Reynolds v. Tice

• Decision Date: 21 May 1979
• Docket Number: 5043,Nos. 4963,s. 4963
• Citation: 595 P.2d 1318
• Parties: Montie M. REYNOLDS and Sally J. Reynolds, Appellants (Plaintiffs below), v. Mary G. TICE, Appellee (Defendant below), Charles T. Tice (Defendant below). Charles T. TICE, Appellant (Defendant below), v. Montie M. REYNOLDS and Sally J. Reynolds, Appellees.
• Court: Wyoming Supreme Court

Page 1318

595 P.2d 1318

Montie M. REYNOLDS and Sally J. Reynolds, Appellants (Plaintiffs below), v. Mary G. TICE, Appellee (Defendant below), Charles T. Tice (Defendant below).

Charles T. TICE, Appellant (Defendant below), v. Montie M. REYNOLDS and Sally J. Reynolds, Appellees.

Nos. 4963, 5043.

Supreme Court of Wyoming.

May 21, 1979.

Rehearing Denied June 19, 1979.

Robert N. Williams, Jackson, and P. Richard Meyer, of Meyer, Vucichevich & Cimala, P. C., Phoenix, Ariz., appeared on briefs, and Mr. Meyer appeared in oral argument on behalf of Montie M. Reynolds and Sally J. Reynolds.

Larry L. Jorgenson, Jackson, and Phillip A. Gillis, of Gillis, Louisell & Berg, Detroit, Mich., appeared on briefs, and Mr. Gillis appeared in oral argument for Charles T. Tice in Case No. 5043.

Timothy J. Bommer, Jackson, appeared on the brief and appeared in oral argument for Mary G. Tice in Case No. 4963.

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

ROONEY, Justice.

Plaintiffs (appellants in Case No. 4963 and appellees in Case No. 5043) brought an action for damages against defendant Mary G. Tice (appellee in Case No. 4963) and defendant Charles T. Tice (appellant in Case No. 5043) founded on fraud and deceit and on breach of contract. Plaintiffs, as buyers, entered into an agreement with defendants, as sellers, for the purchase and sale of an oil and gas and related products business in Jackson, Wyoming, together with all of its assets. Defendant Mary G. Tice was granted a motion for summary judgment on the grounds that there was not a genuine issue as to the material facts concerning her involvement in the transaction and that she was entitled to judgment as a matter of law. The court expressly determined that there was no just reason for delay and directed entry of the judgment. Plaintiffs' appeal from this judgment was docketed as Case No. 4963. The matter proceeded to trial against defendant Charles T. Tice and the jury returned a $126,000 verdict for plaintiffs. Judgment was entered thereon. Defendant Charles T. Tice's appeal from this judgment was docketed as Case No. 5043. The two cases were consolidated on appeal.

We will affirm the summary judgment in favor of defendant Mary G. Tice in Case No. 4963, and we will reverse the judgment in favor of plaintiffs in Case No. 5043, remanding the case for a new trial.

Facts necessary for determination of the pertinent issues will be set forth throughout the opinion as required.

CASE NO. 4963

In reviewing an appeal from the granting of a summary judgment and in determining the existence of a genuine issue of material facts, the court must inquire from the viewpoint most favorable to the party opposing the motion, Timmons v. Reed, Wyo., 569 P.2d 112 (1977). Facts asserted by such party and supported by affidavits or other evidentiary material must be taken as true, Trautwein v. Leavey, Wyo., 472 P.2d 776 (1970), and be given every favorable inference, which may be reasonably and fairly drawn from them, Bluejacket v. Carney, Wyo., 550 P.2d 494 (1976).

Even doing so, the pertinent record does not reflect a controversy with reference to the facts which are material to the claim that defendant Mary G. Tice breached the contract. The material facts concerning this claim are contained in the contract itself and in the addendum to it. There is no dispute over the terms of the contract or of the addendum. Although defendant Mary G. Tice was named in the contract as a party thereto and although she signed it, the addendum, which was also signed by both plaintiffs and both defendants, reflected a recognition that defendant Mary G. Tice was named therein only to assure the conveyance of "free title, unencumbered by any homestead or dower rights or other similar rights by virtue of her marital status." ¹ Deposition testimony is to the effect that defendant Mary G. Tice was not a partner in the business and had nothing to do with its operation.

From these facts, reasonable men cannot differ in an understanding from them that additional performance under the contract by defendant Mary G. Tice was not expected. Therefore, she could not act, or fail to act, in breach of its terms.

The minds of the parties met on the thing to be done, i. e., plaintiffs to pay defendant Charles T. Tice and Charles T. Tice to transfer the business and its assets to plaintiffs. Mary G. Tice was without right to any consideration from plaintiffs and did not have ownership of that purchased. Defendant Mary G. Tice could not breach the terms of the contract whether it be determined that a binding contract did not exist as to defendant Mary G. Tice because it lacked consideration to her or because it was not mutual or binding on her, Beatty v. Chicago, B. & Q. R. Co., 49 Wyo. 22, 52 P.2d 404 (1935); Crockett v. Lowther, Wyo., 549 P.2d 303 (1976); Shellhart v. Axford, Wyo., 485 P.2d 1031 (1971), or whether it be determined that the contract was not executory with reference to defendant Mary G. Tice inasmuch as all to be done, or not to be done, by her was already accomplished at the time the contract and addendum were executed. There is nothing in the verified portions of the record to indicate that Mary G. Tice was expected to do more under the contract than required by the addendum. ²

With reference to the claim that defendant Mary G. Tice committed acts amounting to fraud and deceit, the pertinent record does not reflect a controversy over the facts which are material to the decision that the claim was unfounded as a matter of law.

Plaintiffs' claim of fraud is predicated upon three alleged false representations: (1) the gross income of the business; (2) the amount of real property involved in the sale; and (3) the amount of money in the business checking account.

Any representations, true or false, with reference to the gross income or amount of real property, were made only by defendant Charles T. Tice. The record reflects that defendant Mary G. Tice made no specific reference thereto.

Her comments concerning the third alleged false representation, i. e., the business checking account and her activities with reference thereto, do not amount to that necessary for the essential elements of fraud.

As stated in Johnson v. Soulis, Wyo., 542 P.2d 867, 872 (1975):

"In Wyoming the elements of an action for fraud have been identified as a false representation by a defendant of material facts which are relied upon by a plaintiff to his damage. Davis v. Schiess, Wyo., 417 P.2d 19 (1966). Earlier this Court developed the concept that the asserted false representation must be one which is made to induce action, and that it must be reasonably believed by the plaintiff to be true. First National Bank v. Swan, 3 Wyo. 356, 23 P. 743 (1890)."

On the morning the contract was signed and the closing took place, defendant Mary G. Tice advised plaintiff Sally J. Reynolds by telephone that there was no money in the company bank account and that a statement for about $3,100 of Phillips Petroleum Company could not be paid. Defendant Mary G. Tice believed this representation to be true, but there was something in the neighborhood of $1,400 in the account. Defendant Charles T. Tice had written a check for $3,000 to defendant Mary G. Tice and one for $500 to himself on the account on the day of closing. At closing, defendant Mary G. Tice paid the Phillips Petroleum Company statement with a check on her personal account. ³

If the comments and actions of defendant Mary G. Tice would induce any action by plaintiffs, it would seem to induce them not to sign the contract, rather than induce them to do so. She told them there was no money in the bank account when in truth there was some. If she had told them there was $50,000 in the bank, when in fact there was only $5,000, the fraudulent element of "asserting a false representation * * * to induce action" may have been met. In other words, the representation made by defendant Mary G. Tice was not material. It was not made to induce action by plaintiffs.

"One of the elements necessary to establish actionable fraud is that the fact which is represented or concealed have materiality. (Citations.)" McCamon v. Darnall Realty, Wyo., 444 P.2d 623, 625 (1968).

The deposition of plaintiff Montie M. Reynolds reflects that when asked whether or not he considered cancelling the transaction because of the checking account situation, he replied that he did not because "that didn't seem to be significant to cancel the transaction at that time."

The record which was before the court when it granted the motion for summary judgment does not reflect any substantiation of the contention that defendant Mary G. Tice was a partner of defendant Charles T. Tice in the business or that she was involved in a conspiracy to defraud plaintiffs. There is nothing in the record to counter the deposition testimony that defendant Mary G. Tice had no interest or association in the business and that it was owned and operated entirely by defendant Charles T. Tice.

Nor is there any indication therein that she took part in the negotiations for sale of the business. Although she may have been present at several of the meetings between plaintiffs and defendant Charles T. Tice during the negotiations period, the meetings were characterized as both business and social. When asked for a statement made by Mrs. Tice relative to the inducement to purchase, plaintiff Montie M. Reynolds, in his deposition, could recall nothing more specific than her comment "that it was a good business and that Chuck had mismanaged it." In response to the same inquiry, plaintiff Sally J. Reynolds, in her deposition, answered "I can't honestly say that she did," and "the only thing I can remember Ty agreeing that Chuck was very poor with books" (Ty is defendant Mary G. Tice). In an affidavit filed in resistance to a motion for summary judgment, plaintiff Sally J. Reynolds stated that Mary G. Tice once said the...