No. 87-192

INTHE SUPREME COURT OF THE STATE OF MONTANA

WILLIAMA. SELVIDGEandVIRGIE M. FENNER, Plaintiffsand Appellants,-vsMARCUS McBEEN andNANCY L. McBEEN; ROBERT PAYNE; and PAYNEREALTY and HOUSING, INC.,
Defendantsand Respondents.

APPEAL FROM: District Court of the Sixth JudicialDistrict, In and for the County of Park, TheHonorable Byron Robb, Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Lloyd E. Hartford,Billings,Montana

ForRespondent: Richard J. Carstensen, Billings,Montana Richard W. Anderson;Anderson, Edwards & Molloy, Billings,Montana

Submitted onBriefs: Dec. 17, 1987 Decided:February 8, 1988
Filed:

# 'rm 8

ClerkMr. Justice William E. Hunt, Sr.

## , delivered the Opinion of the Court.

This claim of fraud comes to this Court from the Sixth Judicial District, Park County. Following a bench trial, defendants,Nancy McBeen, Robert Payne and Payne Realty and Housing, Inc. were dismissed from the suit. The trial court found that defendant, Marcus McBeen had fraudulently misrepresented the income of the property and business that he sold to plaintiffs. Plaintiffs/appellants Selvidge and Rennerwere awarded $62,238 in actual and $10,000 in punitive damages. They appeal the amountawarded and thedismissal of defendants Nancy McBeen, Robert Payne and Payne Realty and Housing, Inc. In addition, they appeal the failure of the court to award them attorney fees. Defendant Marcus McBeen cross-appeals the judgment againsthim. We affirm the DistrictCourt. The issues presented for our review are as follows: 1. Whether the District Court erred in dismissing Robert Payne and Payne Realty and Housing, Inc. from this lawsuit. 2. Whether the DistrictCourt erred in dismissingNancy McBeen from this lawsuit. 3. Whether the District Court erred in the amount of damagesawarded. 4. Whether the DistrictCourt erred by failing to award reasonable attorney fees to appellants. McBeen cross-appeals with issues 5-7: 5. Whether the legal requirements to prove fraud were supportedby the facts. 6. Whether appellants alleged losses were proximately causedby MarcusMcBeen's alleged misrepresentations.7. Whether punitive damages were properly awarded. In 1982, defendants Marcus and Nancy McBeen purchased the Johnson-Gardner Saloon in Gardiner,Montana. They paid $6,000 plus an exchange of property for the saloon. They operated the saloon from February 2 to November 25, 1982, then closed for thewinter due to slowbusiness. Since 1977, the saloon had changed hands three times. The sales prices

were $57,500 in 1977, $70,000 in 1978, and $60,128 in 1980. The McBeen's hired managers for the saloon and had very little to do with the operation of it except that Nancy McBeen wrote some payroll checks and did some bookkeeping. McBeensmade $10,000to $20,000 ofbuilding improvements during the time they owned the saloon. In January, 1983,Marcus McBeen contacted Robert Payne and PayneRealty and Housing, Inc. about listing thebusiness for sale. The purchase price was listed at $120,000 plus cash for saleable inventory,with interest at 11%. At the time of the listing, MarcusMcBeen told Payne that the saloon grossed $71,233 in a little less than a 10monthperiod. The purchase price included the saloonbuilding, a rental house, the land, bar equipment and fixtures and a Montana all beverage license. After personally viewing the property,Payne ran an add in theBillings Gazette as follows: Liquor Bar
Located in Gardiner, MT. Recently remodeled, living quarters, priced to sell at $120,000 with good terms. Appellants, William Selvidge and Virgie Renner saw the ad, drove to Gardiner and met with Marcus McBeen. They discussed the sale of the business with McBeen and saw the property although the bar was not operating at that time.Appellants were originally from California, where Selvidge owned andmanaged abar/restaurantand Renner worked as a waitress formany years. Appellants investigated other business prospects in Gardiner and continued to show an interest in the Johnson-GardnerSaloon. After meeting with McBeen, appellants and Marcus McBeen met with Robert Payne. Paynerelayed to appellantsthegross sales figure for 1982 of $71,233. Marcus McBeen told them that saleshad actuallybeen significantlyhigher, eventually stating that $83,779was the correctamount. On February 24, 1983, after numerous (12-14)visits to Gardiner, appellants offered McBeens $110,000 with 10% interest for the saloon. McBeens and appellants reached an agreement on the purchase price for $115,000 with lo+% interest. Prior to the sale,Payne cautioned the appellants that he could not vouch for the business figures as all anyone had to rely on was Marcus McBeentsstatements. The records from the previous owners were not available and McBeenst records were allegedly at their tax accountants, being used to prepare their 1982 taxes. Payne advised appellants to seek their own legal counselandwent so faras to attach the following special provisions to the final sales contract. This sale is subject to the following items:
1. Buyers being able to inspect and be satisfied with the books (incomeand expenses) for the year 1982.
2. Buyers being able to have legal counsil [sic] review all previous contracts that are still in effect and a preliminary title policy on the property and being fully satisfiedwith them. Appellants demanded that McBeens decide within three days after their offer. On February 26, 1983, the McBeensaccepted and a "Buy/SellAgreement" was executed containing the followingstandard clause: 9. Purchaser enters into this agreement in full reliance upon his independent investigation and judgment and there are no verbal or other agreements which modify or affect this agreement. On March 14, 1983,prior to the execution of the final contract for deed, Marcus McBeen met with appellants at Payne'soffice to review the recordsof thebar. Theman who suppliespoker and game machines toallGardinerbars stopped by and talked briefly with appellants, presumably about the machines whichwere in the Johnson-GardnerSaloon at the date of the sale. At this meeting, appellants were given a typewritten sheet titled "Johnson-Gardner 1982 operating Statement." Payne again informed appellants that the figures

were unsubstantiatedby anyone except MarcusMcBeen. Following this meeting on March 31, 1983, an attorney for both parties drew up a formal contract for deed. Paragraph VII of the contract contained the following provisions: Examination of Property. The purchasers declare they are purchasing this property on their own examination and judgment and not through any representations to them made by the sellers or their agents as to location,value, future value, income therefromor as to itsproduction.
After about four months of operating the saloon, appellants advertised it for sale. They asked ~obert Payne to list it for $225,000. He refused to list it at such an exorbitant price, even though appellants told him they thought itwas a fairprice. Appellants ended up listing it for $225,000 themselves. They could not sell the saloon for the desired amount, so appellants continued to own and operate ituntil the time of trial.When the saloon failed to make as much as appellants anticipated, they filed suit alleging fraud and misrepresentation by Marcus and Nancy McBeen, Robert Payne and PayneRealty and Housing,Inc. In the course ofdiscovery, appellantsbecame aware that McBeen's "1982 Operating Statement" was, as described by a CPA who reviewed the business records, "grossly inaccurate." The District Court made very thorough and elaborate findings with regard to Marcus McBeen's alleged fraud and misrepresentations and appellant's damages. These will be enumerated and discussed further in the following opinion. IssueNo. 1 The appellant's first issue alleges error by the District Court for disn~issingRobert Payne and Payne Realty and Housing, Inc. fromthis lawsuit. After hearing a nonjury trial, the District Court made 63 findings of fact. Included in the findings of fact

were:29. Payne had no knowledge of and made no representation to plaintiffs concerning the profitability of the bar. Neither did he conceal anything he knew of from plaintiffs.

31. Plaintiffs knew that Payne himself had not audited the books and that all figures presented came exclusively from Marcus McBeen. Plaintiffs had the right to demand even further records had they wanted them, and they were aware of that right. Plaintiffs by their own testimony admit that they entered into and closed the transaction with fewer records than they had hoped to see.
32. Plaintiffs did not rely on Robert Payne for any representations, assurances or confirmation as to the profitability of said business, and understood that Payne Realty and Housing Inc., acting through Robert Payne, was McBeens' real estate agent in the transaction,whose function itwas to bring the parties together, show the property, and arrange for the preparation of the closingdocuments.
33. Payne at no point prior to the closing of the transaction had any access to McBeens' 1982 tax returns. In fact, the returns had not yet been prepared, and plaintiffs knew it. Plaintiffs voluntarily completed the transaction, signed the contract for deed, and thereby waived any reliance upon tax returns.
34. The property which plaintiffs purchased was exactlywhat they intended to buy. All buildings, lands, fixtures, licenses and appurtenances were substantially as representedby McBeens,therewere nohidden orundiscloseddefects,andVirgie Renner expressly testified plaintiffs had no complaint as to the physical assets.

As a consequenceof these findingsof fact,theDistrict Court concluded. that "Plaintiffs failed to prove any claim for damages against Robert Payne individually or against Payne Realty and Housing, Inc., the complaint against them should be dismissed with prejudice, and defendants Payne should have judgment against plaintiffs for their allowable costsof $944.05." In a nonjury trial, the District Court judge makes the findings of fact and conclusions of law. Tolson v. Tolson (1965), 145 Mont. 87, 399 P.2d 754. Findings of fact will not be overturned unless there is a clear preponderance of evidence against them. Round v. Reikofski (Mont. 1985), 699 P.2d 72, 42 St.Rep. 634. Also, we view the findings in a lightmost favorable to theprevailing party. General Mills, Inc. v. Zerbe Bros, Inc. (Mont. 1983), 672 P.2d 1109, 40 St.Rep. 1830. The appellantshave the burden of showingby a clearpreponderanceof the evidence that the findings of fact are incorrect before this Courtwill disturb those findings. Cameronv. Cameron (1978),179Mont. 219, 587P.2d 939.The court's dismissal of defendants Payne fell within the District Court's powers under Rule 41(b), M.R.Civ.P.:



# . . . After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissalon theground that upon the factsand the law the plaintiff has shown no right to relief. The court as trier of the factsmay then determine them and render judgment against the plaintiff



# ... In the present case, Payne recommended that the appellants hire their own attorney, as he could not verify the amounts which Marcus McBeen alleged to be the true and accurate accountings of the bar's business. Section 37-51-321,MCA, prohibits realestate brokers fromconmitting various acts. The key to these acts isknowledgeand intent. The evidencepresented in this case supportsthe finding that Payne had no knowledge of the accurate accounting figures relating to the saloon's business, did not intentionally misrepresent any information to appellants, nor did he advertise in a misleading or untruthfulmanner. Payne acted in good faithas realtorandwasproperly dismissed from this action. IssueNo. 2 Appellants contend that it was also error for the DistrictCourt todismissNancyMcBeen from this suit. The District Court found as fact that "[tlhere was no evidencepresented to establish thatNancy McBeen knew of any of said misrepresentations, communicated the inaccurate information to anyone, or participated in any way in any fraud ordeceit. She should thereforbe andwas dismissed as defendant at the end ofplaintiffs case."When reviewing a Rule 41(b) dismissal of a defendant, the reviewing court must view the evidence in a light most favorable to the plaintiff. However, this does not relieve the plaintiff of the burden ofproducing evidence in support of each element essential to recovery. Nixon 

### v. Huttinga

(1974), 163 Mont. 499, 501, 518 P.2d 263, 265. Appellants showed only that Nancy McBeen (1) was co-owner of the Johnson-Gardner Saloon before the sale to appellants;

(2) had some responsibilities for bookkeeping for the saloon; and, (3) was present at a few of the meetings of McBeens and appellants concerning the sale of the saloon. Nancy McBeen, along with her husband, was accused of fraud and misrepresentation. The elements of fraud are: (1) a representation; (2) its falsity; (3) its materiality; (4) the speakers knowledge of the truth;

(5) the intent that it should be acted upon in the manner contemplated; (6) the hearer's ignorance of its falsity;

(7) the hearer's reliance on its truth; (8) the right of the hearer to rely thereon;and (9) the hearer's consequent and proximate injury or damage. Hutton v. Ming (1970)

## , 155 Mont. 149, 153, 467 P.2d 688, 690. The circumstances constituting fraudmustbe statedwith particularity. Kinjerski v. Lamery (1979)

## , 185 Mont. 111, 117, 604 P.2d 782, 785. Appellants presented only a general assertion of fraud. They presented no evidence establishing the presence of any one of the elements of fraud. As such,

we hold that Nancy McBeen was properly dismissed as a defendant at the close of appellant's argument in the lower courtproceeding. IssueNo. 3 Appellants' next contention is that the District Court erred in its award of damages.Appellantswere awarded $62,238 in compensatory damages and $10,000 in punitive damages. The applicable statutes which allow for these awards are S 27-1-317 and S 27-1-220, MCA, respectively. We donot agree with appellants' argument that the compensatory damages award was too low. The District Court found that appellants suffered annual losses of $31,338and reasonablewage lossof $30,900based on their income tax returns. The court found further that appellants did not suffer any loss of opportunity to earn income on their investment, nor did they pay an excessive amount for the saloon property and business. These findings are supported by the evidence of past and present business records for the Johnson-GardnerSaloonand by evidenceof the value ofother comparable businesses inGardiner. We also disagree with the allegation that the punitive damages awarded were too low. The court found that Marcus McBeen's acts of misrepresentation to appellants were fraudulent. To deter future similar behavior, an award of $10,000 in punitives was awarded to appellants. Section 27-1-221(7)(b)

## , MCA, outlines the findings necessary for an award ofpunitive damages: (b) When an award of punitive damages is made by the judge, he shall clearly state his reasons for making the award in findings of fact and conclusions of law,demonstrating consideration of each of the followingmatters:

(i) the nature and reprehensibility of the defendant's wrongdoing;

(ii) the extent of the defendant's wrongdoing; (iii) the intent of the defendant in conmitting the wrong;

(iv) the profitability of the defendant's wrongdoing,ifapplicable;(v) the amount of actual damages awarded by the jury; (vi) thedefendant's networth; (vii) previous awards of punitive or exemplary damages against the defendant based upon the same wrongfulact;

(viii) potential or prior criminal sanctions against the defendant based upon the samewrongful act; and

(ix) any other circumstances which may operate to increase or reduce, without wholly defeating, punitivedamages.

In its findings of fact and conclusions of law, the DistrictCourt concluded that: I. The actions of defendant Marcus McBeen in representing and warranting that the operating statementof the Johnson-Gardner Saloon for 1982as a true and accurate statement of the gross income and expenses were false, deceitful of material facts,and constitute fraud.

J. Defendant Marcus McBeen intended that plaintiffs should rely upon said representations. Plaintiffs were ignorant of the falsity of the representations, did in fact rely on them as they had a right to do, and thereby suffered injury.

K. Plaintiffs William Selvidge and Virgie Renner are entitled todamages of $31,338 fornetbusiness loss on said business for the years 1983 through 1985,plus $30,900 for lostwagesduring said time, making a total of $62,238.00, which amount will compensate them for all the detriment proximately caused by MarcusMcBeen's actions.

L. Plaintiffs have not established that they are entitled to have said contract reformed or the price paid for the property and business reduced.

M. Plaintiffs are not entitled to an award for loss of opportunity to earn a return on their investment and capital as that would be a duplication of the damages referred to inconclusion K above, and because the value of the real and personal property and business was not excessive or grossly disproportionate to the price paid by plaintiffs.

N. Plaintiffs are entitled, however, to punitive damages against Marcus McBeen in the sum of $10,000.00 to deter similar future conductby him.

P. Plaintiffs were not contributorily negligent herein, and their damages should not be reduced. Because of some seemingly contradictory findings of fact with these conclusionsof law,the DistrictCourt followed up the conclusions with an explanatory comment. EXPLANATORY COMMENT

In case the foregoing findings or conclusions seem somewhat inconsistent, the court finds that while plaintiffs did make a thorough investigation of their own prior to purchasing the saloon and agree in the contract of sale theywere relying on that and not on any representationsof the sellers, and while the court also finds plaintiffs did not pay a grossly disproportionate or unreasonable price for the premises and business,and that they did have opportunity to examine McBeens records, I still find McBeen materially misrepresented the gross sales he reported in the operating statement he prepared, and because plaintiffs were entitled to and did rely on this, they are entitled to the damages proximately caused thereby, plus moderate punitive damages. However, plaintiffs seek duplicative, speculativeand unjustified amounts of damages, both actual and punitive, and I have awarded only those that are reasonably certain. Ms. Renner's inconsistentand exaggerated testimony has caused me to reduce somewhat the punitive damages Imight have otherwiseawarded.
The conclusions of law considered in light of the facts of this case and the judgesexplanatory comment satisfies the statutory requirements for punitive damages. We will notdisturb the punitive award, nor the award for compensatory damages. IssueNo. 4 Lastly, appellants allege that the District Court erred in failing toaward attorney fees. In the absence of a contractual agreement or specific statutory authority, attorney fees are not recoverable as costs by the prevailing party. State ex rel. Wilson v. Department of Natural Resources and Conservation (1982)

## , 199 Mont. 189, 648P.2d 766, 769; § 25-10-301,MCA. In this case, appellants recovered on their allegation of fraud and misrepresentation--a tort. Their testimony indicates that they are satisfiedwith all thebuildings and fixtures which they purchased under contract. The court found the purchase price to be reasonable. Because they recovered under tort law, appellants were awarded $10,000 punitives. There is no statutory authority nor contractual agreement which gives rise to an award of attorney fees in this case. We affirm the District Court's refusal to award attorney feesto Selvidge and Renner. IssueNo. 5 McBeens' first issues raised on counter-claim alleges that the finding of fraud was not supported by the facts. The elements of fraud were outlined under issue no. 2 above. TheDistrictCourt's relevant findings of fact,which

were supportedby the evidence include: 45. Defendant Marcus McBeen knew that the saloon business in question did not have gross sales in 1982 of $83,779 or gross rental income of $2,100.
46. McBeens said operating statement (EX. ll), financial statement (Ex. 14)

## , and 1982 income tax return (Ex. 15), were all prepared by Marcus McBeen

# . He is an experienced businessman, and engaged in and familiar with the management and runningof several differentand diverse businesseswhile in Gardiner, namely, a lumber yard, real estate business, home construction, solarheating, and a saloon.

47. The documents referred to in finding 46 were prepared by McBeen to purportedly accurately reflect his total business income and financial status, and were prepared for use of lending institutionsand Internal Revenue Service,and only gratuitously given plaintiffs according to Marcus. The court finds, however, that the operating statement is not only inaccurate and vague, but misleading to anyone towhom he submitted it.

49. Plaintiffs had the right to rely upon the representation of defendant Marcus McBeen concerning the financial condition of business in question,and in fact plaintiffs did rely thereon, as well as on their own experience, observations and investigation,purchasing thebusiness.
50. The representations made by Marcus McBeen to Selvidge and Renner were false and were material, and he intended plaintiffs to rely thereon to induce them topurchase said saloonbusiness.
51. Plaintiffs were ignorant of the falsity of defendant McBeen's representations at the time of the purchase, and as a result of his false representations and plaintiffs reliance thereon, plaintiffs suffered injury.
52. That once plaintiffs purchased the business and. took possession, they operated it on a sound basis and increased their business some each year. However, they claim to have suffered annual losses as indicated by their partnership income tax returns (Ex. 2) including deductions for depreciation,as follows:

Total 

# ........$31,33853. That plaintiffs have suffered loss of reasonable wages since purchasing the business of $30,900.
54. That plaintiffs losses mentioned in findings 52 and 53 are directly attributable to the misrepresentations and deceitful statements of MarcusMcBeen.

57. That the courtdoes find,however,thatMarcus McBeen's omissions and representations in the sale were fraudulent and oppressive toward plaintiffs, and they should be awarded punitive damages of $10,000to deter similar future conduct.

60. The only damages plaintiffs have established are fromMarcus McBeen's tort of fraud,so that no attorneys fees are awardable on the contract to either side. Appellants offer no evidence to contradict or show that these findings are clearly erroneous. We affirm the District Court on the issue of fraud. McBeens' last two contentions alleging that appellants' damages were not caused by McBeens' misrepresentations and that punitive damages were improperly awarded have been adequatelyaddressed in theprevious discussion. / Affirmed on all issues.