SUmmary 2007 WY 116

Summary of Decision issued July 27, 2007

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Case Name: Pinther v. Ditzel

Citation: 2007 WY 116

Docket Number: 06-231

Appeal from the District Court of Laramie County, Honorable Wade E. Waldrip, Judge

Representing Appellant (Defendant): Donald Eugene Miller of Graves, Miller & Kingston, Cheyenne, Wyoming

Representing Appellee (Plaintiff): Terry Wynn Connolly, of Patton & Davison, Cheyenne, Wyoming

Date of Decision: July 27, 2007

Issue: Whether the district court properly applied the tort of negligent misrepresentation to reduce the payoff amount on a mortgage.

Facts/Discussion: Ditzel wanted to pay off a loan and extinguish the mortgage on his property, but he and Pinther could not agree on the payoff amount. Ditzel filed a declaratory judgment action asking the district court to determine the payoff amount.
Standard of Review: Following a bench trial the Court reviews a district court decision using a clearly erroneous standard for factual findings and a de novo standard for conclusions of law.
A published foreclosure notice had stated that the payoff amount on the mortgage would be $37,609.73. Ditzel contended that Pinther was bound by that amount, even if it proved to be incorrect, and even though the foreclosure sale had been canceled. In contrast, Pinther relied on the mortgage agreement, which allowed him to include certain filing fees, insurance premiums, attorney’s fees, and taxes that he had mistakenly failed to include in the published payoff amount for a payoff amount of $57,675.93 as of the foreclosure sale date. Pinther asserted that, because the foreclosure sale on the senior mortgage had been canceled, he was not obligated to accept as the payoff amount the mistaken figure published in the foreclosure notice. The district court accepted Ditzel’s argument, and ruled that the payoff amount, as of the foreclosure sale date, was the lower figure of $37,609.73.

Negligent misrepresentation is a tort claim. Ditzel did not actually assert negligent misrepresentation as a separate tort claim. The ‘negligent misrepresentation’ issue was forwarded only as a method for the court to determine the amount necessary to pay the note and release the mortgage. Tort theories may not be used to change the terms of a written agreement. Where the parties have a contractual agreement, the contractual relationship controls, and parties are not permitted to assert actions in tort in an attempt to circumvent the bargain they agreed upon. Absent a completed foreclosure sale, Pinther owed no duty to Ditzel in representing the payoff amount on the senior mortgage. Accordingly, there was no foundation for the conclusion that the tort of negligent misrepresentation justifies a departure from the terms of the mortgage agreement.

Holdings: The district court erred when it used the tort of negligent misrepresentation to vary the terms of a written agreement. The payoff amount should have been calculated in accordance with the parties’ written agreement.

Reversed and remanded.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/37h7kg .