Moore v. Bailey


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Docket Number: 2008-CA-01853-COA
Linked Case(s): 2008-CA-01853-COA ; 2008-CT-01853-SCT

Court of Appeals: Opinion Link
Opinion Date: 04-06-2010
Opinion Author: Roberts, J.
Holding: Affirmed

Additional Case Information: Topic: Real property - Timeliness of motion for summary judgment - M.R.C.P. 56(c) - Violation of Real Estate Brokers License Law - Section 73-35-21(1) - Section 73-35-31 - Disclaimer - Fraud
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee and Maxwell, JJ.
Non Participating Judge(s): Carlton, J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - REAL PROPERTY

Trial Court: Date of Trial Judgment: 10-02-2008
Appealed from: DeSoto County Circuit Court
Judge: Robert P. Chamberlin
Disposition: SUMMARY JUDGMENT GRANTED IN FAVOR OF THE APPELLEES
Case Number: CV07-0170 C/D

Note: Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down.

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Norma Slater Moore




CHRISTIAN T. GOELDNER, PAIGE ANN MCDOWELL



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: Robert M. Bailey, DeSoto Land Corporation and Annice Kyle WILLIAM P. MYERS, JAMIE MONSOUR HALL, RICHARD GLASSMAN, TODD MURRAH  
    Appellee #2:  

    Synopsis provided by:

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    Topic: Real property - Timeliness of motion for summary judgment - M.R.C.P. 56(c) - Violation of Real Estate Brokers License Law - Section 73-35-21(1) - Section 73-35-31 - Disclaimer - Fraud

    Summary of the Facts: Norma Moore sued Annice Kyle, Robert M. Bailey, and the DeSoto Land Corporation, raising numerous causes of action based on the underlying concept of misrepresentation incident to Moore’s purchase of a home. Kyle, Bailey, and DLC all successfully moved for summary judgment. Moore appeals.

    Summary of Opinion Analysis: Issue 1: Timeliness of motion for summary judgment Moore argues that Kyle failed to provide adequate notice of the hearing on her motion for summary judgment. Pursuant to M.R.C.P. 56(c), Kyle was required to provide Moore with at least ten days’ notice in advance of a hearing on her motion. Accordingly, to meet the September 5, 2008, deadline for scheduling a hearing, as set forth in the agreed scheduling order, Kyle would have had to provide Moore with a notice of hearing on or before August 26, 2008. There was no error in the circuit court’s decision to allow Kyle to schedule the hearing on her motion for summary judgment. Kyle filed her motion for summary judgment within the agreed scheduling order’s deadline. Moore never claimed that she received untimely notice of Kyle’s motion for summary judgment. She was not ambushed by the motion. Additionally, the hearing on Kyle’s motion took place thirteen days after Kyle had filed her motion. Moore suffered no prejudice due to the shortened period of time between the time she received notice of a hearing date and the actual hearing date. Issue 2: Statutory cause of action In her complaint, Moore claimed that she was entitled to recover damages from Kyle pursuant to the Real Estate Brokers License Law of 1954 set forth in sections 73-35-1 through -37. Moore argues the circuit court erred by holding that Moore was not qualified to recover damages from Kyle pursuant to any statutory provision within the Real Estate Brokers License Law of 1954. Section 73-35-21(1) lists the grounds by which the MREC may justify refusing an applicant’s request for a real estate broker’s license. Section 73-35-21(1) also addresses the circumstances under which the MREC may revoke or suspend an existing real estate broker’s license. There is no provision in section 73-35-21 that operates as a private cause of action that a disgruntled purchaser may bring against a real estate broker. Section 73-35-31(1) sets forth punitive measures in the form of potential penalties or imprisonment for violations of the Real Estate Brokers License Law of 1954. The cornerstone of this issue is whether Moore qualifies as a “person aggrieved,” within the context of section 73-35-31(2). The statute applies to situations in which a foreign broker or agent receives a commission from either the buyer or the seller; so that the foreign broker or agent is penalized for his unlicensed transaction. Under the circumstances of this case, section 73-35-31(2) is not a statutory mechanism that Moore may use to pursue a civil remedy against Kyle. Issue 3: Disclaimer Moore’s argument that the court erred in finding that a disclaimer absolved Kyle of all liability is moot, since Moore failed to demonstrate the existence of any genuine issues of material fact regarding her fraud claims. Issue 4: Fraud Moore argues there were genuine issues of material fact incident to all six of her causes of action for fraud. To demonstrate a prima facie case of fraud, a plaintiff must show a representation that is false and material that the speaker knew was false or was ignorant of the truth combined with the speaker’s intent that the listener act on the representation in a manner reasonably contemplated combined with the listener’s ignorance of the statement’s falsity and the listener’s reliance on the statement as true with a right to rely on the statement, and the listener’s proximate injury as a consequence. Moore claims that Kyle knew that she falsely represented the age of the home. The initial property-disclosure statement indicated that the property was “new.” However, the amended property-disclosure statement indicated that the property was nine to twelve months old. Accordingly, Moore was correctly informed about the age of the construction. Moore claims that she was fraudulently told that “DLC/Bailey had nothing to do with the construction of the home and merely held it as investment property.” Moore put forth no evidence that she somehow suffered damages simply because she was told that Bailey or DLC was not a builder. Moore claims she was fraudulently told that “no additions, renovations, or alterations had been made to the home during DLC’s ownership.” Because there was no evidence that Moore suffered a proximate injury based on any representation to that effect, there was no genuine issue of material fact regarding that element of a prima facie case of fraud. Moore claims she was fraudulently told that “all work on the home had been done by licensed professionals in compliance with the building code and state law.” The amended property-disclosure statement reflects that Moore was told that the “residence [was] built in conformity with an approved building code.” It is undisputed that the home passed all inspections required by the DCPC. Moore claims that she was fraudulently told that “there was not, nor had there ever been, mold, mildew or rot present in the home.” Moore’s affidavit did not include any evidence within her personal knowledge that created a genuine issue of material fact. Instead, Moore’s affidavit merely stated that unspecified neighbors would testify that the home was open to the elements for some time.


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