Bingham v. Rasekh

IN THE UTAH COURT OF APPEALS

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Marie Bingham,

Plaintiff and Appellant,

v.

Kal Rasekh, et al.,

Defendants and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010651-CA
 

F I L E D
(December 18, 2003)
 

2003 UT App 434

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Third District, Salt Lake Department

The Honorable Timothy R. Hanson

Attorneys: Ronald S. George, Salt Lake City, for Appellant

Paul D. Veasy and R. David Grant, Salt Lake City, for Appellee

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Before Judges Bench, Greenwood, and Orme.

BENCH, Judge:

Summary judgment is proper when "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). An appellate court "view[s] the facts in a light most favorable to the losing party below" and gives "no deference to the trial court's conclusions of law." Blue Cross & Blue Shield of Utah v. State, 779 P.2d 634, 636 (Utah 1989).

The trial court granted Rasekh summary judgment on the issue of breach of fiduciary duty because he fulfilled his duties as a dual agent under rule 162-6-2.16.3.2 of the Utah Administrative Code. Bingham did not produce evidence tending to show a breach of any of the fiduciary duties listed in the rule; therefore, summary judgment on this issue was proper.

As for Rasekh's alleged oral promise to sell the Hirschi Center, Rasekh was precluded from selling the property because Bingham had listed it exclusively with VRUtah. See Cahoon v. Cahoon, 641 P.2d 140, 144 (Utah 1982) ("One party cannot by willful act or omission make it impossible or difficult for the other to perform and then invoke the other's nonperformance as a defense."). Rasekh's alleged promise to purchase the Hirschi Center falls within the statute of frauds. See Utah Code Ann. § 25-5-3 (1998).

While the existence of a confidential relationship is normally a question of fact, see Von Hake v. Thomas, 705 P.2d 766, 769 (Utah 1985), "[w]hen the evidence is insufficient to support a verdict, the trial court has a duty to decide the issue." Rhoads v. Harvey Publ'ns, Inc., 700 P.2d 840, 846 (Ariz. Ct. App. 1984); see also Kuhre v. Goodfellow, 2003 UT App 85,¶¶20-21, 69 P.3d 286 (affirming trial court's dismissal of plaintiff's confidential relationship claim); State Bank of S. Utah v. Troy Hygro Sys., Inc., 894 P.2d 1270, 1275 (Utah Ct. App. 1995) (finding confidential relationship claim failed as a matter of law). Here, Bingham failed to adduce sufficient evidence to defeat summary judgment. "A confidential relationship arises when one party, having gained the trust and confidence of another, exercises extraordinary influence over the other party." Von Hake, 705 P.2d at 769. Even if we were to assume that a confidential relationship existed between Bingham and Rasekh, Bingham's independent investigation of the Hirschi Center would extinguish Bingham's claim. Bingham's investigation and subsequent behavior demonstrate that she did not relinquish control over her own decision-making, see id. at 770; therefore, it cannot be said that Rasekh exercised extraordinary influence over her.

Before bringing a claim for negligent misrepresentation, Bingham was required to exercise "such degree of care to protect [her] own interests as would be exercised by an ordinary, reasonable and prudent person under the circumstances." Jardine v. Brunswick Corp., 18 Utah 2d 378, 423 P.2d 659, 662 (1967). Bingham visited the Hirschi Center a number of times, independent of Rasekh, consulted a friend and family members about the purchase and possible renovations, and looked over the financial statements and discussed them with the Hirschis' accountant. Rasekh had allegedly told Bingham that the financial statements were not accurate because the personal living expenses were combined with the operating expenses. The Hirschis' accountant told Bingham that he could not extract the personal living expenses from the operating expenses. Bingham alleges that Rasekh thereafter persuaded her that he had analyzed the financial statements and that the business could support her family because it had been supporting two families.

Knowledge of the falsity of the representation is not a requirement of negligent misrepresentation.(1) Bingham need only prove that Rasekh acted "carelessly or negligently" with regard to the veracity of his representations. Robinson v. Tripco, 2000 UT App 200,¶13, 21 P.3d 219. Therefore, Bingham may recover any damages stemming from an injury caused by "reasonable reliance upon [Rasekh's] careless or negligent misrepresentation of a material fact" if Rasekh "had a pecuniary interest in the transaction, was in a superior position to know the material facts, and should have reasonably foreseen that [Bingham] was likely to rely upon the fact." Price-Orem Inv. Co. v. Rollins, Brown & Gunnell, 713 P.2d 55, 59 (Utah 1986). While Bingham's affidavit indicates that she also relied upon and trusted the Hirschis, the bulk of her affidavit focuses on the trust she placed in Rasekh. Bingham's claim for negligent misrepresentation should not have been decided summarily on the record before the district court.

We reverse summary judgment on Bingham's claim for negligent misrepresentation and affirm summary judgment on her other claims.

______________________________

Russell W. Bench, Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge

1. In Price-Orem Investment Co. v. Rollins, Brown & Gunnell, 713 P.2d 55 (Utah 1986), the supreme court noted that "[a]lthough the cause of action for negligent misrepresentation grew out of common law fraud, the elements of fraud need not be independently established . . . . Indeed, by its very terms, negligent misrepresentation does not require the intentional mental state necessary to establish fraud." Id. at 59 n.2; see also Robinson v. Tripco, 2000 UT App 200,¶13, 21 P.3d 219 ("The tort of negligent misrepresentation . . . carries a lesser mental state, requiring only that the seller act carelessly or negligently.").