Kiernan v. Creech

268 P.3d 312, 2012 Alas. LEXIS 20, 2012 WL 163907

• Court: Alaska Supreme Court
• Decided: January 20, 2012
• Docket: No. S-13230
• Status: Published

Opinions

OPINION

CARPENETI, Chief Justice.

I. INTRODUCTION

Two parties agreed orally to purchase a commercial towing lot, even though title to the lot would be in one party's name only. The parties agree that they split equally all costs associated with the property, including purchase and development costs, and that they used the property jointly. They dispute whether their oral agreement provided that. they would co-own the property, or that the non-titled party would lease from the titleholder. The title-holder moved for summary judgment on the ground that the statute of frauds barred any oral co-ownership agreement between the parties. The superior court granted the motion. The non-titled party appeals.

We reverse because the substance of the oral agreement is a disputed fact material to resolving whether an exception to the statute of frauds applies. If the non-titled party can prove by clear and convincing evidence that the parties had a contract for co-ownership with definite terms, he may be able to sue-ceed on his claims that promissory estoppel or the part performance doctrine make this contract enforceable despite the statute of frauds.

II. FACTS AND PROCEEDINGS

A. Facts

In 2001, Bill Kiernan owned American Towing & Recovery (Kiernan) and Willie Creech owned Vulcan Towing & Recovery (Creech).¹ That year Kiernan and Creech decided to share a lot for their towing businesses. Kiernan asserts that they agreed to buy the lot jointly, but, because Kiernan had a substantial outstanding IRS debt, they agreed to put the lot in Creech's name alone. Creech asserts that they agreed Creech would buy the lot and Kiernan would have an informal lease-to-purchase agreement if Kiernan resolved his IRS problems. They agree that they were to split all costs associated with the lot evenly. The parties did not put their agreement in writing. While Creech asserts that, under the oral agreement, Kiernan was merely a lessee with a conditional option to purchase a 50% interest, Kiernan testified in a sworn deposition that, in exchange for paying half of the costs, he was to receive a 50% ownership in the lot.

Creech purchased the lot in the name of his towing company only, and arranged the bank loan. Kiernan paid half of the earnest money, half of the down payment, and half of the closing costs to Creech. The parties evenly split the costs of improving the property for their use, including building a drainage culvert, filling the lot and paving the driveway, fencing the lot, hooking up utilities, and installing lights Each month Kiernan paid Creech $776.21, which Kiernan claimed was half of the monthly mortgage payment. Kiernan also paid Creech half of the utility costs and property taxes. As of May 2008, Kiernan had not solved his problems with IRS debt.

The relationship between the parties eventually broke down. In 2007 Kiernan became aware that Creech had taken out a second mortgage on the property without telling him, and Kiernan sued Creech.

B. Proceedings

Kiernan brought suit on several grounds, all of which rested on one of two theories: (1) that Kiernan and Creech had an enforceable agreement to co-own the lot, or (2) that Kiernan and Creech were partners under the Uniform Partnership Act. Creech moved for summary judgment on both the ownership and partnership theories. Kiernan opposed only the motion as to the ownership theories. Superior Court Judge Peter A. Michalski granted summary judgment for Creech on the grounds that the statute of frauds made any oral co-ownership agreement between the parties unenforceable and that no exception to the statute of frauds applied.

The superior court first rejected Kiernan's argument that the part performance exception to the statute of frauds applied, holding that Kiernan's alleged part performance was "consistent with either a purchase or a lease arrangement," and not "notorious." The court also rejected Kiernan's argument that the promissory estoppel exeeption to the statute of frauds applied, because there was "substantial ambiguity concerning what the parties allegedly agreed to." The court concluded that "because of the uncertainty as to the terms of agreement, the exceptions of part performance and estoppel do not apply." Holding that Kiernan's remaining claims required either an enforceable co-ownership agreement or partnership to sustain them, the court dismissed them.

Kiernan appeals.

III. STANDARD OF REVIEW

We review a superior court's grant of summary judgment de novo.² Summary judgment is appropriate only when the moving party establishes that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.³ We draw all reasonable factual inferences in favor of the party against whom summary judgment was granted,⁴ in this case, Kiernan. When we review a grant of summary judgment and disputed facts exist, we assume to be true the sworn allegations of the party against whom summary judgment was granted.⁵

IV. DISCUSSION

A. The Promissory Estoppel Exception To The Statute Of Frauds May Apply In This Case.

The superior court rejected Kier-nan's argument that the promissory estoppel exception to the statute of frauds applies in this case "because of the uncertainty as to the terms of agreement." But the terms of the agreement are a disputed question of material fact, and the agreement Kiernan alleges existed could be sufficiently specific to support promissory estoppel. If he can establish at trial, by clear and convincing evidence,⁶ the terms of the agreement that he alleges, it is possible that he could succeed on this claim.

The doctrine of promissory estop-pel allows the enforcement of contract-like promises despite a technical defect or defense that would otherwise make the promise unenforceable.⁷ The elements of promissory estoppel are: "(1) an 'actual promise' that induces the action or forbearance; (2) the action or forbearance was actually foreseen or reasonably foreseeable; (8) the action or forbearance amounted to a substantial change of position; and (4) enforcement of the promise is necessary in the interest of justice." ⁸

We have both upheld and denied the use of promissory estoppel as an exception to the statute of frauds in the case of oral agreements that last for more than one year. We upheld it in Alaska Democratic Party v. Rice,⁹ observing that "[clommentators have noted that 'there is no question that many courts are now prepared to use promissory estoppel to overcome the requirements of the statute of frauds." " In that case we upheld an oral employment agreement lasting two years.¹⁰ We denied the use of promissory estoppel in Valdes Fisheries Development Ass'n v. Alyeska Pipeline Service Co.,¹¹ because the alleged oral contract in that case (for lease of land) did not establish two critical terms: the price and duration of the lease.¹²

Creech argues that, like the agreement in Valdez Fisheries, the agreement in this case is too indefinite to support the use of promissory estoppel to overcome the statute of frauds, but he points only to the essential dispute in this case: whether the contract was for an ownership share or a lease arrangement.¹³ We conclude that this issue is not appropriate for resolution on summary judgment. As noted, the alleged oral contract to lease in Valdez Fisheries unquestionably did not provide for price and duration, two terms material to a lease.¹⁴ The oral contract that Kiernan alleged in his sworn deposition does not suffer these disabilities: A sale has no duration, and the price was half of all costs associated with ownership of the property. In return for paying half of the costs, Kiernan alleges that he would receive a 50% ownership interest in the lot. According to Kiernan, his ownership interest vested at the time of purchase. And the parcel of land in question is well-defined. Taking Kiernan's sworn allegations as true, as we must in reviewing a grant of summary judgment,¹⁵ we conclude that a trier of fact could determine that there are no material ambiguous terms. There is simply a straightforward dispute of fact for the trier to resolve: whether the agreement called for co-ownership or a lease.¹⁶

We remand because promissory estoppel may apply in cases where the key terms of the oral agreement are not ambiguous.¹⁷ We thus join the many jurisdictions that recognize some form of promissory estoppel as an exception to the statute of frauds in land transactions.¹⁸

B. The Part Performance Exception To The Statute Of Frauds May Apply In This Case.

The part performance doctrine is a particular application of promissory estop-pel in the context of land transfer contracts that do not comply with the statute of frauds.¹⁹ Under the part performance doe-trine, an oral agreement for the sale of land may be specifically enforceable if the purchaser has acted in reliance on the agreement by, in addition to paying some consideration, taking possession of the land and making improvements on the land.²⁰ It also requires that the contract for sale be "reasonably definite and certain as to its terms." ²¹ Thus, the doctrine of part performance is similar to the doctrine of promissory estoppel in that the purchaser must substantially change his or her position-by payment, possession, and improvement of the property-pursuant to an oral agreement.

The superior court, addressing part performance, stated why it rejected Kiernan's argument based on the doctrine:

The plaintiffs argue that this case should be taken out of the Statute of Frauds by the doctrines of promissory estoppel or part performance. However, part performance requires first, that plaintiffs show by clear and convincing evidence that there was payment, continuous and notorious use and that improvements were made to the property. Second, plaintiffs must prove the existence of an oral contract sufficiently definite and certain in its terms to warrant a grant of specific performance. Although plaintiffs provided one-half of the down payment and made improvements to make the property a tow lot, these actions are consistent with either a purchase or a lease agreement. Further, Kiernan's use was consistent as a leaseholder and cannot be construed as notorious.... Therefore, because of the uncertainty as to the terms of agreement, the exceptions of part performance and estoppel do not apply.

We consider each of these arguments in turn.

First, we disagree that Kiernan's performance is consistent with a lease of half the property. Although Creech claims that the parties agreed to a lease in which Kiernan would "pay half of what it would cost to get into this property, these are very unusual terms. It is not normal for a lease to require the tenant to pay the down payment, earnest money, and closing costs on property the tenant leases. Even the most stringent commercial leases-in which the tenant pays real estate taxes, mortgage interest, maintenance, and insurance-do not require the tenant to cover the landlord's expenses in purchasing the property.²² In fact, one of the generally accepted advantages of such a lease, from the tenant's point of view, is that it gives ownership-like control without requiring a capital investment.²³ Here, however, the evidence suggests that Kiernan has made one-half of all capital expenditures. Thus, we are not convinced that Kiernan's payments are "consistent with either a purchase or a lease agreement" because they are quite unlike the payments a lessee would make.

Furthermore, Creech has not proven the existence of a lease any more than Kiernan has proven the existence of a co-ownership agreement. Creech argues that Kiernan's actions were "consistent not only with an intended purchase but also with the lease that is shown by testimony and the consistent history of monthly receipts for 'rent.'" However, this is a factual argument appropriately directed to the trier of fact, not one sufficient for summary judgment as a matter of law. Thus, we conclude that it was error for the superior court to rely on this rationale in granting Creech summary judgment.

We also disagree with the superi- or court's assertion that part performance requires "continuous and notorious" posses-gion in all cases, including cases such as this one where the alleged oral contract is for joint ownership and possession. It is true that we generally require exclusive and notorious possession.²⁴ But we are persuaded by the opinions of courts from other jurisdictions that have waived these requirements when faced with oral contracts providing that the parties were to share the property.²⁵ Those courts hold that, in such cases, the party asserting part performance must have possessed the property to the full extent of the alleged oral contract.²⁶ We adopt that approach. If the superior court on remand finds that the parties' agreement called for joint possession of the property, then the court should waive the exelusivity and notoriety requirements, because they would be impossible to meet under these cireumstances.

Finally, in addition to payment, possession, and improvements, a party asserting the part performance exception to the statute of frauds must show that the oral contract was sufficiently definite to be specifically enforced.²⁷ As discussed above, the dispute over the terms of the agreement renders this case inappropriate for summary judgment, but it does not necessarily establish that the terms of the agreement were uncertain or ambiguous. If Kiernan can prove, by clear and convincing evidence, that the terms of the contract were as he alleges, and were therefore not ambiguous, he will have met the requirement for relief under the contract.

C. Kiernan's Other Claims

Because we have determined that factual disputes precluded summary judgment on Creech's argument that defenses to the statute of frauds were not viable, we also conclude that Kiernan's numerous other claims resting on a co-ownership or contract theory must be remanded for further proceedings.²⁸ These claims are breach of fidu-clary duty, breach of covenant of good faith and fair dealing, breach of contract, and violation of the Alaska Securities Act, We likewise conclude that it was error to dismiss Kiernan's unjust enrichment claim.²⁹ But we reject Kiernan's argument that the superior court erred in dismissing his claim for conversion on statute of limitations grounds. That claim was premised upon his exclusion from the property,³⁰ and Kiernan admitted he knew about the exelusion at the time that the limitation period began to toll. Therefore, the superior court properly barred the claim.

v. CONCLUSION

Because the terms of the agreement between Kiernan and Creech are in dispute and are material to resolution of Kiernan's contract-based claims, we REVERSE the grant of summary judgment on the contract-based claims and REMAND them to the superior court for proceedings consistent with this opinion. Because the unjust enrichment claim does not depend on the existence of a contract, we REVERSE the dismissal of that claim and REMAND for proceedings consistent with this opinion. Because the superior court correctly dismissed the conversion claim on statute of limitations grounds, we AFFIRM the dismissal of that claim.

CHRISTEN, Justice, with whom FABE, Justice, joins, dissenting.

1 . Subsequently, both Kiernan and Creech transferred ownership in their towing companies to one of their children. At the time of the superior court's order Christine Pfeiffer, Kiernan's daughter, owned American Towing & Recovery and Justin Creech owned Vulcan Towing & Recovery.

2 . Valdez Fisheries Dev. Ass'n v. Alyeska Pipeline Serv. Co., 45 P.3d 657, 664 (Alaska 2002).

3 . Id.

⁴

5 . Angleton v. Cox, 238 P.3d 610, 612 n. 1 (Alaska 2010) (citing Mat-Su/Blackard/Stephan & Sons v. State, 647 P.2d 1101, 1102 n. 1 (Alaska 1982)).

6 . The clear and convincing evidence standard applies to promissory estoppel claims. See King v. Richards, 584 P.2d 50, 51 (Alaska 1978). Creech argues that there is a presumption that he is the sole owner because he is the sole recorded owner, and he cites Sugg v. Morris, 392 P.2d 313 (Alaska 1964), in support of this argument. That case did not discuss the statute of frauds. Although we agree with Creech that such a presumption exists, we disagree that it adds anything to the barrier that the statute of frauds creates in this case. The clear and convincing evidence standard does not get any higher when the opposing party is also the sole title holder.

7 . Alaska Trademark Shellfish, LLC v. State, Dep't of Fish & Game, 172 P.3d 764, 768 (Alaska 2007) (quoting Brady v. State, 965 P.2d 1, 10 (Alaska 1998)).

8 . Id. at 766 (citing Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1284 (Alaska 1985)). See also Restatement (Seconp) or Contracts § 90 (1981) (establishing similar elements when defect in the contract is failure of consideration); ReSTATEMENT (SEconp) or Contracts § 139 (1981) (establishing similar elements when defect in contract is non-compliance with the statute of frauds).

9 . 934 P.2d 1313 (Alaska 1997).

10 . Id. at 1316-17 (citing 2 Artuur L. Cormm Corem on Contracts § 281A (1950 & Supp. 1966)).

11 . 45 P.3d 657 (Alaska 2002).

12 . Id. at 668-69.

13 . Creech's appellate argument on this point follows:

Kiernan claims that Willie Creech promised him a half-interest in the Vulcan property, Willie contends that they had a contingent lease-purchase arrangement by which he promised to make Kiernan a co-owner of the property and apply his lease payments to the purchase if Kiernan ever got his financial affairs in order, such that a co-owner relationship would not be risky to Willy Creech's own financial interests-something that never happened.

(Emphasis in original; internal citations omitted.) And we note that in the superior court Creech did not assert facts under oath that would have established that key terms of the contract were too indefinite to enforce.

14 . 45 P.3d at 668-69.

15 . See supra note 5 and accompanying text.

16 . Kiernan also argues that the critical language in Valdez Fisheries-"promissory estoppel cannot be used to defeat the statute of frauds' requirement that an agreement for a lease with a term that exceeds one year must be in writing where . the purported oral agreement contains substantial ambiguity as to key terms," 45 P.3d at 670,-was dicta, but we disagree. In Valdez Fisheries, the plaintiff and defendant were in a three-way transaction in which the plaintiff would purchase land from a third party and the defendant would lease it. Id. at 663. The plaintiff believed that the defendant had agreed to lease the property, and in reliance on that agreement, purchased the land to be leased. Id. at 663-64. But the plaintiff did not even claim that the parties had reached an agreement about the price or term of the lease. Id. at 665. The plaintiff alleged two bases for the contract: first, a letter stating an intent to enter "the process of negotiating a contract as soon as possible"; and second, an oral promise that the defendant would lease the property, although that oral promise did not include price or duration for the lease. Id. at 668. We first held that the letter, which only promised to negotiate, was not an enforceable contract. Id. at 667. We then held that the alleged oral promise was too indefinite to support promissory estoppel: "'We ... decline to extend [Restatement (Second) of Contracts § 139] to cases involving the sale or lease of real estate[] in which the purported oral agreement is ambiguous as to key terms." Id. at 669.

17 . Neither party discusses whether Kiernan's actions were in reliance on the alleged oral promise, nor do they discuss the question whether injustice can only be avoided by enforcement of the oral agreement. Kiernan will have the burden of establishing these elements on remand.

18 . See, eg., Jacobson v. Gulbransen, 623 NW.2d 84, 90-91 ($.D.2001); Nessralla v. Peck, 403 Mass. 757, 532 N.E.2d 685, 688 (1989) (quoting Glass v. Hulbert, 102 Mass. 24, 36 (1869)) (stating doctrine only applies "where the party seeking relief suffers 'the infliction of an unjust and unconscientious injury and loss' "); Landow v. Georgetown-Inland West Corp., 454 A.2d 310, 313-14 (D.C.1982); Miller v. Lawlor, 245 lowa 1144, 66 N.W.2d 267, 272-73 (1954).

19 . See Restatement (Seconp) or Contracts § 129 (1981) emt. a (explaining that § 129 restates the part performance doctrine); Restatement (Second) or Contracts § 139 emt. a (noting "this Section overlaps in some cases with rules based on estop-pel or fraud.... Sections 128 and 129 state particular applications of the same principle to land contracts. ...").

20 . See Mitchell v. Land, 355 P.2d 682, 686 (Alaska 1960) ("It is a well established principle of law that the mere payment of the purchase price by the vendee, without other acts, is not sufficient as an act of part performance to take an oral contract for the sale of real estate out of the Statute of Frauds. ... However, when the vendee takes and retains possession in pursuance of the verbal agreement and makes improvements upon the land, he thereby acquires an equitable estate in the premises."); Jackson v. White, 556 P.2d 530, 534 n. 7 (Alaska 1976) (noting that party "met the requirements for part performance .. .-possession and improvements in reliance on the verbal agreement" (citations omitted)).

21 . Rego v. Decker, 482 P.2d 834, 837 (Alaska 1971) (quoting Alaska Creamery Prods., Inc. v. Wells, 373 P.2d 505, 510 (Alaska 1962)).

22 . See, e.g., Sauve v. Winfree, 985 P.2d 997, 998 (Alaska 1999) (describing a " 'triple-net' lease" as requiring the tenant to pay "all insurance, taxes, and costs of maintenance and repair for the leased premises"); Buack's Law Dictionary 972 (Ith ed. 2009) ("Lease: Net-Net-Net Lease": "A lease in which the lessee pays all the expenses, including the mortgage interest and amortization, leaving the lessor with an amount free of all claims.").

23 . See Wyle Labs., Inc. v. 128 Maryland Assocs., LLC, No. B158163, 2003 WL 21546112, at *7 (Cal.App. Sept. 4, 2003) (''The [triple net] lease entitles the landlord to rent net of costs for maintenance, repair, replacement, insurance, and taxes. The long-term net lease is essentially a financing device that gives the tenant the advantages of ownership without the investment of capital or direct obligation under a deed of trust and gives the owner of the property a return on his or her investment without the active responsibilities of investment management.") (quoting 6 Martuew Benoer, Caurornita Rear Estates Law & Practice § 154.10[2], at 154-10.1).

24 . Mitchell, 355 P.2d at 686. In this regard, Creech argues that "notorious" possession means that the owner could "see that a hostile flag was being flown over his property." Nome 2000 v. Fagerstrom, 799 P.2d 304, 309 (Alaska 1990) (quoting Shilts v. Young, 567 P.2d 769, 776 (Alaska 1977)) (discussing "notorious" in the context of adverse possession). Because the parties shared the property amicably, Creech argues, Kiernan's possession was neither exclusive nor notorious.

25 . See, eg., In re Shinoe's Estate, 212 Wis. 481, 250 N.W. 505, 508 (1933) (holding that, although generally part performance requires notorious, exclusive possession, "where the contract is for the conveyance of an undivided interest in the premises, the promisee who is in possession jointly with the promisor is in possession in the only way that the circumstances permit, and this should, it would seem, be sufficient"); Brown v. Freudenberg, 106 Ind.App. 692, 17 N.E.2d 865, 868 (1938) (holding that possession need not be exclusive and notorious for application of part performance where defendant promised that if plaintiff would live with and care for defendant for the rest of defendant's life, defendant would transfer property to plaintiff at defendant's death).

26 . Brown, 17 N.E.2d at 868 ("We believe it to be the rule that where the grantee takes such possession of the property as is consistent with the existing conditions and circumstances imposed by the contract ... specific performance should not be denied for the sole reason that the possession taken was not exclusive in the ordinary meaning of the term."). Shimoe's Estate, 250 N.W. at 508.

27 . Prokopis v. Prokopis, 519 P.2d 814, 816 (Alaska 1974). Kiernan compares his case to Proko-pis, but we do not find it helpful here. Although it arose from similar facts, the parties in that case did not appeal the holding that the non-titled party's performance was sufficient to meet the requirements of payment, possession, and improvements. In that case, the parties had no written agreement, but the party without title took possession of half a duplex and paid half the costs and mortgage to the title-holder believing he was getting a half interest. Id. at 815-16. The trial court found the non-titled party credible, and held that an oral agreement for co-ownership existed, as opposed to a lease, and that the plaintiff met the requirements of payment, possession, and improvements. Id. at 816. The title-holder did not appeal that ruling. Id. The only dispute was whether the oral contract was sufficiently definite to be enforced. Id. The court did not discuss the problems that the superior court found this case to present (Me., the consistency of the performance with a lease or the requirement that possession be exclusive and notorious).

28 . Neither party has addressed the statutory exception to the statute of frauds articulated at AS 09.25.020(4). We express no opinion regarding the application of this exception to the present case.

29 . The superior court dismissed this claim (and the other claims just remanded) on the grounds that it must fail because Kiernan had failed to show that a contract existed. But recovering restitutionary damages under a theory of unjust enrichment "does not depend on any actual contract, or any 'agreement between the parties, objective or subjective.'"" George v. Custer, 862 P.2d 176, 180 (Alaska 1993) (internal citation omitted).

30 . The superior court's order states: "The alleged 2004 conversion claim for exclusion from the premises could be a valid leasehold claim, but it is time barred by the statute of limitations."