858 P.2d 453 | Or. Ct. App. | 1993
This case is on remand to us from the Supreme Court, after its decision holding that we erred in reinstating a jury verdict for plaintiffs on their claim of negligent misrepresentation. In the light of the Supreme Court’s decision, we reverse the trial court on defendants’ cross-appeal, which sought to reverse the trial court’s denial of motions for a directed verdict and for judgment notwithstanding the verdict on the claim of negligent misrepresentaiton. Onita Pacific Corp. v. Trustees of Bronson, 315 Or 149, 843 P2d 890 (1992). On remand, we also address plaintiffs’ assignments of error on appeal that we did not reach in our first opinion because of our disposition of the negligent misrepresentation claim.
This case concerns an agreement whereby defendants,
Among plaintiffs’ claims to be tried to the jury was a claim alleging that defendants had breached the duty of good faith and fair dealing by refusing to release deeds to lots after
As we held in our original opinion, the trial court’s findings on the claim for reformation on issues common to the claims to be tried to the jury were not binding and did not prevent plaintiffs from having the jury decide those issues. 104 Or App at 705. As we also held, the contract documents are ambiguous as to whether release of the deeds was conditioned on third party resale. Accordingly, that was a question of fact for the fact finder. The trial court’s finding that the agreement required third party resales as a condition to deed releases was not binding on the jury.
The complaint alleged that defendants promised, but failed, to release the deeds to lots on payment of the amounts specified in the contract documents and that, contrary to their promises, they subsequently modified the contract so as to require third party resales as a condition to release of the deeds. It alleged that defendants’ conduct was contrary to the parties’ common purpose, inconsistent with plaintiffs’ expectations, and that it interfered with plaintiffs’ ability to perform their obligations under the agreement, made their obligations more onerous, and destroyed their right to receive the fruits of the agreement. We conclude that the complaint states a claim for breach of the duty of good faith and fair dealing. Best v. U.S. National Bank, 303 Or 557, 561, 739 P2d 554 (1987). The trial court erred in dismissing the claim.
The second issue on remand is whether the trial court erred in granting defendants’ motion for a directed verdict on plaintiffs’ claim of fraud. To establish fraud, plaintiffs must show that defendants made a false and material representation, either with knowledge or in reckless disregard of its falsity, that defendants acted with the intention that plaintiffs rely on the representation, that plaintiffs were ignorant of the falsity of the representation, reasonably relied
“the evidence must be free from confusion, fully intelligible, distinct and establish to the jury that the defendant intended to deceive the plaintiff or did so with reckless disregard for the truth. To he both clear and convincing, the truth of the facts asserted must be highly probable.”
It is not our job to decide whether the evidence is clear and convincing, but to decide whether a jury could find that it is. The evidence is sufficient.
A jury could find that defendant Warde Erwin represented to plaintiffs that lot release provisions in the escrow instructions, which were incorporated into the land sale contract, permitted release of deeds on payment into escrow of sums specified in the contract and escrow instructions. A jury could find that defendant Lawrence Erwin represented that a $200,000 extraordinary payment made by plaintiffs before closing would be processed through the escrow and would result in a release of deeds to lots having a value of $200,000, and that Lawrence Erwin represented that when he processed the $200,000 extraordinary payment through his own trust account, he would treat the payment as if it had been made through escrow and would result in a release of the deeds under the terms of the escrow. A jury could find that Lawrence Erwin represented that a new escrow that he intended to establish would be identical to the original one and would permit release of deeds on payments of amounts specified, without the requirement of a third party sale.
A jury could find that those representations were false, that defendants did not intend to permit a release of deeds on payment of the sums stated, and did not intend to release lots on payment of the $200,000 extraordinary payment, that the new escrow instructions that Lawrence Erwin
In the light of our disposition of the claims of fraud and breach of the duty of good faith and fair dealing, it is possible that plaintiffs, rather than defendants, will be the prevailing party on remand. Accordingly, the trial court’s award of attorney fees to defendants is reversed.
On appeal, award of attorney fees to defendants reversed, and reversed and remanded on claims of fraud and breach of duty of good faith and fair dealing; reversed on cross-appeal.
No relief was sought against Compton. Plaintiffs voluntarily dismissed their claims against Lawrence Erwin. The claims against the Sieberts and Douglas Cascade Corporation are not involved in this appeal. Throughout this opinion, we use the term “defendants” to refer to Warde H. Erwin, Clyde Purcell, L. A. Swarens and the trustees of Charles D. Bronson, each of whom was a partner in the joint venture to own and sell the real property in this case.
The extent of damages need only be proved by a preponderance of the evidence. Dizick v. Umpqua Comm. College, 287 Or 303, 311, 599 P2d 444 (1979).