AUSTIN v CASH
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NO. 95-186 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1995 RICHARD D. AUSTIN and VIRGINIA husband and wife, Plaintiffs P. AUSTIN, and Respondents, v. MARTHA KONOPACKI CASH and JOHN MICHAEL KONOP Defendants and Appellants, and BRUCE A. YOUNG, Defendant, and LOREN "GEORGE" EVERETT and ROSS HAFFNER, d/b/a Third-Party APPEAL FROM: WESTERNBROKERS, Defendants. District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Katherine R. Curtis, Judge presiding. COUNSEL OF RECORD: For Appellant: Jeffrey D. Ellingson, Kalispell, Montana Ellingson Law Offices, For Respondent: Alan J. Lerner, Attorney Montana (for Kalispell, at Law, Austins) James E. Vidal, Murray & Kaufman, Montana (for Young) Kalispell, Mark L. Stermitz, &Berg, Kalispell, Warden, Christiansen, Montana (for Everett Submitted Filed: on Briefs: Johnson and Haffner) October 19, 1995 November 14, 1995 Justice Charles This is Flathead between E. Erdmann delivered an appeal County, the 1. found fees. We affirm the issues contract District real estate performance, in part Court, contract and awarded and reverse in part. on appeal: Did the District enforceable specific of the Court. Judicial an enforceable ordered damages and attorney We restate from the Eleventh which parties, the opinion Court err existed in concluding between the that a valid Austins and and Cash/ Konopacki? 2. slander Did the District of title counterclaim fees against Did the District 3. 4. claim Court err in dismissing against Cash/Konopacki's the Austins? Court err in dismissing Cash/Konopacki's Everett? Did the District Court err in awarding costs and attorney to the Austins? FACTS Martha jointly acre owned approximately was to the west. separate August multiple negotiate formal Cash and John Konopacki east Cash and listing Highway Konopacki agreements and September listing of 19.5 1992. service. and sign on his power of attorney. listed with are acres 93, brother in Bruce Young entered County. One acres to the sale in ReMax Realty in properties Young of were for the two listings Cash had authority behalf, who Flathead and 18.5 the and sister although from she did into the Konopacki not have to a Richard purchase and Virginia in Flathead George for in County. a real Everett, property Austin California which were awaiting were the one parcel Although both contracts, Austins that the sole to purchase down and $50,000 on the closing the sellers required payable to execute Everett On November 12, Young, the was $110,000, subdividing Everett for the and the testified 18.5 the property for a he faxed 3 $50,000 and required that may be it to Cash. and sent parcel, would s 1031 the by exchange. acre sellers to the contingent it The counteroffer that that was also a counteroffer Everett. was only offer to listing with to Young, who faxed it there prepared subdivision Cash signed 1992, initial $100,000 land the offer who delivered that for a 5 1031 tax deferred presented service 19.5 acres. properties any owned thought an offer California in and was Cash. The offer on a note. cooperate the signed 19.5 acres of the Austins' to listing and he represented owner of the property the entire securing the parcel the entire had signed Mr. Austin contacted agreements from Young, Everett of land which contained On November 6, 1992, Everett of purchase was not known to Everett to owned two properties on the multiple received estate about showed Mr. Austin Cash and Konopacki this real in Kalispell, The Austins Relying and information for 1992, Mr. Austin subject Everett closing. was only agent home. by Cash and Konopacki. listing In October estate a retirement were looking sellers' tax not to clarified that the price cooperate deferred counteroffer in exchange. to Mr. Austin at his California office. Even though Austin he did not remember receiving that the counteroffer called the fax, was faxed to him and that records that indicate he then immediately Everett. Austin negotiate Everett rejected with the According consider the Austins, but that Everett office where they she would first to Everett, have to the sellers' took the sellers' by Cash and the additional signature or $5,000. indicating the handwritten paragraph, the Austins on November 17, 1992. that both revised Everett Cash and the counteroffer the additional telephone conversation he (Everett) the purchase acre. it needed had been paragraph obtaining Cash's to the counteroffer testified that he knew had been changed to include terms had added the handwritten acre, Austin. 4 or to the Everett sign add $5,000. assent revised to her initial on November 17, of the additional for sellers' the the with it handwritten Everett Austins because regarding faxed from which Without would she would counteroffer acre for initials discuss counteroffer a she $5,000 him that added to Cash on a speaker Cash said to Cash told signed including called Everett of the property. an additional then previously asked of all Cash and Young, for property and the purchase acre According the additional for to additional brother. counteroffer the sellers went to Young's telephone. that telephone testified also testified 1992, he told language although this that Mr. in a Austin pertaining to is disputed by testified Austin counteroffer, evening he believed of November counteroffer testified contract, properties binding that to upon receiving he faxed the document counteroffer from the Austins Nagelhus Young about purchasing and ultimately purchase Everett same day Everett not responded advised offer 1992, Austins 1992, Austin intend Everett wrote that for a letter offer the there land had the right to accept a letter his lying Cash and Konopacki counteroffer west that 1992, the seller in. counteroffer. to Mr. The had Young also Cash had received to change his to 1992, "we had a deal." was coming contract a Karen was referred 19, offer, another but that On November 20, of between 93. the Nagelhus 5 from 20, stating by to convey on November of Highway accepted signed an inquiry or not a her signature. to Young on behalf was a binding was a Everett On November to see whether 1992. California property. Nagelhus on November 19, 1992, that not asserting offer another there to Young intending $117,500. faxed Austin and that Cash did for and that Austin Montana the property. revised not have made without Cash received made an property called Austin the belief back to Cash for 1992, the of one of their the revised the Austins, On the on November 18, would the revised by Cash. on their move they the signed Everett the price purchase On November 18, received Austins in relying they reduced agreement the back to that he had been signed 1992, it by $45,000--a testified when it 17, and faxed The Austins binding that the Austins, Cash and the On November 21, offer. On December 30, 1992, on the property. As unable to give marketable close. Nagelhus which extends this the Austins' result a of title entered into filed the lispendens, a "Closing a lispendens sellers and the sale Date Extension" until 30 days after were did not agreement resolution of litigation. specific 26, 1993, performance the contract and Konopacki counterclaimed filed lispendens Austins of the revised was a binding between by the complaint before the Court entered judgment contract together and with dismissed. Austins for against to fees Cash and Konopacki notice Everett. appeal specific was held from the Court performance $7,500 of and Young A trial All of a conditional out The District Austins and costs. Cash arising Konopacki, a jury. the sellers. of title ordering seeking which they claimed and the Cash, without awarding attorney have filed slander the Austins an action counteroffer Austins. a third-party District brought themselves for brought the the to Nagelhus the date of closing On January the attorney in other of damages, claims judgment, were and the cross-appeal. STANDARDOF REVIEW Whether and law. forth 239, or not a contract Our review of a district in Y A Bar Livestock 887 P.2d 1211, exists is a combined court's Company v. finding Harkness issue of fact of fact (1994), set 269 Mont. as follows: This Court reviews the findings of a trial court sitting without a jury to determine if the court's findings are clearly erroneous. Rule 52(a), M.R.Civ.P. 6 is A district court's findings are clearly erroneous if they are not supported by substantial credible evidence, if the trial court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed. Y A Bar Livestock, Ass'n v. DeSaye (1991), We have defined scintilla, State 887 P.2d at 1213 (citing substantial but v. . Shodair 882 (citing 250 Mont. . Miller than 1995), Credit 1287). to mean a preponderance, 902 P.2d 21, 26, v. Frasure "more (1991), 248 Mont. of a evidence." 52 St. 132, than Rep. 879, 137, 809 P.2d 1261). 1257, We review the court's a district court's interpretation conclusion of law to determine of the law is correct. Union Reserve Coal Co. (Mont. 529, Prod. 820 P.2d 1285, 323, evidence . less (Mont. 320, Interstate 1995), if Carbon County v. 898 P.2d 680, 686, 52 St. Rep. 533. ISSUE 1 Did the Court contract enforceable District err existed in concluding between that the a valid Austins and and Cash/ Konopacki? Cash/Konopacki fact are clearly establishing the Cash/Konopacki claim matter that the Court and that existence of a there to reverse were entitled District erroneous to specific is between Court's law incorrect. the parties conclusion of of as a They is not satisfied. performance 7 findings conclusion contract of frauds the District Court's its is no contract of law because the statute urge this Austins argue that of the contract. the Cash/Konopacki language of the language changing original argue document. after Cash were or sellers' had contract that a valid Austins urge their contract, In authorized the outlined these in changes between or were made they or subscribed Everett, a Court valid is acts taken made out involving must be in property in codified be affirmed. real must Contracts argue reliance the that on the statute property, satisfy the for The Cash/Konopacki further of specific of due statute of alleged sale of frauds of which 28-2-903. What contracts must be in writing. (1) The following agreements are invalid unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged or his agent: idi 'an agreement for the leasing for a longer period than 1 year or for the sale of real property or of an interest therein. Such agreement, if made by an agent of the party sought to be charged, is invalid unless the authority of the agent is in writing and subscribed by the party sought to be charged. 8 to frauds. consent the to as follows: State writing. should in conclusion and that to bind The Austins and Court's parties had authority transactions parties the Everett contract this the and because District District performance the terms Young, the own handwritten by Cash/Konopacki us to affirm counteroffer. part his counteroffer by the that revised because original exists ordered allege that and altered exist. contract performance by adding Cash/Konopacki, not significantly property argue the being The Austins the They by does price, signed initialled Everett counteroffer the made without that the real is 30-11-111. Contract for sale of real property. No agreement for the sale of real property or of any interest therein is valid unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged or his agent thereunto authorized in writing; but this does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof. In its findings of fact, the District Court determined that: All of the exhibits, taken together, constitute a sufficient memorandum, signed by all parties to be charged, to satisfy the statute of frauds for all parcels of real property involved in this case. The documents, establish a meeting of the minds and a taken together, mutually binding contract for the sale of all parcels of real property involved in this case under the terms and conditions of Agreed Exhibit 6. "Agreed by the Austins. documents a Exhibit of fact, satisfy the statute We conclude that of law. the law The uncontroverted included Everett's seller would indicating Everett behalf handwritten have to document. signed of the sellers, or assent or initialled that frauds, is actually of the to District record the Court's the sellers' both initial the to his handwritten additional contract 9 was not the revised that Austins original Konopacki, that Cash, indicate to by Cash, he knew neither the the signed concluding in the addition that Since in Cash/Konopacki "subscribed" sign each parties' original presented from testified counteroffer incorrect. facts and was not Everett Everett. is counteroffer counteroffer revised finding of revised sellers' together interpretation the the This taken conclusion 6" is Young, the buyer or and counteroffer additions Konopacki, to the Young, or handwritten language on properly "subscribed" by the sellers statute of or their of the the argue that of frauds statute alleged agreement counteroffer offer from contracts partially performed effort to the 179 this partial the 381 P.2d of referable to v. performance constitute the Schwedes P.2d 388, 802). with to statute (citing 391 held take of Boesiger that frauds Schwedes, must 587 in be distinguished performance The Austins' reduction was an act an statute of of the the price in contemplation of of unequivocally at 1972), contemplation 391 (citing 457 F.2d of acts eventual which so as to take their Freer acts (Cal. of eventual 10 v. P.2d Schwedes, of frauds. (1978), unenforceable be from contract can be "[cllaimed an otherwise a party the by in and Mudgett by of they Cash/Konopacki Romain undertaken operation argue performance Revenue the sales home by $45,000 Internal part the Austins' part v. We have contract." to that The Austins of are the of original a provision Commissioner Acts performance The approving to constitute sufficient that Throndson sellers acts 587 out included be taken condition. 472, contract $45,000 satisfy should part California 466, 1022). not Cash/Konopacki. on their of performance their properties. of law. 1963), of contract as a matter Mont. (Idaho does contract alleged price The sufficiency decided with California sales satisfy alleged because on the on their the the Cash/Konopacki was conditioned reducing and therefore frauds. The Austins out agents 587 P.2d it truly out at of 391. California home by performance and one that is not unequivocally referable to the alleged contract with Cash/Konopacki. The Austins specific the argue performance remedy of of sale a valid 391, This land in unless contract in 390, (1994) I 263 Mont. 393, with Court is the not grant a purported established Thornton 633, ordered will with first existence. approval properly connection it 868 P.2d we cited Court contract. the there at the District performance for P.2d of the specific agreement is that 635. In following v. that Songstad Schwedes, general 587 rule: In order for equity to decree specific performance, it is necessary that there be in existence and in effect a contract valid at law and binding upon the parties against whom performance is sought, for specific performance is never applicable where there is no obligation to perform. The Austins estopped Their that relied the Montana to of in the the their detriment property. First, Cash had authority the fact the property that the to Austins becomes Cash/Konopacki contract (1) that Therefore, interest that around was a co-owner they record argue an enforceable centers Konopacki purchase the denying argument that (2) from go on to moot. fact are between that the they Cash/Konopacki parties sign for were unaware Second, parties. were unaware property, on a binding the equitably agreement to stipulated and bind of we have on Konopacki. Konopacki's stated where a case is clearly within the statute of frauds, promissory estoppel is inapplicable, for the net effect The court would be to repeal the statute completely. cited [a] general rule that the moral wrong of refusing to be bound by an agreement because it does not comply with the statute of frauds, does not of itself authorize the application of the doctrine of estoppel, because the 11 and that breach binding of a promise which is not a fraud. Schwedes, 587 P.2d Sinclair v. give sellers party sought parties not approval does not application equitable with the the the equitable determining in that performance existed and was not their facts of of we hold a valid the agents part to the by the between the therefore do not merit performance that did and is case contract we reverse 250). "subscribed" frauds this regarding changes contract of as 195 N.E.2d or purported statute Therefore, 1054, handwritten doctrines estoppel. regard at 1964), Everett's The Further, of (Ill. contract enforceable. erred to the comply not Cash/Konopacki be charged. to does 56 A.L.R.3d Co. because counteroffer, law (quoting Chevrolet that written I 392 Sullivan We conclude not at the the District and/or District warranting Court the Court specific on this issue. ISSUE Did slander the of Since Date claim date of of the the slander of title the dismissing have entered the 30 days dismissed we affirm issue. 12 have after resolution not a lispendens on the properly and parties into will Cash/Konopacki filing Cash/Konopacki's Austins? whereby until that Court in and Nagelhus closing Austins District err against Agreement," we conclude result Court Cash/Konopacki the lawsuit, for title Extension extend that District 2 the a "Closing agreed of be harmed property. Court this as a We hold Cash/Konopacki's District to claim on this ISSUE Did the District against counterclaim Since exist Court Everett? we held between brought by therefore this that the err Austins and hold that in dismissing and a valid Cash/Konopacki claim 3 enforceable District and we affirm the to the the District Court District shall on our holdings be awarded stipulating costs such We hold case. attorney Court err moot. in on this We dismissing issue. 4 in awarding costs fees that to we conclude above, and relief attorney and attorney the that There fees. and no statute confers District erred the fees Austins are free Court and we reverse neither is such party no agreement a right in awarding the District in costs this and Court on issue. The Austins as allowed merits err not not counterclaim becomes did did Austins? Based this Court the Everett ISSUE Did contract Cash/Konopacki, against the Cash/Konopacki's of by law, those however, to pursue this any and all Court renders claims. Justice We concur: tort damage no opinion claims as to the 14
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