Sigg v. Coltrane

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No. 103,994

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MARGARET L. SIGG,
Appellant,

v.

DANIEL COLTRANE and TANYA COLTRANE,
Appellees.


SYLLABUS BY THE COURT

The statute of frauds requires that an enforceable contract for the sale of real estate
be in writing and signed by the party against whom enforcement is sought. K.S.A. 33-106
states: "No action shall be brought whereby to charge a party upon . . . any contract for
the sale of lands, tenements, or hereditaments, or any interest in or concerning them . . .
unless the agreement upon which such action shall be brought, or some memorandum or
note thereof, shall be in writing and signed by the party to be charged therewith, or some
other person thereunto by him or her lawfully authorized in writing."

Appeal from Allen District Court; DANIEL D. CREITZ, judge. Opinion filed December 10, 2010.
Affirmed.

Mark Sevart, of Derby, for appellant.

Steven B. Doering, of Law Offices of Steven B. Doering, of Garnett, for appellees.

Before PIERRON, P.J., GREEN and MARQUARDT, JJ.

GREEN, J.: Margaret Sigg appeals from a judgment of the trial court denying her
motion for summary judgment on her action for specific performance of a contract to
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purchase real estate. Sigg offered and made a down payment of $27,500 to Daniel and
Tanya Coltrane on the purchase of certain land. The Coltranes later sold the land to
someone other than Sigg. On appeal, Sigg raises the following questions: Is an e-mail
sent by the party to be charged sufficient to satisfy the requirements of the statute of
frauds and did the trial court err in denying her motion for summary judgment?

It is apparent that none of the separate writings in question was signed by the party
[the Coltranes] to be charged in the action and, therefore, the alleged agreement set forth
in the separate writings is within the statute of frauds and, hence, unenforceable.
Accordingly, we affirm.

In May 2008, the Coltranes put their land located in Iola, Kansas, up for sale. Sigg
was interested in purchasing the property and hired Charles Sellman to be her real estate
agent.

On January 16, 2009, Tanya Coltrane sent an e-mail to Laura Sellman, the
daughter of Charles Sellman, with an attached document. The attached document, which
was drafted by Daniel Coltrane, was titled as an offer to purchase real estate. The
document contained language stating that it was an "offer to purchase [the Coltranes'] real
estate" and that the Coltranes had "the right to reject any and all bids." Sigg signed the
document and deposited 10 percent of the purchase price in the Coltranes' bank account.

On January 30, 2009, the Coltranes entered into a contract to sell their real estate
to Douglas Stickler, who was renting the land from the Coltranes at that time. The
Coltranes rejected Sigg's offer to purchase the real estate and returned her deposit. Sigg
filed an action contending that she had entered into a contract to purchase the Coltranes'
land and demanding specific performance of the sale of the property. Later, Sigg moved
for summary judgment, which was denied by the trial court. Instead, the trial court
granted the Coltranes' motion for summary judgment. The trial court determined that
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Sigg's action was barred by the statute of frauds. Moreover, the trial court determined that
the Coltranes never accepted Sigg's offer to purchase the real estate.

Is an e-mail sent by the party to be charged sufficient to satisfy the requirements of
the statute of frauds?

On appeal, Sigg first argues that an e-mail sent by the Coltranes was sufficient to
satisfy the statute of frauds. Sigg relies on the Uniform Electronic Transactions Act,
K.S.A. 16-1601 et seq. in support of her argument. Sigg did not raise this issue before the
trial court. Issues not raised before the trial court cannot be raised on appeal. In re Care
& Treatment of Miller, 289 Kan. 218, 224-25, 210 P.3d 625 (2009).

There are several exceptions to the general rule that a new legal theory may not be
asserted for the first time on appeal, including the following: (1) the newly asserted
theory involves only a question of law arising on proved or admitted facts and is finally
determinative of the case; (2) consideration of the theory is necessary to serve the ends of
justice or to prevent denial of fundamental rights; and (3) the judgment of the trial court
may be upheld on appeal despite its reliance on the wrong ground or having assigned a
wrong reason for its decision. In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d
284 (2008).

We will address this new legal authority under exception (1) previously
mentioned.

SUMMARY JUDGMENT

Standard of Review

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When the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law, summary
judgment is appropriate. The trial court is required to resolve all facts and inferences
which may reasonably be drawn from the evidence in favor of the party against whom the
ruling is sought. When opposing a motion for summary judgment, an adverse party must
come forward with evidence to establish a dispute as to a material fact. In order to
preclude summary judgment, the facts subject to the dispute must be material to the
conclusive issues in the case. On appeal, the same rules apply; summary judgment must
be denied if reasonable minds could differ as to the conclusions drawn from the evidence.
Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).

Neither party disputes that the alleged agreement between Sigg and the Coltranes
must satisfy the statute of frauds to be a valid contract. Indeed, the statute of frauds
applies to all contracts "for the sale of lands, tenements, or hereditaments, or any interest
in or concerning them." See K.S.A. 33-106.

Quoting Walton v. Piqua State Bank, 204 Kan. 741, 747, 466 P.2d 316 (1970), this
court in Kenby Oil Co. v. Lange, 30 Kan. App. 2d 439, 442, 42 P.3d 201 (2002), outlined
the requirements to satisfy the statute of frauds as follows:

"'"A Memorandum, in order to be enforceable under the statue of frauds, may be
any document or writing, formal or informal, signed by the party to be charged or by his
lawfully authorized agent, which states with reasonable certainty (a) each party to the
contract either by his own name, or by such a description as will serve to identify him, or
by the name or description of his agent, (b) the land or other subject matter to which the
contract relates, and (c) the terms and conditions of all the promises constituting the
contract and by whom and to whom the promises are made.'" [Citation omitted.]"

See Restatement (Second) of Contracts § 131 (1979).
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Our Supreme Court has recently held that the statute of frauds requires that only
the material terms of a contract are to be stated with reasonable certainty. See Botkin v.
Security State Bank, 281 Kan. 243, 250, 130 P.3d 92 (2006); see also Federal Deposit
Insurance Corp. v. Neitzel, 769 F. Supp. 346, 349 (D. Kan. 1991) (citing Barnhart v.
McKinney, 235 Kan. 511, 524, 682 P.2d 112 [1984]) (material terms need only be stated
with reasonable certainty). Furthermore, for the purpose of satisfying the statute of
frauds, separate writings may be construed together in order to determine whether there is
sufficient written agreement upon which to base an enforceable contract. Young v.
Hefton, 38 Kan. App. 2d 846, 856, 173 P.3d 671 (2007).

In K.S.A. 33-106, we find the following:

"No action shall be brought . . . upon any contract for the sale of lands,
tenements, or hereditaments, or any interest in or concerning them; . . . unless the
agreement upon which such action shall be brought, or some memorandum or note
thereof, shall be in writing and signed by the party to be charged therewith, or some other
person thereunto by him or her lawfully authorized in writing." (Emphasis added.)

Based on the previously mentioned statute and case law, a memorandum or separate
writings, though signed by only one party, will bind that party if he or she is "the party to
be charged therewith," if the identity of the other contracting party is clear.

An important finding of fact made by the trial court is number 22, reading as
follows: "There is no document signed by either of the defendants to sell the property that
is the subject of this lawsuit." Moreover, this finding of fact is supported by substantial
competent evidence. Based on this, the trial court determined that Sigg's action was
barred by K.S.A. 33-106, the statute of frauds, because there was no document signed by
the Coltranes, "the party to be charged."

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As the Coltranes point out in their brief, there are at most four "writings" that may
be construed, either separately or collectively, as an agreement in this case:

1. An e-mail cover sheet to the daughter of Sigg's agent;
2. The attachment to the e-mail, denominated "Offer to Purchase Real Estate" later
signed by Sigg;
3. A check for earnest money signed by Sigg and deposited into the Coltranes'
bank account without their signatures; and
4. An unsigned handwritten note that accompanied the signed "Offer to Purchase
Real Estate."

Here, the various writings which established the contractual relationship between the
parties were not signed by the Coltranes.

For example, the e-mail cover sheet states that it is "Sent by Coltrane@cox.net." It
does not contain the typed name of either Daniel or Tanya Coltrane. Next, the "Offer to
Purchase Real Estate" is addressed to the Coltranes. Moreover, it is signed only by Sigg.
The Coltranes' signatures do not appear on the earnest money check furnished by Sigg
and deposited into the Coltrane's bank account. Finally, Sigg does not contend that the
unsigned note, found not to be material by the trial court, was signed by the Coltranes.

Sigg relies on Clark v. Larkin, 172 Kan. 284, Syl. ¶ 2, 239 P.2d 970 (1952), and
Vining v. Ledgerwood, 162 Kan. 380, 176 P.2d 560 (1947), to show that her agreement to
purchase the Coltranes' land is not violative of the statute of frauds. Sigg's reliance on
these two cases is misplaced.

For example, in Clark, the reneging buyer's memorandum written on his $1,000
down payment check read: "To apply on 405 East 'A' @ $17,000.00 bal. of $7,000.00 to
be paid on approval & $9,000 to be paid in 5 years @ 5%." 172 Kan. at 285. The buyer
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stopped payment on his check and pleaded the statute of frauds as a bar to the oral
contract to purchase the real estate. Our Supreme Court held that the check was a written
memorandum signed by the party to be charged (the buyer) and adequately identified the
parties, property, price, and every material point except the location of the property.
Because this was the only real property owned by the sellers, with the previously
mentioned description, the court determined that this omission was cured. As a result, this
case is distinguishable from the present case because the party sought to be charged had
signed the written memorandum.

In Vining, an offer of sale was made to the plaintiff (buyer) that was signed by the
defendant (seller), the party to be charged. The court held that the separate writings were
sufficient to take the matter out of the statute of frauds. Although two documents were
involved in Vining, one of them was signed by the party sought to be charged. Here,
while two or more documents were involved, none was signed by the Coltranes, the party
to be charged.

Furthermore, as the Coltranes point out in their brief, the case of Ayalla v.
Southridge Presbyterian Church, 37 Kan. App. 2d 312, 152 P.3d 670 (2007), is more
similar to Sigg's case than Clark and Vining. Ayalla leaves no doubt that a memorandum
or separate writings will be insufficient to take an agreement out of the statute of frauds if
it is not signed by the party to be charged:

"Citing Van Dyke v. Glover, 326 Ark. 736 (1996), Ayalla first asserts that the
oral acceptance of a written offer satisfies the statute of frauds. In Van Dyke, however,
the written offer was made and signed by the party to be charged. 326 Ark. at 742-43,
934 S.W.2d 204. Here, the written offer was made by Ayalla and was never signed by
Southridge Presbyterian. The essential point in the trial court's ruling was the absence of
a memorandum signed by Southridge Presbyterian as the party against whom Ayalla was
seeking enforcement of the alleged oral agreement. As a result, Van Dyke does not
support Ayalla's position.
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"Ayalla also argues that parties may bind themselves to an enforceable contract
even though they contemplate the future execution of a formal instrument as evidence of
their agreement. In support of this argument, she cites four cases: Phillips & Easton
Supply Co., Inc. v. Eleanor International, Inc., 212 Kan. 730, 512 P.2d 379 (1973)
(involving a written agreement signed by an agent of the party charged); Short v.
Sunflower Plastic Pipe, Inc., 210 Kan. 68, Syl. ¶¶ 6, 7, 500 P.2d 39 (1972) (holding that
an oral employment contract would not become enforceable until it was reduced to
writing and signed by the parties); Middleton v. City of Emporia, 106 Kan. 107, 186 Pac.
981 (1920) (involving a contract bid submitted by the party to be charged); Willey v.
Goulding, 99 Kan. 323, 161 Pac. 611 (1916) (involving a memorandum signed by the
party to be charged).

"These cases do not aid Ayalla because they do not negate the requirement that
an agreement for the sale of real estate must be evidenced by a writing signed by the
party to be charged. See K.S.A. 33-106." (Emphasis added.) 37 Kan. App. 2d at 317.

The Sigg's agreement clearly falls within the ambit of K.S.A. 33-106, and there is
no instrument in writing signed by the Coltranes that would take this agreement out of the
statute of frauds.

Finally, for the first time on appeal, Sigg attempts to rely upon the Uniform
Electronic Transactions Act, K.S.A. 16-1601 et seq., to supply the missing signatures of
the parties to be charged (the Coltranes). As stated earlier, Sigg did not raise this issue
before the trial court.

K.S.A. 16-1602(i) defines the term electronic signature as follows: "(1) 'Electronic
signature' means an electronic sound, symbol or process attached to or logically
associated with a record and executed or adopted by a person with the intent to sign the
record."

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Sigg cites no authority for her conclusion that the Coltranes' electronically drafting
and e-mailing a document constitutes an electronic signature as contemplated by the Act.
There is no evidence in the record that either the e-mail cover sheet or the "Offer to
Purchase Real Estate" attached to it bears the electronic signature of either Daniel or
Tanya Coltrane as defined by the Act. Instead, Sigg's position would require us to
endorse the proposition that because the "Offer to Purchase Real Estate" was sent
electronically to the daughter of Sigg's agent that that alone constitutes a signature. This
is simply not the law under K.S.A. 16-1601 et seq.

Moreover, there is no evidence that this transaction meets the requirements of
K.S.A. 16-1605(b): "This act applies only to transactions between parties each of which
has agreed to conduct transactions by electronic means. Whether the parties agree to
conduct a transaction by electronic means is determined from the context and
surrounding circumstances, including the parties conduct." There is absolutely nothing in
the record that indicates that Sigg and the Coltranes agreed to conduct their transactions
by electronic means. In fact, there is nothing in the record that establishes any actual
agreement existed between Sigg and the Coltranes.

Because the separate writings which established the contractual relationship
between Sigg and the Coltranes were not signed by the Coltranes, the alleged agreement
set forth in those separate writings is within the statue of frauds and, therefore,
unenforceable.

There are other issues raised in the briefs which have received careful
consideration, but we deem it unnecessary to discuss them in this opinion.

Affirmed.