Topaz Mutual Co. v. Marsh , 108 Nev. 845 ( 1992 )

OPINION

Per Curiam: ¹

Facts

Topaz Mutual Company, Inc. (Topaz) is a privately owned public utility that supplies water to a portion of Douglas County near Topaz Lake. Topaz is owned by John and Virgie Arden through its parent corporation, Topaz Development Corporation. Florence Marsh (Marsh) is a private citizen who, in 1986, was looking for an investment opportunity to fund her stay in a retirement home in Santa Barbara, California. On March 21 of that year, ostensibly to improve the water system and retire debts, Topaz entered into a loan commitment with Marsh whereby she would loan a maximum of $121,000.00 to Topaz at an interest rate of sixteen percent per annum. According to a loan commitment agreement, Topaz expected to repay the loan through a surcharge on its customers. The loan commitment was negotiated in part by Skip Roggenbihl (Roggenbihl), a partner in Nevada Lands Association (NLA). John Arden, as president of Topaz Mutual Company, and Marsh signed the agreement.

On July 23, 1986, as required by the terms of the loan commitment, Topaz requested approval for the financing of the loan in the amount of $93,187.84 from the Public Service Commission (PSC). The PSC approved a loan in the amount of $73,001.00, contingent upon Topaz approaching at least three banks for a lower interest rate. Because it concluded that Topaz could obtain a lower interest rate elsewhere, the PSC refused to give final approval to the Marsh loan, but no one informed Marsh of the PSC’s decision.

On October 1, 1986, the Ardens sold their corporate properties — including Topaz, Topaz Ranch Estates, Inc. (Topaz Ranch), and others — to NLA for $7.5 million. The corporate minutes of Topaz for that date showed that the original partners of NLA — Tony Wesley Martin (Martin) and Gordon V. Ruff (Ruff) — were directors of Topaz as well as the Ardens’ other corporations. Forty percent of Topaz’s stock was issued to NLA, and NLA (Martin and Ruff) was authorized to enact all business on behalf of Topaz, including the funding and sale of properties. The Ardens issued a proxy for their thirty percent sharehold interest in Topaz to NLA and Ruff.

Marsh was told that NLA and its current partners — Martin, Ruff, and Roggenbihl — were purchasing the Ardens’ properties and had authority to act for the Ardens. She was also told that NLA had become part of Topaz. On October 8, 1986, Marsh wrote a check to Topaz in the amount of $121,000.00, with the understanding that the funds would be used to pay for system improvements. She gave the check to Roggenbihl, who later requested that she make her check out to NLA rather than to Topaz, and Marsh issued a check for $121,000.00 to NLA. In return she received a promissory note signed by NLA and its partners, as well as a contract with Topaz signed by the partners of NLA. Unbeknownst to Marsh, the borrowers used most of the loan in an unsuccessful attempt to forestall foreclosure on Topaz Ranch, property which was not mentioned in the loan agreement, and Roggenbihl received $6,000.00 as a commission for procuring the loan. John and Virgie Arden each received $5,000.00 of Marsh’s loan, and none of the money purchased system improvements. Marsh received only two of the promised interest payments on the note.

In February, 1989, Marsh filed suit against Topaz, NLA, the Ardens, Martin, Ruff, and Roggenbihl. The district court entered a directed verdict against NLA, Martin, Ruff, and Roggenbihl on their $121,000.00 promissory note. The court also ruled that Marsh’s maximum allowable recovery against Topaz on the contract was $73,001.00 because of the limitation the PSC had placed on the loan. Pursuant to a jury verdict, the district court ordered Topaz to pay Marsh $73,001.00, together with interest calculated at a rate of sixteen percent per annum dating from December 8, 1986. Based on the language in the loan commitment agreement and the contract and note, the district court imposed an equitable mortgage in the sum of $73,001.00, with interest, against the assets of Topaz in favor of Marsh.

In answers to interrogatories contained in the verdict, the jury found Topaz, NLA, Martin, Ruff, and Roggenbihl liable on the fraud count and assessed damages at one-fourth of $121,000.00. Later the jury found Topaz also liable for fraud, and again assessed damages at one-fourth of $121,000.00. There was no explanation for this allocation of damages, but the net result is that each of the five parties found liable were assessed only one-fourth of Marsh’s total loss or $30,250.00.

Punitive damages against Martin, Ruff, and Roggenbihl were also assessed in the amounts of $5,000.00, $10,000.00, and $20,000.00, respectively. Marsh was also awarded attorney’s fees in the sum of $20,000.00 to be paid by the five parties. In addition, the court awarded $5,000.00 to Marsh against each of the Ardens, for a total of $10,000.00, on her claim of unjust enrichment.

Topaz appealed, and Marsh cross-appealed against all of the parties on the issues of the district court’s limitations of the equitable mortgage and the award of unjust enrichment. By a stipulation pursuant to NRAP 28(h)² which was filed on December 5, 1990, Topaz, the defendant at trial, agreed to file the opening brief as appellant/cross-respondent.

Discussion

Damages on Fraud Claim

Jury Instruction No. 29 provided that each item of damage must be proved by a preponderance of the evidence. Topaz correctly observes that “clear and convincing evidence” and not “preponderance of the evidence” is the correct burden of proof with respect to the fraud claim. Read out of context, the jury instruction is misleading. However, the jury received instructions on fraud that adequately informed it of the proper burden of proof. Jury Instruction No. 25, which outlined the essential elements of fraud, including damage to Marsh, provided that each element must be proved by clear and convincing evidence. Additionally, Jury Instruction No. 27 defined “clear and convincing” as “beyond a mere preponderance of the evidence.”

Where other instructions inform the jury of information contained in a proposed instruction, the trial court need not give the proposed instruction. Colorado Environments v. Valley Grading, 105 Nev. 464, 467, 779 P.2d 80, 82 (1989); Beattie v. Thomas, 99 Nev. 579, 583-84, 668 P.2d 268, 271 (1983); see Gordon v. Hurtado, 96 Nev. 375, 609 P.2d 327 (1980) (no reversal for giving of jury instruction which is not technically correct is required where, taking into consideration all of instructions given, jury was sufficiently and fairly instructed). Because the related instructions adequately informed the jury of the standard' of clear and convincing evidence, Instruction No. 29 was not so misleading as to warrant reversal.

The jury found five parties — NLA, Topaz, Martin, Ruff, and Roggenbihl — guilty of fraud, but only awarded damages of $30,250.00 against each party. The jury unequivocally found Topaz guilty of fraud and determined that the total amount of damage suffered by Marsh because of the fraudulent acts was $121,000.00. The Ardens had turned control of Topaz over to NLA, Martin, and Ruff, and this provided sufficient evidence to hold Topaz liable for their fraudulent acts. Topaz and the Ardens claim, as does the dissent, that Martin and Ruff were “rogues” and that they proved to be. But, it was the Ardens who turned over control of Topaz to Martin and Ruff in the fall of 1986 and empowered them to act for Topaz.

Concerning damages, Topaz has observed on appeal that, “The amount of damages awarded against Topaz for fraud represents the amount of the contract and note divided by four of the defendants ($121,000.00 divided by 4 equals $30,250.00).” Under the facts of this case, Marsh’s loss on the fraud claim was either $121,000.00 or nothing. Once the jury found the five parties liable to her for fraud and her total damage of $121,000.00 because of their fraudulent conduct, each party should have been found jointly and severally liable for the total amount. See Price v. Aztec Limited, Inc., 701 P.2d 294 (Idaho Ct.App. 1985) (rule of joint and several liability prevails where tortfeasors act in concert in execution of common purpose). However, since Marsh has not claimed on appeal that the fraud damages were improperly restricted or divided by the jury and the parties have not briefed this issue, we decline to alter in Marsh’s favor the fraud damages imposed, and we leave those damages as assessed by the jury and entered by judgment of the district court.

Topaz argues that Marsh should have been forced to proceed against Topaz on either the contract or fraud claim, but not both, and that the resulting awards against Topaz will permit Marsh a double recovery. We disagree. A plaintiff may assert several claims for relief and be awarded damages on different theories. It is not uncommon to see a plaintiff assert a contractual claim and also a cause of action asserting fraud based on the facts surrounding the contract’s execution and performance. See Amoroso Constr. v. Lazovich and Lazovich, 107 Nev. 294, 810 P.2d 775 (1991). The measure of damages on claims of fraud and contract are often the same. However, Marsh is not permitted to recover more than her total loss plus any punitive damages assessed. She can execute on the assets of any of the five parties to the extent of the judgments entered against them until she recovers her full damages.

The Contract Claim

Topaz argues that the loan is void because it lacked PSC approval for the full amount. Other states’ statutes declare a transaction void ab initio if it is made to a public utility without approval of the commission that regulates public utilities. See, e.g., Vt.Stat.Ann.tit. 30, § 107(c)(4) (1991 Supp.); see also Hogue v. Superior Utilities, 210 P.2d 938 (N.M. 1949) (the note and mortgages of a corporation operating a gas distribution system were void where not authorized by the Public Service Commission as required by statute). NRS 704.323(1) provides as follows:

No privately owned public utility organized under the laws of and operating in the State of Nevada shall issue any security, or assume any obligation as guarantor, endorser, surety or otherwise, in respect of any security of any other person, firm or corporation, unless and until, and only to the extent, authorized by a written order of the commission.

See also NRS 704.325,³ which prohibits unapproved use of proceeds. NRS 704.323(1) and 704.325 do not expressly render an unauthorized loan or transaction void. The statutes, in effect, make an unapproved loan or security transaction voidable by any party in interest, the public utility, the lender, or the Public Service Commission. Normally, the statutes that regulate public utilities should be given full force and effect, and loans or other transactions with utilities which have not secured PSC approval will be deemed voidable and thus unenforceable. However, the facts of this case compel us to reach a different result.

Marsh always intended to make a loan to Topaz to improve the utility’s water delivery system. While the agreement to loan and the subsequent promissory note indicated that PSC approval was necessary, Topaz, through the fraudulent conduct of its officers and directors, represented to Marsh that approval had been secured and that it was appropriate to make the loan in the full amount. In reliance on the false representation, Marsh issued her check in the amount of $121,000, but none of the money was used for the system’s improvement, and the bulk of the funds was diverted to forestall foreclosure on the Ardens’ ranch, which was not an asset of Topaz. If we permit Topaz to claim that the loan, which was consummated by fraudulent acts of its officers and directors, is unenforceable pursuant to NRS 704.325, we will be permitting the utility to profit from its own wrongful conduct. This we will not do.

To enforce the contract only to the limit of the PSC approval would allow Topaz to escape full responsibility for its misrepresentations and would penalize Marsh, who loaned the full sum requested in good faith and on the assumption that Topaz would utilize the loan proceeds to improve the utility’s water system and debt structure. “The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.” Bigelow v. RKO Radio Pictures, 327 U.S. 251, 265 (1946). The duty of good faith and fair dealing is created by law in all contracts. K Mart Corp. v. Ponsock, 103 Nev. 39, 48, 732 P.2d 1364, 1370 (1987). Equitable estoppel is applied to prevent manifest injustice and hardship to an injured party as in Cheqer, Inc. v. Painters & Decorators, 98 Nev. 609, 665 P.2d 996 (1982), where a hospital relied to its detriment on a letter of approval which specified a timetable within which to act or lose authorization to proceed with the project, and this court held that the Department of Human Resources was estopped from vacating its previously issued letters of approval.

Equitable estoppel functions to prevent the assertion of legal rights that in equity and good conscience should not be available due to a party’s conduct. United Brotherhood v. Dahnke, 102 Nev. 20, 714 P.2d 177 (1986). Thus, when a party acts in bad faith and with an intent to defraud, it can be estopped from challenging the enforceability of a contract executed because of that conduct. Since Marsh acted to her detriment in reliance on the misrepresentations by Topaz’s officers and directors, and it was represented to her that PSC approval had been obtained, the principle of equitable estoppel applies to prevent Topaz from now asserting that the contract is voidable. Therefore, we conclude that the district court erred in ruling that the loan was enforceable only to $73,001.00, the amount that the PSC had expressly approved.

Because utilities have a monopoly on a necessary service, they are regulated to protect the ratepayers, the public, and the parties who transact business with them. We are not only concerned about the impact of NRS 704.323(1) and 704.325 upon a good faith lender who is defrauded by the utility, but also upon the impact that the judgment will have on the ratepayers of Topaz. “The purpose of a regulatory agency is ‘to protect power consumers against excessive prices’ by assuring that costs passed-through into utility rates are just and reasonable.” Alliance for Aff. Energy v. New Orleans, 578 So.2d 949, 972 (La.Ct.App. 1991) (quoting Pennsylvania Power Co. v. F.P.C., 343 U.S. 414, 418 (1951)). Nevada law specifically requires that charges made by a public utility for services rendered must be just and reasonable (NRS 704.040(1)); and every unjust and unreasonable charge is unlawful (NRS 704.040(2)).

Given the fraudulent and unauthorized conduct of the officers and directors of Topaz, none of the burdens of this judgment should be passed on or charged to its ratepayers, but rather borne solely by Topaz. Nevada Power v. Public Service Commission, 105 Nev. 543, 545, 779 P.2d 531, 532 (1989) (a judgment may require a utility to satisfy it through the owners’ equity rather than to permit the cost to be passed on to the ratepayers.) We therefore hold that neither the ratepayers, who were deprived of the protection the PSC sought to provide them, nor Marsh, who parted with the full amount of the loan proceeds, should be forced to bear the burden created by the manipulative conduct and breach of contract attributable to Topaz and its officers and directors. Marsh is entitled to the full amount of her contract damages plus interest against Topaz, none of which may be passed on or charged to the ratepayers.

Assessment of Equitable Mortgage

Based on the loan commitment agreement as well as the contract and note, the district court imposed an equitable mortgage against Topaz of $73,001.00. The contract and note states in part:

The signers of this contract are declared individually and jointly responsible for repayment of this note and agree to underwrite the contract by pledge of personal credit as well as income derived from sale of water and other assets of Topaz Mutual Co. as security for the principal amount of $121,000.00 and all accrued interest when due.

(Emphasis added.)

The note in favor of Florence Marsh for $121,000.00, signed by Martin, Ruff, and Roggenbihl as Nevada Lands Association, a Nevada General Partnership, contains the following language:

This note is secured by the assets of Topaz Mutual Water Company Inc., a Nevada Corporation in an amount equal-ling the face value of this promissory note. The present total assets of Topaz Mutual Water Company Inc. include $1,335,000.00 of water rights plus office and physical assets of: $1,469,725.00.

(Emphasis added.) At the time these documents were executed, the Ardens, as majority stockholders of Topaz, as well as the principal officers, had relinquished control of Topaz to NLA.

In Nee v. L. C. Smith, Inc., 97 Nev. 42, 47-8, 624 P.2d 4, 7 (1981), this court stated: “A mortgage is usually considered to be a nominal conveyance, held in abeyance, of certain property as a security for the payment of a certain debt. If the parties intend to create a mortgage, no particular form of instrument or words is necessary to create an equitable mortgage.” (Footnote omitted; citations omitted.) We do not question the district court’s reasons for imposing the equitable mortgage. However, Topaz argues that the property to be impressed with this lien was not sufficiently identified in the documents, and therefore, the equitable lien cannot be imposed. For an equitable mortgage to be imposed, there must be an identifiable res. “In order for an agreement to give a mortgage to be considered an equitable mortgage it must clearly describe or point out the property intended to be charged with the lien.” 59 C.J.S. Mortgages § 16 (1949 & Supp. 1992). In its judgment, the district court imposed the lien on the assets and income of Topaz. This is what the documents specifically stated would be the security to guarantee the loan repayment. While the defined property is described in broad terms, Topaz agreed to the language, and the identification of the res as the profits and income of a company is a sufficient identification of the property to be encumbered by an equitable lien. See Sundheim v. School Dist., 166 A. 365 (Pa. 1933) (an equitable lien is created on a particular fund when a written contract indicates an intention for it to secure a debt); Field v. Lang, 32 A. 1004 (Me. 1895) (equitable liens may be applied to rents and profits).

Since we have determined that Marsh should recover $121,000.00 plus interest and the property to be subject to the lien was sufficiently described, the imposition of the equitable lien by the district court is affirmed and the amount of the lien shall be increased to $121,000.00.

Unjust Enrichment

The district court limited the unjust enrichment claim against John and Virgie Arden to a maximum of $10,000.00 and did not submit the claim to the jury for its decision, but instead reserved that decision for itself to make at the conclusion of the trial. Without ruling on the court’s reservation of this issue, we conclude that limiting the recovery to a maximum of $10,000.00 was error. A major portion of the loan proceeds ($87,000.00) went to the Federal Land Bank in order to postpone foreclosure twice on the Ardens’ Topaz ranch. Some of the proceeds funded improvements on the ranch. Other portions of the loan proceeds went to various parties, including a $6,000.00 commission to Roggenbihl which Marsh did not know about.

“Unjust enrichment is the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience.” Nevada Industrial Dev. v. Benedetti, 103 Nev. 360, 363 n.2, 741 P.2d 802, 804 n.2 (1987). This court has observed that the essential elements of unjust enrichment “are a benefit conferred on the defendant by the plaintiff, appreciation by the defendant of such benefit, and acceptance and retention by the defendant of such benefit.” Unionamerica Mtg. v. McDonald, 97 Nev. 210, 212, 626 P.2d 1272, 1273 (1981).

Postponing foreclosure on a property benefits the owner by reducing his or her total debt and by allowing additional time to negotiate a sale. Improvements made to a property also benefit the property owner. Thus, the proceeds used to postpone foreclosure and improve the ranch at least indirectly benefited the Ardens and may have directly benefited them. If permitted to consider these additional benefits to the Ardens, the jury or court may conclude that they benefited by more than $10,000.00. See John A. Artukovich, Etc. v. Reliance Truck, 614 P.2d 327 (Ariz. 1980) (trucking company was liable to owner of crane under theory of unjust enrichment because trucking company received a benefit by using the crane); Restatement of Restitution § 1 cmt. b (1937). Because these are questions for the jury or court to consider, we reverse and remand to the district court for a new trial concerning the extent of the Ardens’ unjust enrichment.

Conclusion

Accordingly, we affirm the fraud judgment against Topaz and increase the contract judgment to $121,000.00 plus interest. We also affirm the imposition of an equitable mortgage levied against Topaz’s assets and income and remand to the district court to increase the amount of this lien as indicated. Finally, we reverse and remand for a new trial as to the extent of the Ardens’ unjust enrichment.

1 This matter was originally docketed in this court to reflect that Topaz Mutual Company, Inc. and Florence Marsh were the only parties to this appeal and cross-appeal. We note, however, that Florence Marsh’s “Notice of Cross-Appeal” filed March 6, 1990, specifically challenges:

That portion of the Findings of Fact, Conclusions of Law and Judgment entered in this matter on January 19, 1990 which limited Florence Marsh’s recovery against defendants, Virgie Arden and the Estate of John Arden, Deceased, to $5,000 each, from that portion of the Judgment on Verdict entered in this matter on January 19, 1990 which resulted from Judge Torvinen’s ruling that the maximum recovery against defendant, Topaz Mutual Company, Inc. on the Contract and Note was $73,001 and from Judge Torvinen’s ruling that Florence Marsh could not maintain an action for fraud on the basis of the Intent to Loan dated March 21, 1986.

Accordingly, we have modified the caption on this court’s docket to reflect that Virgie Arden and the Estate of John Arden are cross-respondents in this matter.

Further, Marsh’s notice of cross-appeal, docketing statement filed June 1, 1990, answering brief and opening brief on cross-appeal filed March 8, 1991, and reply brief on cross-appeal filed May 23, 1991, all challenge the district court’s limitation of unjust enrichment damages recoverable from Virgie Arden and the Estate of John Arden. These documents were all duly served upon the law firm of Bible, Hoy, Miller, Trachok & Wadhams, counsel for Topaz Mutual Company, Inc. and Virgie Arden, and upon attorney Gregory F. Wilson, counsel for the Estate of John Arden. On April 25, 1991, the law firm of Bible, Hoy, Miller, Trachok & Wadhams filed a reply brief and answering brief on cross-appeal which addresses the issues raised by Marsh on cross-appeal.

Notwithstanding service of Marsh’s notice of appeal, docketing statement and briefs, attorney Wilson elected not to file a brief in response to the issues raised by Marsh on cross-appeal, to join in the reply brief and answering brief on cross-appeal filed April 25, 1991, or to otherwise enter an appearance in this court on behalf of the Estate of John Arden. Consequently, this matter was submitted for decision following oral argument on September 9, 1991, upon the briefs and oral arguments tendered by counsel for Florence Marsh and Topaz Mutual Company, Inc. and Virgie Arden.

2 NRAP 28(h) provides in part:

In cases involving a cross-appeal, the plaintiff in the court below shall be deemed the appellant for all purposes, unless the parties otherwise agree or the court otherwise orders.

(Emphasis added.)

3 NRS 704.325 provides as follows:

No public utility shall, without the consent of the commission, apply any security or any proceeds thereof to any purpose not specified in the commission’s order, or supplemental order, or to any purpose in excess of the amount allowed for such purpose in such order, or otherwise in contravention of such order.