Perl v. Grant

542 P.3d 396

2024 MT 13

Daniel PERL, Sandra Perl, Individually and as Trustees and Settlors of the D. & S. Perl Family Trust Dated August 24, 1998, Plaintiffs and Appellants,

v.Christopher GRANT, Individually and as Trustee and Settlor of the Grant Revocable Trust Dated July 18, 2008, the Grant Revocable Trust Dated July 18, 2008, and Grant Construction, LLP, Defendants and Appellees.

Christopher Grant, Individually and as Trustee and Settlor of the Grant Revocable Trust Dated July 18, 2008, the Grant Revocable Trust Dated July 18, 2008, and Grant Construction, LLP, Third Party Plaintiffs,

v.General One, Inc., W.I.N. Construction, Inc., Montana Insulation Contractors, Inc., Riley Landscape Construction, and John Does 1-5, Third Party Defendants.

DA 22-0343

Supreme Court of Montana.

Submitted on Briefs: March 1, 2023

Decided: January 30, 2024

APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-21-126, Honorable Amy Eddy, Presiding Judge

For Appellants: Kenneth K. Lay, Crowley Fleck PLLP, Helena, Montana

For Appellees: James R. Zadick, Ugrin Alexander Zadick, P.C., Great Falls, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Plaintiffs and Appellants Daniel Perl (Dan), Sandra Perl (Sandra), Individually and as Trustees and Settlors of the D. & S. Perl Family Trust Dated August 24, 1998 (Perl Trust) (collectively "the Perls") appeal from the November 16, 2021 Order and the accompanying June 13, 2022 Final Judgment issued by the Eleventh Judicial District Court, Flathead County. The District Court’s order granted the summary judgment motion of Defendants and Appellees Christopher Grant (Chris), Individually and as Trustee and Settlor of the Grant Revocable Trust Dated July 18, 2008, the Grant Revocable Trust Dated July 18, 2008 (Grant Trust), and Grant Construction, LLP (Grant Construction) (collectively "the Grants"), and denied the Perls’ cross-motion for partial summary judgment, determining the parties had entered into an enforceable settlement agreement regarding the purchase of real property and the release of claims related to the construction of the property.

¶2 We address the following restated issue on appeal:

Did the District Court err by granting the Grants’ motion for summary judgment and, denying the Perls’ motion for summary judgment?

¶3 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 In 2019, the Perls, through the Perl Trust, purchased a home located at 149 South Shooting Star Circle in Whitefish from the Grant Trust for $1,775,000. Grant Construction was the general contractor for the construction of the home. After buying the house, the Perls hired Grant Construction to do additional remodeling and improvements under two separate contracts—a $38,408 Home Improvement Contract and a $130,276 Deck Improvement Contract.

¶5 The Perls were dissatisfied with the quality of the construction and informed Chris and his wife, Rachelle Grant, about their dissatisfaction with the work performed. After several discussions attempting to reach a solution, Chris informed Dan he would no longer speak about the issue with him. Dan began communicating with Chris’s brother, Jay Grant (Jay), an independent consultant who worked with Grant Construction regarding the development of homes, including the subject property, in Whitefish. Throughout September and October of 2020, Dan reached out to Jay with four options for settling the Perls’ claims. One of Dan’s proposed options was for the Grants to buy back the property for $2,800,000 in exchange for settling the Perls’ claims regarding the house. Jay communicated the offer to the Grants, who countered with a purchase price of $2,500,000. Jay communicated the counteroffer to Dan, who rejected it.

¶6 Late in the evening of October 19, 2020, after the Grants’ $2.5 million counteroffer was rejected, Jay texted Dan:

Hi Dan, I have talked with Chris and Rachelle (MacKenzie says hi) and we are happy with all the terms you laid out (built in TVs, appliances, window coverings and ELFs stay, everything else goes, Jan 15 close, deposit paid on signing and remainder paid on close in cash). But 2.8 is a stretch for us

Dan responded to Jay the next morning:

Jay:

Glad we could reach agreement. What is the name and contact points of your attor- ney? Ours is Karl Rudbach and Ramlow & Rudbach in Whitefish.

Dan

Jay then replied to Dan:

Me too. Her name is Samantha Travis at Ogle, Worm and Travis.

At the direction of the Perls and the Grants, counsel for both parties spoke about the terms of the settlement, agreed to memorialize the terms in a buy-sell agreement and a separate general release, and agreed Attorney Travis would draft the documents. On October 30, 2020, Travis emailed the documents to counsel for the Perls. In her email to Attorney Rudbach, Travis wrote:

Thanks for the call last week on this case. As we discussed, attached are proposed Buy:Sell Agreement and Release for the Perls’ review. These documents have been approved by the Grants. You will notice that Jason Grant (Chris’ brother) will be the Buyer-I believe he and Mr. Perl have had direct communication on this. …

The Perls reviewed the documents and rejected several terms contained within. Dan then instructed his attorney to send a counteroffer to the Grants’ attorney.

¶7 The Perls filed the instant lawsuit on February 9, 2021, asserting numerous claims against the Grants regarding the construction and sale of the house. After filing an Answer, followed by an Amended Answer which brought a third-party complaint against subcontractors, the Grants moved for summary judgment on June 18, 2021. The Grants’ motion asserted the parties had entered into a binding, enforceable settlement agreement. The Perls thereafter filed a cross-motion for summary judgment asserting that, under the undisputed facts, the parties did not have an enforceable settlement agreement as a matter of law. The District Court held oral argument on the competing summary judgment motions on November 16, 2021. At the close of the hearing, the court ruled from the bench, granting the Grants’ summary judgment motion and denying the Perls’ cross-motion for summary judgment. The court determined the statute of frauds was satisfied and the parties entered into an enforceable settlement agreement for the purchase of the property in exchange for the release of claims related to the construction of the property. The court further ordered the parties would have 120 days to finalize the agreement for the purchase of the property and stipulate to dismissal, and set a show cause hearing for May 31, 2022, in the event the agreement was not completed, at which time the court would be prepared to order specific performance of the agreement. The District Court’s written order followed that same day.

¶8 On November 17, 2021, the day after the District Court’s order on the competing summary judgment motions, the Perls filed a Notice of Dismissal of Lawsuit with Prejudice. The Perls’ notice recognized the District Court had ordered "that the parties finalize a settlement," but stated the Perls "instead dismiss their Complaint against the Defendants with prejudice and relieve Defendants of any settlement obligations." The same day, the Grants filed a Response in Objection to Plaintiffs’ Notice to Dismiss with Prejudice. On February 7, 2022, the District Court issued an Order denying the Perls’ Notice to Dismiss with Prejudice, noting that "[u]ntil a joint stipulation is filed showing clear evidence that the Property has been purchased as agreed to in the settlement agreement, the [c]ourt will not dismiss the suit." On March 25, 2022, the Perls filed a Motion to Certify Order for Immediate Appeal. The Grants filed a brief opposing immediate certification on April 8, 2022. On April 25, 2022, the District Court issued an Order denying the Perls’ motion for immediate certification.

¶9 The District Court held the previously-scheduled show cause hearing on May 31, 2022, at which time the court determined it was the "proper junction in this proceeding … to certify the order is final for purposes of appeal[.]" On June 1, 2022, the court issued an Order which certified both the November 16, 2021 Order and the February 7, 2022 Order as final pursuant to M. R. Civ. P. 54(b). The court thereafter issued its Final Judgment on June 13, 2022. The Perls appeal. Additional facts will be discussed as necessary below.

STANDARD OF REVIEW

[1, 2] ¶10 We review a district court’s grant or denial of summary judgment de novo, applying the same criteria as M. R. Civ. P. 56. Dewey v. Stringer, 2014 MT 136, ¶6, 375 Mont. 176, 325 P.3d 1236. Summary judgment is only appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Schweitzer v. City of Whitefish, 2016 MT 254, ¶ 9, 385 Mont. 142, 383 P.3d 735.

DISCUSSION

¶11 Did the District Court err by granting the Grants’ motion for summary judgment and denying the Perls’ motion for summary judgment?

[3] ¶12 This matter comes to us following cross-motions for summary judgment where the parties each asserted no material facts were in dispute. "Where the material facts are undisputed, the court must simply identify the applicable law, apply it to the uncontroverted facts, and determine who prevails." Broadwater Dev., LLC v. Nelson, 2009 MT 317, ¶ 15, 352 Mont. 401, 219 P.3d 492. The Perls argue there was no enforceable settlement agreement as the text messages between Dan and Jay did not comply with the statute of frauds and were insufficient to establish the formation of an enforceable contract in any case. The Grants contend the Perls are advancing "latent, hyper-technical statute of frauds arguments to avoid the evidence, the law, [and] their acknowledged Settlement Agreement." The District Court determined the statute of frauds was satisfied and the agreement between the parties contained all the...