Dominquez, et al. v. Palmer, et al.
| Docket Number: | 2006-CA-01752-COA Linked Case(s): 2006-CA-01752-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-27-2007 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contract - Standard of review - Oral contract - Reasonable efforts - Breach of fiduciary duty - Waiver of arbitration - Section 75-24-15 - Emotional distress Judge(s) Concurring: KING, C.J., LEE, P.JJ., MYERS, P.JJ., GRIFFIS, J., BARNES, J., ISHEE, J., ROBERTS, J., CARLTON, JJ. Non Participating Judge(s): Irving, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 09-15-2006 Appealed from: Forrest County Circuit Court Judge: Robert Helfrich Disposition: GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS Case Number: C1-I03-0075 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | SANDRA K. DOMINQUEZ AND THOMAS GARNER |
ORVIS A. SHIYOU |
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| Appellee: | JEFF PALMER, INDIVIDUALLY, MORTGAGE EQUITY LENDING, INC., WES BREWER D/B/A WES BREWER CATTLE COMPANY AND WES BREWER, INDIVIDUALLY | MICHAEL ADELMAN |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Contract - Standard of review - Oral contract - Reasonable efforts - Breach of fiduciary duty - Waiver of arbitration - Section 75-24-15 - Emotional distress |
| Summary of the Facts: | Sandra Dominquez and her husband, Thomas Garner, contacted Mortgage Equity Lending, Inc. about obtaining an equity loan against their home. They claim to have initially met with Mortgage Equity’s agent, Wes Brewer. At the first meeting, they allege that they completed a loan application and discussed the financing terms. At the next meeting with Brewer, Dominquez claims that he promised that she and her husband would be able to close on a loan by Thanksgiving of that year. When this date passed, Dominquez said that Brewer assured her that it would close soon. The record shows that Brewer could not secure a loan for the couple, and it also shows that he did attempt to get them a loan. Prior to requesting the services of Mortgage Equity, Dominquez and Garner had sought the services of Southeastern Financing, which was also unable to obtain financing for them. When Brewer later applied for a loan solely in Garner’s name, however, he was able to secure $80,000 worth of financing. Garner then used the $80,000 loan to buy his wife’s house for $127,000. Dominquez and Garner filed suit against Jeff Palmer, individually, Mortgage Equity Lending, Inc., Wes Brewer d/b/a Wes Brewer Cattle Co., and Wes Brewer, individually. The defendants filed a motion for summary judgment which the court granted. Dominquez and Garner appeal. |
| Summary of Opinion Analysis: | Issue 1: Standard of review Dominquez argues that summary judgment was improper because Palmer failed to support his motion with an affidavit. Palmer’s motion for summary judgment sufficiently alleged that Dominquez had not presented any genuine issues of material fact. The burden then fell on Dominquez to present affirmative evidence to show that there were such genuine issues of material fact. Therefore, there is no merit to this claim. Issue 2: Oral contract Dominquez argues that the court’s finding, that no contract existed because she could not identify any terms “sufficiently definite to be enforceable,” was in error. Any conduct of one party from which the other party may draw the inference of a promise is effective as such and the conduct of the parties is viewed as a reasonable man would to determine the existence or not of the contract implied in fact. Dominquez claims there was an oral contract that required Palmer to obtain a mortgage loan for her within thirty days. However, there was no formal writing, and none of the parties can point to specific terms of the alleged contract to which they were to be held. Dominquez ignores the fact that Brewer did attempt to get a loan and, ultimately, he was successful in obtaining some financing in Garner’s name. Instead she complains that he promised to have the loan within the thirty days and that he never even tried to find a loan until after that period had expired. The trial court’s findings were that Dominquez’s poor credit rating was responsible for Brewer’s initial inability to obtain a loan for her. Even taking the evidence in the light most favorable to Dominquez, the trial court was not in error in granting summary judgment. What she provided to the court were undeveloped assertions that lacked any specific evidence and which were insufficient to create any questions of material fact. Issue 3: Reasonable efforts Dominquez argues that Brewer did not use reasonable care nor his best efforts in seeking a loan on her behalf. Dominquez does not, however, specify what Brewer should have done to fulfill the alleged best effort requirement. Not only was there no specific evidence of a contract, but Dominquez also failed to demonstrate how, beyond exceeding the allegedly agreed-to thirty days, Brewer did not use his best efforts to find a loan. Her argument ignores Dominquez’s admittedly bad credit history and the fact that, just prior to contacting Brewer, Southeastern Financing had also been unable to get a loan for Dominquez. Issue 4: Breach of fiduciary duty There are no facts here to suggest that a fiduciary relationship arose between Dominquez and Brewer or the other appellees. This was merely an armslength business transaction, and there was no evidence to suggest that anyone exercised any dominion and control over Dominquez. With regard to her claim of fraud, Dominquez’s claim contains no allegations of specific instances of fraud. Issue 5: Waiver of arbitration Dominquez argues that it was improper to grant summary judgment on her claim under section 75-24-15. Dominquez admits that she did not take any steps to resolve her claim through informal resolution as required by the statute. Accordingly, the trial court did not err in granting summary judgment on this claim. Issue 6: Emotional distress Dominquez’s claims for emotional distress, negligent supervision, and piercing the corporate veil alleged no issues of material fact, so they were properly dismissed. |
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