cancellation was timely.
Agency is a fiduciary relationship resulting from one person's manifestation of consent to another person that the other shall act on his behalf and subject to his control, and the other person's manifestation of consent so to act. Allen v. Lindstrom, 237 Va. 489, 496, 379 S.E.2d 450, 454, cert. denied, 493 U.S. 849, 110 S.Ct. 145, 107 L.Ed.2d 104 (1989); Nuckols v. Nuckols, 228 Va. 25, 35, 320 S.E.2d 734, 740 (1984); Murphy v. Holiday Inns, Inc., 216 Va. 490, 492, 219 S.E.2d 874, 876 (1975); Raney v. Barnes Lumber Corp., 195 Va. 956, 966, 81 S.E.2d 578, 584 (1954). The power of control is an important factor in determining whether an agency relationship exists. Texas Company v. Zeigler, 177 Va. 557, 564, 14 S.E.2d 704, 706 (1941).
The question of agency vel non is one of fact for the fact finder unless the existence of an agency relationship depends upon unambiguous written documents or undisputed facts. Drake v. Livesay, 231 Va. 117, 121, 341 S.E.2d 186, 189 (1986). Moreover, the party alleging an agency relationship has the burden of proving it. Lindstrom, 237 Va. at 496, 379 S.E.2d at 454.
In sustaining Person's demurrer, the trial court ruled, as a matter of law, that Ehlinger was not Person's agent to receive the HOA documents. We disagree.
We think the motion for judgment and exhibits made a part thereof alleged sufficient facts to withstand a demurrer on the question of agency. Thus, the trial court erred in ruling that the Reistroffers' motion for judgment established, as a matter of law, that Ehlinger was not Person's agent. Conversely, we do not think, as the Reistroffers assert, that the separate document signed by Person on February 7, 1992, established, as a matter of law, that Ehlinger was Person's agent. We...
To continue reading
Request your trial
-
America Online v. National Health Care Discount
...578, 584 (1954)); accord State Farm Mut. Auto. Ins. Co. v. Weisman, 247 Va. 199, 203, 441 S.E.2d 16, 19 (1994); Reistroffer v. Person, 247 Va. 45, 48, 439 S.E.2d 376, 378 (1994). The party who alleges an agency relationship has the burden of proving it. Weisman, 247 Va. at 203, 441 S.E.2d a......
-
Pitchford v. Oakwood Mobile Homes, Inc.
...contract if the parties manifest the intent that the portions of the contract can survive on their own. See e.g., Reistroffer v. Person, 247 Va. 45, 439 S.E.2d 376 (1994) (provision regarding attorney's fees was severable and survived nullified contract); Vega v. Chattan Assoc., 246 Va. 196......
-
Saiyed v. Council On American-Islamic Relations Action Network, Inc.
...omitted). “The power of control is an important factor in determining whether an agency relationship exists.” Reistroffer v. Person, 247 Va. 45, 439 S.E.2d 376, 378 (1994) ; see also Allen v. Lindstrom, 379 S.E.2d at 454 (“The power of control is the determining factor in ascertaining the a......
-
Browne v. Kline Tysons Imports, Inc.
...main contract if the parties manifest the intent that such portions of the contract can survive on their own. See Reistroffer v. Person, 247 Va. 45, 439 S.E.2d 376, 379 (1994); Vega v. Chattan Associates, Inc., 246 Va. 196, 435 S.E.2d 142, 143 (1993). Severing a clause from a contract const......