Flagstone Development, LLC et al v. Joyner et al

Filing 132

ORDER denying 105 Defendants Jon Ussin and U Bar S Real Estate's Motion for Judgment on the Pleadings. Signed by Judge Richard F. Cebull on 10/19/2010. (EMA)

Flagstone Development, LLC et al v. Joyner et al

Doc. 132

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF MONTANA B I L L I N G S DIVISION FLA G S T O N E DEVELOPMENT, LLC, an A riz o na limited liability company, and LA W R E N C E A. HEATH, P la intiffs , -vs ORDER W A Y N E JOYNER, JUSTIN JOYNER, as ind ivid ua ls ; ROCKY MOUNTAIN T IM B E R LA N D S , LLC, a Montana limited lia b ility company, WAYNE M A R C H W IC K , AMERICAN TITLE AND E S C R O W , a Montana corporation, FIRST A M E R IC A N TITLE COMPANY, a C a lifo rnia corporation, DEVELOPER FIN A N C E CORPORATION, a M a s s a c hus e tts corporation, NICHOLAS P O W E R S , III, a/k/a NICHOLAS D. P O W E R S , JAKE KORELL, LANDMARK O F BILLINGS, INC., a Montana c o rp o ra tio n, JON USSIN, U BAR S REAL E S T A T E , a Montana corporation, and J O H N DOES 11 through 30, D e fe nd a nts . Currently pending is a Rule 12(c) Motion for Judgment on the Pleadings by D e fe nd a nts Jon Ussin and U Bar S Real Estate. Plaintiffs oppose said motion. C a us e No. CV-08-100-BLG-RFC

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Dockets.Justia.com

BACKGROUND AND PARTIES P la intiffs are Flagstone Development Co., LLC, and Lawrence A. Heath, c itiz e ns of Arizona. Defendant Rocky Mountain Timberlands, LLC, is a Montana C o rp o ra tio n which owned real property in Mussellshell County, Montana. On May 2 5 , 2007, Flagstone entered into a land buy-sell agreement with Rocky Mountain T imb e rla nd s for approximately 13,000 acres in Mussellshell County. The sale c o nte mp la te d under the buy-sell was never closed, and on April 3, 2008, Rocky M o unta in Timberlands terminated the buy-sell. The essential focus of the Second A me nd e d Complaint are the claims of Plaintiffs against Defendants Rocky M o unta in Timberlands and its principals, Wayne Joyner and Justin Joyner over that fa ile d transaction. Defendant Nicholas Powers is a citizen of the state of Arizona. On April 4, 2 0 0 8 , Powers closed on the purchase of lands from Rocky Mountain Timberlands in Y e llo w s to ne and Mussellshell Counties, including Mussellshell County lands which c o mp ris e d a portion of the lands under the failed Flagstone/Rocky Mountain T imb e rla nd s buy-sell. Defendant Jon Ussin is a real estate broker licensed by the S ta te of Montana and is a sole proprietor operating as Defendant U Bar S Real E s ta te , who represented Powers as his real estate agent in the transaction with R o c k y Mountain Timberlands.
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STANDARD OF REVIEW R ule 12(c) Fed.R.Civ.P. judgment on the pleadings is properly granted when, ta k ing all allegations in the pleading as true, the moving party is entitled to judgment a s a matter of law. Enron Oil Trading & Transp. Co. v. Walbrook Ins. Co., Ltd., 1 3 2 F.3d 526, 529 (9th Cir. 1997). The reviewing court "must accept all factual a lle ga tio ns in the complaint as true and construe them in the light most favorable to the non-moving party." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). Like Rule 12(b)(6) motions, the standard required by Rule 12(c) significantly favors the non-moving party: judgment on the pleadings "may only be granted when the p le a d ings show that it is beyond doubt that the plaintiff can prove no set of facts in s up p o rt of his claim which would entitle him to relief." Id. (internal quotations o mitte d ).1

The Supreme Court has recently held that the "no set of facts" language commonly cited as the standard for Rule 12 motions is "best forgotten as an incomplete, negative gloss on an accepted pleading standard." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1969 (U.S. 2007). Rather, "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. Alternatively stated, the complaint include "enough facts to state a claim to relief that is plausible on its face." Id. at 1974. Although the Twombly Court made these statements in the Rule 12(b)(6) context, courts have already applied Twombly to Rule 12(c) motions because they involve the same language. See e.g. Dewees v. Legal Servicing, LLC, 506 F.Supp.2d 128, 131 (E.D.N.Y. 2007).

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The party opposing the motion has the benefit of all possible favorable a s s ump tio ns and the court is required to accept as true all well pleaded factual a lle ga tio ns in the adversary's pleadings just as it must consider as false all c o ntra ve ning assertions in the movant's pleadings. Charles Alan Wright and Arthur R . Miller, Federal Practice and Procedure 3d, 5C Fed. Prac. & Proc. Civ.3d § 1 3 6 8 (Thompson West 2007).

ANALYSIS D e fe nd a nts Ussin/U Bar S (Ussin herein) assert that dismissal is appropriate b e c a us e Plaintiffs make no allegation that Ussin engaged in independent wrong o uts id e of the scope of their relationship and Plaintiffs make no allegation that the a c tio ns of Ussin were made to further his own interest or for his own personal b e ne fit. According to Plaintiffs, the negotiations between Rocky Mountain and P o w e rs included a provision requiring a release of Flagstone's contract and D e fe nd a nts never obtained the release, so the contingency was removed before the s a le to Powers was completed. According to Plaintiffs, Ussin knew of Flagstone's p e nd ing buy-sell agreement with Rocky Mountain because of the contingency in the

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Powers agreement that required the release of Flagstone's contract. The facts, as a lle ge d in the Second Amended Complaint, are that Ussin knew that Flagstone w o uld object to and discourage the sale of property to Powers unless they were una w a re of it, so Ussin conspired with the other Defendants to withhold information a b o ut Powers' purchase of the property. Ussin is alleged to have interfered with Fla gs to ne ' s contract to purchase the property and intended to cause the damage re s ulting from the destruction of Flagstone's contract. Ussin purportedly acted to p re ve nt the performance of Flagstone's contract by keeping all information about the sale to Powers away from Flagstone. Plaintiffs' Second Amended Complaint alleges claims against Ussin for to rtio us interference with contract, civil conspiracy, and punitive damages. All three c la ims against Ussin are in dispute because of Defendant's answer affirmatively d e nying Plaintiffs' allegations. The Court is limited to reviewing only "the content o f the competing pleadings, exhibits thereto, matters incorporated by reference in the pleadings, whatever is central or integral to the matter for relief or defense, and a ny facts of which the district court will take judicial notice." Firelight Meadows, L L C v. 3 Rivers Tel. Coop., Inc., 344 Mont. 117, 120, ¶10 (2008) (quoting Wright a nd Miller, Federal Practice and Procedure 3d, § 1368.

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Ussin relies on Crane Creek Ranch, Inc. v. Cresap, 324 Mont. 366, 103 P.3d 5 3 5 (2004), to support the argument that they cannot be liable because they were a c ting as an agent for Powers. The agent in Crane Creek was an attorney who was a c c us e d of behaving negligently. In Crane Creek, the Montana Supreme Court a d d re s s e d the interplay between Mont. Code Ann. § 28-10-602, which absolves an a ge nt and makes the principal liable to third parties for the negligent acts of his a ge nts ; and Mont. Code Ann. § 28-10-702(3), which makes an agent liable to third p e rs o ns when the agent's acts were wrongful in nature. See Crane Creek, supra at 3 6 9 , ¶ 12. Under § 28-10-602, MCA, the principal will be held liable to third persons for the negligent acts of her agents. An agent, on the other hand, is not liable to third persons for acts performed in the course of his agency unless, with the consent of his principal, he receives personal credit for a transaction, he enters into a w ritte n contract in the name of his principal without believing in go o d faith he has the authority to do so, or his acts were w ro ngful in their nature. Section 28-10-70, MCA. [Emphasis in o r ig in a l].

See Crane Creek, supra at 369, ¶ 12. In this case, there is no claim that Ussin acted negligently and Mont. Code A nn. § 28-10-602 does not apply. The claims for tortious interference with a c o ntra c t, civil conspiracy, and punitive damages, against Ussin are intentional torts
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and require specific intent to engage in harmful conduct, and Mont Code Ann. § 281 0 -7 0 2 (3 ) is the applicable statute.2 B a s e d upon the pleadings, Defendants' Motion for Judgment on the Pleadings [d o c . 105] is DENIED. DATED this 19th day of October, 2010. _ /s / Richard F. Cebull___________ R IC H A R D F. CEBULL U .S . DISTRICT COURT JUDGE

Ussin's circumstances are distinguishable from Defendant Jennifer Smith, who was recently dismissed by Order of this Court, in that Plaintiff asserted a negligence claim against Smith, causing Mont Code Ann. § 28-10-602 to be the applicable statute.

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