Beaver v. Brumlow

231 P.3d 628 (2010)

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Nature of the Case

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Facts

Brumlow (D) worked for Beaver (P) in a racehorse transportation business. P purchased twenty-four acres of property and D asked P if he would sell some of the land to put a home on. P agreed, and the parties walked the specific boundaries of the property to be sold. D went into possession of the land with P's consent. D cashed in her IRA and 401-K retirement plans, at a substantial penalty, to pay for the home and improvements. D purchased a double-wide home and moved it onto the property. D also skirted the mobile home, poured concrete footers and a concrete foundation for the home, built a deck and two sets of stairs to access the home, had electricity and a water supply run to the property, had a septic system installed, had a propane system installed, brought a Tuff Shed for storage onto the property, and landscaped the property. P signed the application/approval required by the Village of Ruidoso Downs for the construction of the septic system. In reliance on the agreement, D spent approximately $85,000. Formal documents were not prepared and executed because P discovered that their property was encumbered with a mortgage containing a due on sale clause. Throughout their time on the land, D repeatedly requested that their contract be formalized, and P responded, 'We will work it out.' P was fully aware of the improvements and never attempted to interrupt D's quiet possession of the property during the years of possession. In March 2004, D gave P a two-week notice of termination of his employment intending to go to work for a competitor of P's in the racehorse transportation business. P then decided not to sell the agreed upon tract of land. P eventually filed a suit for ejectment against D, seeking to remove them from the property by alleging that Ds were in violation of a rental agreement. D filed counterclaims which included claims for breach of contract, fraud, and prima facie tort. P pleaded the statute of frauds as a defense. The trial court concluded that while the parties had no written agreement, the verbal agreement was proven by clear, cogent, and convincing evidence and that part performance of the contract by both P and D was sufficient to remove the contract from the statute of frauds. The court allowed D a choice of remedy: money damages for the prima facie tort or specific performance of the contract. D chose specific performance. This appeal resulted.