Nicole Curtis v. Jason Jenny ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1220
Nicole Curtis,
Appellant,
vs.
Jason Jenny,
Respondent.
Filed May 4, 2015
Affirmed
Cleary, Chief Judge
Hennepin County District Court
File No. 27-CV-13-139
Brett M. Larson, Molly R. Hamilton Cawley, Amie E. Penny Sayler, Messerli & Kramer
P.A., Minneapolis, Minnesota (for appellant)
Wm. Christopher Penwell, Siegel Brill, P.A., Minneapolis, Minnesota (for respondent)
Considered and decided by Reilly, Presiding Judge; Cleary, Chief Judge; and
Ross, Judge.
UNPUBLISHED OPINION
CLEARY, Chief Judge
Appellant Nicole Curtis appeals from the district court’s order granting summary
judgment on all fourteen counts of her claim against respondent Jason Jenny. Jenny
appeals from the district court’s order granting summary judgment on his slander-of-title
counterclaim against Curtis. Because we conclude that no genuine issues of material fact
preclude summary judgment, we affirm.
FACTS
Curtis is the host of Rehab Addict, a television show featuring Curtis’s renovation
of old homes. In August 2009, Curtis and her business partner purchased a property at
620 Minnehaha Parkway West in Minneapolis for $350,000. Curtis’s renovations of the
property were featured on her television show.
On January 11, 2012, Jenny purchased the property for $610,000. Jenny and
Curtis were involved romantically at the time. Following the sale, Curtis’s name was no
longer listed on the title for the property. Curtis alleges that she and Jenny entered into a
partnership agreement, in conjunction with the sale of the property to Jenny, which
formed the basis of many of Curtis’s later claims against Jenny.
After Jenny bought the property, Curtis and Jenny’s relationship deteriorated and
Jenny denied Curtis access to the property. On June 13, 2012, Jenny and Curtis entered
into a purchase agreement in which Curtis was to purchase the property from Jenny. The
purchase agreement included an addendum containing a release provision, which
purported to release Jenny from “any and all claims by Buyer relating to the Property and
resulting from [Seller’s] ownership thereof.”1 However, the closing never took place
because Curtis was unable to obtain financing to buy the property.
1
Before the district court, Curtis argued that the release was invalid because her signature
on the final version of the purchase agreement was forged. The district court found that
Curtis’s signature was valid and concluded that the release was enforceable against
Curtis. Curtis does not dispute the validity of the purchase agreement before this court.
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In January 2013, Curtis filed a complaint against Jenny that included fourteen
counts, several of which arose from the partnership agreement that Curtis and Jenny
allegedly entered into at the time Jenny purchased the house. Soon after filing the
complaint, Curtis recorded a notice of lis pendens against the property.
Jenny filed a motion for summary judgment on Curtis’s claims and a motion for
leave to add a slander-of-title counterclaim against Curtis. Following the completion of
discovery, the district court heard Jenny’s motion for summary judgment. In December
2013, the district court granted summary judgment dismissing all of Curtis’s claims.
After the court granted summary judgment dismissing Curtis’s claims, Curtis filed
a motion for summary judgment concerning Jenny’s slander-of-title claim. The district
court held a separate hearing regarding the slander-of-title claim and other issues in
Curtis’s motion. In May 2014, the district court granted Curtis’s summary judgment
motion dismissing Jenny’s slander-of-title claim. Curtis appealed the district court’s
decision to grant summary judgment on her claims, and Jenny filed a notice of related
appeal regarding the grant of summary judgment on his claim.
DECISION
Summary judgment is appropriate where the entire record shows that there is “no
genuine issue as to any material fact and that either party is entitled to a judgment as a
matter of law.” Minn. R. Civ. P. 56.03. A fact is material if it would affect the result or
outcome of the case. Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60
(1976). No genuine issue of material fact exists “[w]here the record taken as a whole
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could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ,
566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quotation omitted).
Summary judgment is inappropriate where the nonmoving party presents
“sufficient evidence to permit reasonable persons to draw different conclusions.”
Schroeder v. St. Louis Cnty., 708 N.W.2d 497, 507 (Minn. 2006). If the evidence
presented would require the factfinder to “assess, evaluate, or determine credibility,”
summary judgment should not be granted. Carlson v. SALA Architects, Inc., 732 N.W.2d
324, 327 (Minn. App. 2007), review denied (Minn. Aug. 21, 2007). However, there is no
genuine issue of material fact when the nonmoving party only presents evidence that
“merely creates a metaphysical doubt as to a factual issue and which is not sufficiently
probative with respect to an essential element of the nonmoving party’s case . . . [T]he
party resisting summary judgment must do more than rest on mere averments.” DLH,
Inc., 566 N.W.2d at 71.
On appeal from summary judgment, this court reviews de novo (1) whether a
genuine issue of material fact exists and (2) whether the district court erred in its
application of the law. Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790
N.W.2d 167, 170 (Minn. 2010) (citation omitted). In doing so, this court views the
evidence in the light most favorable to the party against whom summary judgment was
granted. STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn.
2002) (citations omitted).
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I.
Curtis argues that four specific errors should preclude summary judgment as to
counts I-VIII, XI, XII, and XIV of her original complaint. Each is addressed in turn
below.
A. There is no genuine issue of material fact as to whether Jenny made
statements to the bank regarding Curtis’s credit
Counts XI and XII of Curtis’s claim alleged that Jenny committed defamation and
tortious interference with a business relationship by making statements to Bridgewater
Bank regarding Curtis’s creditworthiness, which resulted in the bank denying Curtis
financing to buy the property. The district court concluded that Jenny was entitled to
summary judgment on counts XI and XII because Curtis “has not submitted any
competent evidence that Jenny made any of the alleged statements.” Curtis argues that
the district court erred because she submitted two pieces of evidence of Jenny’s alleged
statements: (1) her own affidavit stating that Mr. Johnson of Bridgewater Bank told her
that someone called the bank and commented as to her creditworthiness the day before
the closing was scheduled, and (2) Jenny’s deposition testimony that he, his attorney, and
his realtor each called Bridgewater Bank the day before the closing.
The district court concluded that Curtis’s testimony about Johnson’s statements to
her was not probative of whether the alleged statements were made, because Curtis’s
testimony was hearsay and its “evidentiary value rests on the truth of an unsworn
statement.” Inadmissible hearsay must be disregarded on a motion for summary
judgment. Murphy v. Country House, Inc., 307 Minn. 344, 349, 240 N.W.2d 507, 511
5
(1976). Curtis does not dispute the district court’s characterization of her testimony
regarding Johnson’s statements as hearsay, but she argues that Minn. R. Evid. 803(21)
makes her hearsay testimony admissible. Minn. R. Evid. 803(21) allows admission of
hearsay statements as to “[r]eputation of a person’s character among associates or in the
community.”
The hearsay statements at issue are Johnson’s purported statements asserting that
someone called the bank and made statements regarding Curtis’s creditworthiness. Curtis
did not offer Johnson’s statements in order to show the reputation of anyone’s character
among associates or in the community. Rather, Curtis reported her conversation with
Johnson to prove that someone made statements to the bank regarding Curtis’s
creditworthiness. Because Curtis’s testimony as to Johnson’s statements was offered for
the purpose of proving the truth of the matter that the statements asserted, not for the
purpose of showing reputation, the statements were not admissible under Minn. R. Evid.
803(21). Therefore, the district court did not err by disregarding Curtis’s testimony as to
Johnson’s hearsay statements.
The district court’s summary judgment order did not mention Jenny’s testimony
that he, his attorney, and his realtor all called the bank the day before the closing. Given
the timing of the phone calls, one could infer that these calls could have included
information about Curtis’s financing. However, when Jenny testified about the phone
calls to the bank, he stated that they were merely to inquire about the status of Curtis’s
loan and whether there was an appraisal scheduled for the property before the closing
date. Curtis did not offer any evidence showing that the phone calls also included
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statements as to her creditworthiness. Curtis asked the court to treat her mere inference
that the phone calls could have included such statements as probative of whether such
statements took place.
At the time of the summary judgment hearing, Curtis had been unable to schedule
a deposition with Johnson to determine the content of the phone calls. The court stated
that it would wait for Johnson’s deposition to occur before it decided whether the three
phone calls had any probative value on the question of Jenny’s alleged statements to the
bank.
Johnson’s eventual deposition did not substantiate Curtis’s speculation that the
phone calls included statements regarding her creditworthiness. Johnson stated that he
had never talked to or met Jenny. Johnson did not know whether anyone from the bank
had ever talked with Jenny, either before or after the scheduled closing date. Johnson did
not recall telling Curtis that someone had called the bank and made statements regarding
her creditworthiness. Johnson stated that sometimes realtors call the bank for a status
update on loan applications. In short, Johnson’s deposition did not provide any evidence
that the content of the calls included statements about Curtis’s creditworthiness.
Therefore, the district court was justified in concluding that the mere existence of the
phone calls was not probative as to whether Jenny made the alleged statements. Because
Curtis did not present any other evidence that Jenny made statements regarding her
creditworthiness, there is no genuine issue of material fact as to whether Jenny made the
alleged statements.
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B. There is no genuine issue of material fact as to whether the release was
enforceable against Curtis
The district court held that the release in the purchase agreement was enforceable
against Curtis and applied the release to dismiss counts I-VIII and XIV of Curtis’s
complaint. Curtis argues that the release was unenforceable because Jenny breached the
agreement and/or frustrated the purpose of the agreement by allegedly making the
representations discussed above regarding her creditworthiness, and that these
representations caused the bank to deny Curtis financing for the property. Curtis asserts
that genuine issues of material fact remain as to (1) whether Jenny made the alleged
statements to the bank, and if so (2) whether those statements caused the bank to
withdraw financing.
As discussed above, the district court did not err by concluding that there was no
genuine issue of material fact as to whether Jenny made the alleged statements.
Furthermore, even if Curtis could show that Jenny made the statements, the record
included a letter that showed there was no genuine issue of material fact as to whether the
alleged statements caused the bank to withdraw financing. The letter pre-dated Jenny’s
alleged statements to the bank, and it stated reasons for denying Curtis credit that had
nothing to do with statements allegedly made by Jenny. Curtis does not challenge the
validity of the letter. Because the decision to deny Curtis credit was apparently made
before the statements Jenny allegedly made to the bank, the alleged statements cannot
have caused the bank to decide to withdraw financing. Therefore, there are no genuine
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issues of material fact that would undermine the enforceability of the release of claims in
the purchase agreement.
C. The release precluded several of Curtis’s claims
Curtis additionally asserts that the district court erred as a matter of law in its
interpretation of the release in the June 2012 purchase agreement. “The construction and
effect of an unambiguous contract are questions of law and reviewable de novo.”
Banbury v. Omnitrition Int’l, 533 N.W.2d 876, 880 (Minn. App. 1995). In its entirety,
the release provision read as follows:
Upon the execution of this agreement Seller shall be released
from any and all claims by Buyer relating to the Property and
resulting from his ownership thereof, except for Seller’s
obligation to convey the property in the manner described in
the Purchase Agreement upon the completed performance by
Buyer.
In the district court’s order granting summary judgment, the court grouped
together all of Curtis’s claims that related to the property, counts I-VIII and XIV. Curtis
does not challenge the court’s characterization of these counts as relating to the property.
Instead, Curtis asserts that the use of the conjunctive “and” in the release means that the
release only precludes claims that both relate to the property and result from Jenny’s
ownership of the property. See TCM Props., LLC v. Gunderson, 720 N.W.2d 344, 349
(Minn. App. 2006) (recognizing that when “and” is used, both elements must be present
for application of provision).
Jenny argues that this contract-interpretation argument is not properly before this
court because Curtis did not raise it before the district court. On appeal, litigants are
9
generally bound by the theories upon which the action was actually tried in the district
court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Before the district court, the
only issues Curtis raised regarding the release were whether Curtis’s signature was valid
and whether the release was enforceable against her claims. Curtis should have raised all
arguments that would have prevented the court from enforcing the release against her
claims. Curtis never argued that, even if the release were enforceable, it should not apply
to any of the counts of her claim because of its conjunctive wording. Therefore, Curtis
appears to have waived this argument.
Even if the contract-interpretation argument were properly before this court, it
would be unconvincing. The words “resulting from [Mr. Jenny’s] ownership” are very
broad. Therefore, they do little to restrict the types of claims to which the release applies.
All of the claims to which the district court applied the release could arguably be
“resulting from [Mr. Jenny’s] ownership,” because those specific claims would not have
arisen if Jenny had not owned the property. Given the broad language of the release, the
district court did not err by concluding that counts I-VIII and XIV were barred by the
release.
Curtis argues here that, even if the release is valid and enforceable to preclude
some of her claims, she “may still recover under the issues related to breach of the
partnership.” Curtis asserts that there is a genuine issue of material fact as to whether the
partnership agreement existed. However, Curtis does not identify which specific claims
relate to breach of the partnership that would not be precluded by the release.
10
The district court concluded that all of the claims arising from the alleged
partnership were precluded by the release because they also related to the property. We
agree. Therefore, even if there was a genuine issue of material fact as to the existence of
the partnership agreement, it would not preclude summary judgment on any of Curtis’s
claims.
II.
Jenny asserts that the district court erred by granting summary judgment on his
slander-of-title claim against Curtis. A slander-of-title claim requires the claimant to
prove four elements, including the existence of a “false statement concerning the real
property” owned by the claimant. Paidar v. Hughes, 615 N.W.2d 276, 279-80 (Minn.
2000). A false statement exists where a party files a notice of lis pendens that the party
knows to be inoperative. See id. at 280. A slander-of-title claim fails if the party acts in
good faith and records an instrument that the party has a right to file. Kelly v. First State
Bank of Rothsay, 145 Minn. 331, 333, 177 N.W. 347, 347-48 (1920). The court
concluded that there were no genuine issues of material fact as to whether the notice of lis
pendens included a false statement, because Jenny did not present probative evidence that
Curtis filed the notice of lis pendens with knowledge that it was inoperative.
Jenny argues that there is a genuine issue as to whether Curtis knew the notice of
lis pendens was inoperative at the time she filed it. Jenny’s argument relies on the
premise that Curtis knew, at the time that she filed the notice of lis pendens, that none of
the counts in her complaint had any merit. In support of this premise, Jenny argues that
11
the release in the purchase agreement should have put Curtis on notice that her claims
were barred.
We agree with the district court that the existence of a release would not
necessarily bar all of Curtis’s claims, because the parties clearly dispute the proper
application of the release. Nor does the failure of Curtis’s lawsuit provide any evidence
that Curtis filed the notice of lis pendens with knowledge that it was inoperative. As the
district court emphasized, to hold otherwise would mean that “every unsuccessful litigant
who filed a notice of lis pendens would be potentially liable for slander of title.”
Jenny argues that he presented additional evidence that Curtis filed the notice of
lis pendens in bad faith and with knowledge that the notice was inoperative. Jenny
presented affidavits and deposition testimony from Curtis’s previous boyfriends and
business partners attesting to their relationships with Curtis, and evidence that Curtis filed
the notice of lis pendens near the same time that she wrote about her dispute with Jenny
on social media. Jenny introduced this evidence in an attempt to establish that Curtis had
a pattern of “maliciously and ruthlessly manipulating and coercing four men in an
attempt to enrich herself beyond any possible legal entitlement.” Jenny asserts that this
pattern-of-conduct evidence shows that Curtis acted in bad faith here, too.
Although the court did not specifically invoke any evidentiary rules to exclude this
evidence, the district court could reasonably have concluded that this evidence was
inadmissible for the purposes for which Jenny offered it. On a motion for summary
judgment, affidavits are limited to “such facts as would be admissible in evidence.”
Minn. R. Civ. P. 56.05. “Evidence of another crime, wrong, or act is not admissible to
12
prove the character of a person in order to show action in conformity therewith.” Minn.
R. Evid. 404(b). However, such evidence may be admissible for other purposes,
including proof of intent, knowledge, or absence of mistake. Id. We review a district
court’s evidentiary rulings for an abuse of discretion. Doe 76C v. Archdiocese of St.
Paul, 817 N.W.2d 150, 164 (Minn. 2012).
The pattern-of-conduct evidence Jenny submitted was apparently intended to
prove Curtis’s character in order to show that she acted in conformity with her prior
actions. In theory, this evidence could be admissible to show Curtis’s knowledge or
intent. However, this situation is sufficiently distinguishable from the other situations, so
the court could reasonably have concluded that the evidence of Curtis’s behavior in other
romantic and business relationships was not probative of Curtis’s knowledge or intent in
this situation. Therefore, Jenny has not shown that the district court abused its discretion
by treating the pattern-of-conduct evidence as inadmissible.
Aside from the existence of the release and the pattern-of-conduct evidence, there
is no evidence in the record showing that Curtis filed the notice of lis pendens in bad faith
or with knowledge that it was inoperative. Therefore, the district court did not err by
concluding that there were no genuine issues of material fact as to whether Curtis’s notice
of lis pendens included a false statement. Curtis was entitled to summary judgment as a
matter of law on Jenny’s slander-of-title claim.
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Because we agree with the district court that no genuine issues of material fact
exist that would preclude summary judgment on either of the parties’ claims, we affirm.
Affirmed.
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