URBIGKIT, Justice.
Cross appeals are presented, derived from consecutive installment-contract land sales, with buyer suing the real estate broker for land title and encumbrance misrepresentation as a fraud action, and the broker counterclaiming for a resale commission on a part of the purchased property.
Both litigants were unsuccessful in trial court, and we affirm, to their equal sufferance in denial.
We address the Willmschens’ appeal by affirming the trial court on disposition under stated Issue IV of their brief:
“WHETHER THE APPELLANTS WERE DAMAGED AS A RESULT OF THE FRAUDULENT MISREPRESENTATIONS OF THE APPELLEE,”
and as restated by appellee broker Meeker in his brief as Issue I:
“WHETHER PLAINTIFFS FAILED TO PROVE A PRIMA FACIE CASE OF DAMAGES AS A RESULT OF AN ALLEGED FRAUDULENT MISREPRESENTATION? (i.e. Whether the Appellants were damaged as a result of an ‘alleged’ fraudulent misrepresentation of the
Appellee
— ISSUE
IV
of Appellants’ brief).”
FACTS
This case involves consecutive sales of portions of a 320-acre parcel of land in Big Horn County, Wyoming. The first transaction occurred on May 1, 1981, when Larry W. Ellis and Janis M. Ellis sold the entire tract to Darrel R. Wagner and Teresa P. Wagner by a contract for deed. This contract required the escrow of a warranty deed from sellers to buyers; the escrow of a quitclaim deed from the buyers to the sellers; retention of the deeds by the escrow agent; and the sellers to consent to any whole or partial sale of the property by the buyers. A notice document of the existence of the sale was filed with the county clerk as the real estate transaction office of record. On October 7, 1981, the Wag-
ners assigned their acquisition interest (equitable estate) in the property to the Wyoming Production Credit Association of Cas-per (PCA), as a separate transaction loan security, by execution of an escrowed security transaction quitclaim deed and a recorded (April 9,1982) Notice of Assignment of Agreement.
On January 11, 1983, the Wagners listed the property for sale with Wes Meeker, d/b/a Meeker Agency. The listing agreement drafted by the agency real estate agent, Mr. Gifford, listed the only encumbrance as a “Mortgage to Larry Ellis.” A Meeker Agency representative subsequently went to the PCA office and was advised that the PCA would be willing to do anything it could to help accomplish resale of the property as would include security assignment release upon proportional payments to PCA for application on its loan to Wagners.
At this point in the title, the appellants, LeTisha and Stanley Willmschen, enter the picture by contacting the Meeker Agency about a land purchase, and were directed to an 80-acre parcel to be divided from the original 320 acres, and for which a purchase agreement was struck. An attorney was asked by Meeker to prepare a contract for deed, deeds, and escrow instructions for the transaction suitable for sale closing. A title insurance commitment was ordered for this transaction, and appellants, in mid-March of 1983, took possession of the 80 acres, subsequently closing on April 4,1983 and thus ending the first chapter of this saga when, by installment contract underlying the original sales installment contract, they had purchased 80 of the total 320 acres originally sold to Wagners. In essence, Wagners had undersold their purchase equity subject to agreed right of partial release of assignment debt encumbrance.
The following spring, appellants decided to resell the property, again splitting to create a 60-acre parcel and a 20-acre parcel. The 60-acre parcel was purchased by Dennis and Val Jean Beech through Meeker, who arranged for the sale documents to be prepared. This was done by the same attorney, who, aware of the PCA assignment, protectively provided not only that the contract for deed contain specific references to the prior agreements for deed, but also that a deed from Ellises to Wagners, and deed from Wagners to the appellants, as well as deed from appellants to Beeches should be placed in escrow.
Having completed the 60-acre sale to Beeches, the Willmschens, on May 16,1984, entered into a Deposit, Receipt, Offer and Acceptance typed agreement to sell the remaining 20-acre tract to Robert E. Claar, Carol A. Claar, and Robert E. Claar, Jr. Closing of the Claar sale for the 20 acres was to take place at a local bank. For reasons undisclosed in the record, the bank requested that the Willmschens leave the premises before the transaction could be closed, although the Claars as well as the Willmschens were present for that purpose. Nothing further was ever attempted or done thereafter to complete the transaction. Before the end of the month, the Willmschens vacated the 20-acre parcel, left the area, and discontinued payments to Wagners on the purchase obligation.
On December 16, 1985, the Willmschens filed suit against Wes Meeker, alleging three causes of action: (1) intentional misrepresentation (fraud); (2) punitive damages as a result of willful misrepresentation (fraud); and (3) violation of § 33-28-lll(a)(i), W.S.1977.
Appellee Wes Meeker filed a counterclaim for a $1,800 commission still due and owing on the Beech sale. The case was tried to the court starting October 15, 1986, and at the close of the case Meeker moved for a dí-
rected verdict
which was favored by dismissal of the complaint from which this appeal arrived. The trial was adjourned without defendant presenting his case on the counterclaim. That adverse court decision was followed by Willmschens’ motion for reconsideration, and objections to the defendant’s proposed order of dismissal. The saga ended January 27, 1987 when the trial court signed the Meeker order dismissing the Willmschens’ complaint but also dismissed the counterclaim to conclude the case by denied recovery to both parties.
PROOF OF DAMAGES
Although the facts in this case are complex, the law is not. Neither the Willmschens nor Meeker
proved their damages regardless of any fraud involved.
Generally, fraud without damage cannot serve as a foundation for an action of deceit.
Gulke v. Brock,
222 Cal.App.2d 459, 35 Cal.Rptr. 200 (1963); 37 C.J.S. Fraud § 40 at 288. To hold a broker liable for fraud one must prove: (1) falsity of the representation; (2) guilty knowledge or scienter; (3) intent to deceive or cause someone to believe the falsehood; (4) reliance on the misrepresentation which induced the purchaser to act; (5) actual deception; and (6) injury or damage to the person dealing with the broker.
Sanders v. Stevens,
23 Ariz. 370, 203 P. 1083 (1922); 12 C.J.S. Brokers § 107 at 308-309. The burden of proving the damages, beyond nominal ones, is upon the party seeking the recovery.
Adel v. Parkhurst,
Wyo., 681 P.2d 886, 892 (1984);
State ex rel. Scholl v. Anselmi,
Free access — add to your briefcase to read the full text and ask questions with AI
URBIGKIT, Justice.
Cross appeals are presented, derived from consecutive installment-contract land sales, with buyer suing the real estate broker for land title and encumbrance misrepresentation as a fraud action, and the broker counterclaiming for a resale commission on a part of the purchased property.
Both litigants were unsuccessful in trial court, and we affirm, to their equal sufferance in denial.
We address the Willmschens’ appeal by affirming the trial court on disposition under stated Issue IV of their brief:
“WHETHER THE APPELLANTS WERE DAMAGED AS A RESULT OF THE FRAUDULENT MISREPRESENTATIONS OF THE APPELLEE,”
and as restated by appellee broker Meeker in his brief as Issue I:
“WHETHER PLAINTIFFS FAILED TO PROVE A PRIMA FACIE CASE OF DAMAGES AS A RESULT OF AN ALLEGED FRAUDULENT MISREPRESENTATION? (i.e. Whether the Appellants were damaged as a result of an ‘alleged’ fraudulent misrepresentation of the
Appellee
— ISSUE
IV
of Appellants’ brief).”
FACTS
This case involves consecutive sales of portions of a 320-acre parcel of land in Big Horn County, Wyoming. The first transaction occurred on May 1, 1981, when Larry W. Ellis and Janis M. Ellis sold the entire tract to Darrel R. Wagner and Teresa P. Wagner by a contract for deed. This contract required the escrow of a warranty deed from sellers to buyers; the escrow of a quitclaim deed from the buyers to the sellers; retention of the deeds by the escrow agent; and the sellers to consent to any whole or partial sale of the property by the buyers. A notice document of the existence of the sale was filed with the county clerk as the real estate transaction office of record. On October 7, 1981, the Wag-
ners assigned their acquisition interest (equitable estate) in the property to the Wyoming Production Credit Association of Cas-per (PCA), as a separate transaction loan security, by execution of an escrowed security transaction quitclaim deed and a recorded (April 9,1982) Notice of Assignment of Agreement.
On January 11, 1983, the Wagners listed the property for sale with Wes Meeker, d/b/a Meeker Agency. The listing agreement drafted by the agency real estate agent, Mr. Gifford, listed the only encumbrance as a “Mortgage to Larry Ellis.” A Meeker Agency representative subsequently went to the PCA office and was advised that the PCA would be willing to do anything it could to help accomplish resale of the property as would include security assignment release upon proportional payments to PCA for application on its loan to Wagners.
At this point in the title, the appellants, LeTisha and Stanley Willmschen, enter the picture by contacting the Meeker Agency about a land purchase, and were directed to an 80-acre parcel to be divided from the original 320 acres, and for which a purchase agreement was struck. An attorney was asked by Meeker to prepare a contract for deed, deeds, and escrow instructions for the transaction suitable for sale closing. A title insurance commitment was ordered for this transaction, and appellants, in mid-March of 1983, took possession of the 80 acres, subsequently closing on April 4,1983 and thus ending the first chapter of this saga when, by installment contract underlying the original sales installment contract, they had purchased 80 of the total 320 acres originally sold to Wagners. In essence, Wagners had undersold their purchase equity subject to agreed right of partial release of assignment debt encumbrance.
The following spring, appellants decided to resell the property, again splitting to create a 60-acre parcel and a 20-acre parcel. The 60-acre parcel was purchased by Dennis and Val Jean Beech through Meeker, who arranged for the sale documents to be prepared. This was done by the same attorney, who, aware of the PCA assignment, protectively provided not only that the contract for deed contain specific references to the prior agreements for deed, but also that a deed from Ellises to Wagners, and deed from Wagners to the appellants, as well as deed from appellants to Beeches should be placed in escrow.
Having completed the 60-acre sale to Beeches, the Willmschens, on May 16,1984, entered into a Deposit, Receipt, Offer and Acceptance typed agreement to sell the remaining 20-acre tract to Robert E. Claar, Carol A. Claar, and Robert E. Claar, Jr. Closing of the Claar sale for the 20 acres was to take place at a local bank. For reasons undisclosed in the record, the bank requested that the Willmschens leave the premises before the transaction could be closed, although the Claars as well as the Willmschens were present for that purpose. Nothing further was ever attempted or done thereafter to complete the transaction. Before the end of the month, the Willmschens vacated the 20-acre parcel, left the area, and discontinued payments to Wagners on the purchase obligation.
On December 16, 1985, the Willmschens filed suit against Wes Meeker, alleging three causes of action: (1) intentional misrepresentation (fraud); (2) punitive damages as a result of willful misrepresentation (fraud); and (3) violation of § 33-28-lll(a)(i), W.S.1977.
Appellee Wes Meeker filed a counterclaim for a $1,800 commission still due and owing on the Beech sale. The case was tried to the court starting October 15, 1986, and at the close of the case Meeker moved for a dí-
rected verdict
which was favored by dismissal of the complaint from which this appeal arrived. The trial was adjourned without defendant presenting his case on the counterclaim. That adverse court decision was followed by Willmschens’ motion for reconsideration, and objections to the defendant’s proposed order of dismissal. The saga ended January 27, 1987 when the trial court signed the Meeker order dismissing the Willmschens’ complaint but also dismissed the counterclaim to conclude the case by denied recovery to both parties.
PROOF OF DAMAGES
Although the facts in this case are complex, the law is not. Neither the Willmschens nor Meeker
proved their damages regardless of any fraud involved.
Generally, fraud without damage cannot serve as a foundation for an action of deceit.
Gulke v. Brock,
222 Cal.App.2d 459, 35 Cal.Rptr. 200 (1963); 37 C.J.S. Fraud § 40 at 288. To hold a broker liable for fraud one must prove: (1) falsity of the representation; (2) guilty knowledge or scienter; (3) intent to deceive or cause someone to believe the falsehood; (4) reliance on the misrepresentation which induced the purchaser to act; (5) actual deception; and (6) injury or damage to the person dealing with the broker.
Sanders v. Stevens,
23 Ariz. 370, 203 P. 1083 (1922); 12 C.J.S. Brokers § 107 at 308-309. The burden of proving the damages, beyond nominal ones, is upon the party seeking the recovery.
Adel v. Parkhurst,
Wyo., 681 P.2d 886, 892 (1984);
State ex rel. Scholl v. Anselmi,
Wyo., 640 P.2d 746, cert. denied 459 U.S. 805, 103 S.Ct. 28, 74 L.Ed.2d 43 (1982);
Downing v. Stiles,
Wyo., 635 P.2d 808, 817 (1981);
Western National Bank of Lovell v. Moncur,
Wyo., 624 P.2d 765, 773 (1981);
Quinlan v. Jones,
27 Wyo. 410, 198 P. 352 (1921). Damages cannot be presumed.
State ex rel. Scholl v. Anselmi,
supra, 640 P.2d at 750. See
United States v. Winters,
224 F.Supp. 8 (D.Wyo.1963), for a case where adequate proof of damages of alleged governmental fraud was not shown.
In Parkhurst, this court was faced with a situation similar to the case at bar where punitive damages were sought on several claims, one of which was misrepresentation. This court there identified factors justifying an award of punitive damages, and concluded that no evidence was presented on the financial condition or the wealth of the defendant so the award of punitive damages was inappropriate.
In this case, this court need not even go that far because there simply is no proof in the record of any damages sustained by the Willmschens. Willmschens argue the Claars would not close because of the PCA security encumbrance. However, the record is devoid of any evidence why the deal between the Willmschens and the Claars did not close, and certainly there is no evidence that Claars were unwilling to close the transaction negotiated by Willm-schens. There is no question but that the PCA would release the assignment upon pro-rata payment so that proper title was available upon proper payment. The record only reflects that the closing was scheduled and that it did not occur because the Willmschens were asked to leave the bank where the closing was to take place.
Without more in the record, this court cannot find trial-court error to determine that the reason the closing did not occur arose from any title flaws or occasioned damage. It is a fundamental principle that underlies the damage assessment that a person injured shall only receive compensation commensurate with his loss, and no more.
Rocky Mountain Packing Co. v. Branney,
Wyo., 393 P.2d 131, 135 (1964);
Hunt v. Thompson,
19 Wyo. 523, 120 P. 181, 184 (1912). Although dismissal of plaintiffs’ complaint, in effect, occurred pursuant to Rule 41(b), W.R.C.P., which does require consideration of the evidence in the light most favorable to them including all reasonable inferences which may be deduced therefrom, this record fails to provide a factual basis as proof of damages which will justify reversal.
Osborn v. Manning,
Wyo., 685 P.2d 1121 (1984);
Amfac Mechanical Supply Co. v. Federer,
Wyo., 645 P.2d 73 (1982);
Fuller v. Fuller,
Wyo., 606 P.2d 306 (1980);
Angus Hunt Ranch, Inc. v. REB, Inc.,
Wyo., 577 P.2d 645 (1978).
SALES COMMISSION COUNTERCLAIM
In cross appeal, Meeker claims trial-court error in denial of an opportunity to present his case in chief on the counterclaim for the commission. The record reflects no court denial of the Meeker case on the counterclaim, but rather that Meeker failed to do anything, evidenced by the following dialogue after the trial court granted the Meeker motion for a directed verdict (motion to dismiss) on plaintiffs claims:
“MR. RISKE: If that’s what the Court wants to put on the record, that’s fine.
“THE COURT: It’s more persuasive that way to me.
“MR. RISKE: Okay. I guess we go home.
“THE COURT: Okay.
“MR. KOSKI: I will draft the Order and send it to you for approval as to form.
“THE COURT: Pardon?
“MR. KOSKI: I will draft an appropriate Order and send it to Don for his approval as to form. Okay?
“THE COURT: All right.
“MR. KOSKI: Thank you, Judge.
“THE COURT: All right.
“(At 10:08 A.M., the matter was completed.)”
Apparently everyone “went home,” the order of dismissal was prepared and approved as to form by Meeker’s attorney but not Willmschens, and the court executed and filed the order. As this dialogue shows, Meeker’s attorney drafted the order of dismissal which included his client’s counterclaim dismissal. This record cannot sustain Meeker’s appeal involving an issue now first presented on appeal.
Matter of Estate of Obra,
Wyo., 749 P.2d 272 (1988);
Davenport v. Epperly,
Wyo., 744 P.2d 1110 (1987);
Ricci v. New Hampshire Ins. Co.,
Wyo., 721 P.2d 1081 (1986);
ABC Builders, Inc. v. Phillips,
Wyo., 632 P.2d 925 (1981). Even if we were to go further than this sound appellate principle, we would have to hold that this was invited error which may not now be asserted as a ground for reversal since the error was induced or invited by the losing party.
Appeal of Williams,
Wyo., 626 P.2d 564, 571, cert. denied sub nom.
Williams v. Public Service Commission of Wyoming,
454 U.S. 896, 102 S.Ct. 394, 70 L.Ed.2d 211 (1981);
Weber v. Johnston Fuel Liners, Inc.,
Wyo., 519 P.2d 972, 978 (1974). A litigant cannot walk out of the courthouse, prepare and submit the judgment, and then on appeal complain about trial-court error in denial of his counterclaim for which no evidence was introduced or trial-court objection taken. This is a “went home and case concluded” result. Denial of a litigant’s day in court is not presented on this record where the litigant failed to object to trial conclusion or seasonably request an opportunity to present his counterclaimant evidence.
Affirmed.