Walter v. Moore

• Decision Date: 23 May 1985
• Docket Number: No. 83-183,83-183
• Citation: 700 P.2d 1219
• Parties: Dortha WALTER and Carol Walter, Appellants (Defendants), v. Larry MOORE and Robin Moore, husband and wife, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

Page 1219

700 P.2d 1219

Dortha WALTER and Carol Walter, Appellants (Defendants), v. Larry MOORE and Robin Moore, husband and wife, Appellees (Plaintiffs).

No. 83-183.

Supreme Court of Wyoming.

May 23, 1985.

Robert C. Wilson, Douglas, for appellants.

Mark R. Stewart, Glenrock, for appellees.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

CARDINE, Justice.

This appeal is from an action which sought rescission of a contract for deed entered into by Dortha Walter, appellant, and appellees Larry and Robin Moore. The action also sounded in tort against Dortha Walter and her son, Bruce, and daughter-in-law, Carol. Rescission of the contract and dismissal of Bruce Walter were granted by summary judgment and are not at issue in this appeal. The only issues at trial concerned the determination of Carol Walter's liability and the restoration of the parties to status quo prior to entering into the real estate transaction. Judgment was entered against Dortha Walter as vendor and Carol Walter as a licensed real estate agent in the amount of $23,139.84 with a setoff for reasonable rent in the amount of $4,117.50.

We will affirm in part and reverse in part.

Appellants raise the following issues:

1. "Whether the district court erred in finding that the appellant, Carol Walter, was liable as a result of being a licensed real estate agent at the time of the transaction and was involved in and held herself out as an experienced real estate agent for the purpose of this transaction."

2. "Whether or not the district court, after rescinding the contract, restored the parties to status quo when the court allowed only an offset of four thousand one hundred seventeen dollars and fifty three cents for the appellees residing on the property for a period in excess of two years from the date of the contract April 25, 1981, until the date of the trial, May 17, 1983."

FACTS

Dortha Walter was selling her house trailer and river-front property; she placed an advertisement in the classified section of the Casper Star Tribune newspaper listing this property for sale. She did not list the property with a real estate agency. Mr. Moore saw the ad, called Dortha, and arranged to view the property. Mr. Moore travelled to the property and met Dortha. She informed him of her sale price. He said he wanted his wife to see the property. Mr. and Mrs. Moore then returned and were shown the property. Dortha Walter testified, "I knew how much I had paid for the mobile home and I knew how much I had to have for the land." She advised the Moores of her price; they agreed to a sale price and purchased the property. Thus, the sale and purchase were agreed upon. It was only necessary to formalize and complete the transaction.

Dortha Walter stated that her daughter-in-law Carol was a real estate agent and would assist in details of the transaction with which she was unfamiliar. Mr. Moore then contacted Carol Walter by telephone and discussed financing, interest rates and qualifying for a loan. Carol mentioned that she was a licensed real estate agent and that she was not accepting a commission on this sale, but that, "she was just helping her mother[-in-law] out." Carol then prepared a standard offer and acceptance agreement which was sent to Dortha Walter who gave it to the Moores. There were some minor mistakes. Mrs. Moore called Carol Walter about the errors which were changed and initialed by Dortha Walter and the Moores. The Moores and Dortha Walter subsequently entered into a contract for deed which was prepared by an attorney. Before trial the Moores had had no contact with Carol Walter except the two telephone calls. During the first telephone call Carol discussed the flood-prone area of the property with appellee. She was aware that Converse County subdivision and development regulations were being considered. She did not know whether anything had been finalized. The property is located in Converse County, Wyoming; Carol resided in Sheridan County, Wyoming, about 200 miles to the north.

Approximately six months after appellees had moved onto the property the septic system quit working. Mr. Moore went to the county sanitation department to ascertain the county requirements for septic systems. A sanitation engineer mentioned The Moores first contacted only Dortha Walter and attempted to informally rescind the contract with her. When unsuccessful, although Bruce Walter had nothing to do with the transaction, appellees sued Dortha Walter and Carol and Bruce Walter seeking rescission and asking that Carol Walter be held responsible as a real estate agent for fraudulently misrepresenting or concealing information regarding the property. Appellees alleged in the complaint that:

that the property was in the floodplain zone which precluded installation of a septic system. Mr. Moore discussed this problem with the county planner and found that residential buildings could not be located within the floodplain. Thus, they could not install a septic tank nor build a new home on the land purchased from Dortha Walter as they had planned.

"11. The defendant, Carol Walter, as a real estate agent and former owner of the property, and a participant in the sale of the property from the defendant, Dortha Walter to the plaintiffs, knew, or should have known of the existence of the Converse County Subdivision development regulations and the fact that the property was located in the flood prone area, and further should have advised the plaintiffs of the existence of the regulations, and the effect of the regulations on the plaintiffs' intended use for the subject property.

"12. Instead, the defendants purposefully and fraudulently concealed from the plaintiffs their knowledge of the facts that they had not complied with County subdivision regulations, and that the property was in the 100 year flood prone area of the North Platte River."

Appellees do not contend that Carol Walter actually knew of the applicable regulations; they contend that she should have known of their existence.

The standard of review for questions concerning the sufficiency of the evidence is that we assume that the evidence in favor of the successful party is true leaving out of consideration the evidence of the unsuccessful party in conflict therewith and give to the evidence of the successful party every favorable inference which may reasonably and fairly be drawn from it. Krist v. Aetna Casualty and Surety, Wyo., 667 P.2d 665 (1983); City of Rock Springs v. Police Protection Ass'n, Wyo., 610 P.2d 975 (1980).

Questions of fact are to be determined by the fact finder. We do not substitute our view of the facts for that of the fact finder, and findings will only be set aside upon appeal if they are "clearly erroneous or contrary to the great weight of evidence." Plains Tire and Battery Co. v. Plains A to Z Tire Co., Inc., Wyo., 622 P.2d 917, 920 (1981). However, findings of fact which are not supported by the evidence, contrary to the evidence, or against the great weight of evidence may not stand. Kvenild v. Taylor, Wyo., 594 P.2d 972 (1979).

FRAUD

The trial court in the judgment entered stated:

"That the defendant, Carol Walter, was a licensed real estate agent at the time of this transaction, and was involved in, and held herself out as an experienced real estate agent for the purposes of this transaction."

The trial court did not find Carol to be an agent of Dortha Walter or of the Moores. Carol was sued in tort for fraud. The basis of the judgment against her was that Carol fraudulently misrepresented to the Moores that the property being purchased from Dortha was in compliance with zoning laws and sufficient for their purposes. It is apparent that the trial court found Carol liable for fraud because she was a licensed real estate person and held herself out as an experienced real estate agent with respect to this transaction. It was error to hold her liable on this basis; she was not liable for fraud for she did not know that zoning regulations affected the property. Without this knowledge, there could be no knowing, intentional concealment or misrepresentation.

In Meeker v. Lanham, Wyo., 604 P.2d 556, 559 (1979), we stated:

"Appellant presented no evidence from which it can even be inferred that these statements made by appellee were anything but good faith characerizations based upon appellee's knowledge at the time of the sale. There is no implication of any concealment of known defects. One cannot be guilty of fraudulently or intentionally concealing or misrepresenting facts of which he is not aware." (Citations omitted.)

And so it was that Carol Walter's statements were good faith characterizations based upon the knowledge she had at the time of the sale. For instance, she told appellees about the floodplain and that one Akins, to whom she had sold neighboring property, had been able to build a house above the floodplain. She did not know that the county had subsequently adopted regulations that affected the property. She was not required to know this and cannot be held liable and "guilty of fraudulently or intentionally concealing or misrepresenting facts of which [she] is not aware." Meeker v. Lanham, supra.

Carol Walter did not have an affirmative duty to gratuitously undertake to search records, interview the county planner, or develop information concerning this property. The buyers, knowing that she was the daughter-in-law of the seller, and knowing the circumstances, could not reasonably rely upon her to undertake this task. The buyers, knowing of the family relationship between Dortha and Carol Walter and knowing Carol's limited gratuitous involvement, had a duty to perhaps employ their own lawyer or someone to represent them or at least to determine matters concerning the property for themselves.

Applying the standard applicable to a lay person, Carol Walter did not breach a duty to appellees nor did she fraudulently misrepresent relevant facts....