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Winn v. Amerititle

August 10, 2010


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge



The Court has before it cross motions for summary judgment and the defendant's motion to strike portions of one of the plaintiff's affidavits. The Court heard oral argument on July 21, 2010, and took the motion under advisement. For the reasons explained below, the Court will grant the defendant's motion for summary judgment and deny the plaintiff's motion for summary judgment. Given the Court's decision to grant defendant's motion for summary judgment, the defendant's motion to strike part of that affidavit is moot. The Court's analysis is set forth below.


In early December 2005, Royce Monson entered into a vacant land real estate purchase and sale agreement (PSA) with Dee and Yoriko Fuhriman, and Tamarack North, Inc. (TNI) for approximately 101 acres of land in Valley County, Idaho. Monson, the only listed buyer in the PSA, had planned to purchase the land and then either immediately re-sell the property or develop the property in conjunction with Lori McDonald, Jesse Winn, and Jesse's father, Kerry Winn. The Fuhrimans agreed to convey the property to Monson for $5.6 million provided that Monson pay $100,000 as an earnest money deposit, which was to be held in escrow by Amerititle, Inc. (See Winn Aff., Ex. A (PSA, Counter Offer #2).) The PSA also provided that the $100,000 earnest money was non-refundable consideration and would be applied to the down payment on the property. (Id.) The PSA instructed Amerititle to release the earnest money to the sellers within three days of the buyer's inspection of the property.

Monson entered into this agreement with the Fuhrimans and TNI on December 7, 2005. The agreement stipulated that the due date for Monson to deposit the earnest money was December 26, 2005, and that the final due date for closing on the property would be January 23, 2006.

By mid-December, Monson, McDonald, and the two Winns lost their potential financier for the project. So with the due date nearing for the earnest money deposit, Kerry Winn decided to provide the $100,000 necessary to satisfy the conditions of the PSA. Winn then contacted Amerititle and asked for information about how to wire the money to the escrow account. Amerititle responded with information that included the number for the escrow account, the name of the buyer, Royce Monson, and two of the three sellers' names, TNI and Yoriko Fuhriman, but it inexplicably omitted Dee Fuhriman's name. Satisfied with the instructions, Winn wired $100,000 to Amerititle on December 23, 2005.

On the same day of the wired transaction, the Fuhrimans agreed that Dee would instruct Amerititle to release the earnest money to a bank account in TNI's name. TNI was entirely owned and managed by Dee Fuhriman, and both Dee and Yoriko Fuhriman had access to the bank account with the earnest money. (Declaration of Yoriko Fuhriman ¶¶ 4-6) On December 27, Amerititle complied with the Fuhriman's instructions and transferred the entire $100,000 to the TNI bank account.

Problems with the real estate transaction followed the transfer of the earnest money. Monson, McDonald, Jesse Winn, and Kerry Winn found difficulties financing the project. And ultimately, closing did not occur before January 23.

On the same day the PSA was supposed to close but did not, Monson, as the only listed buyer in the PSA, assigned his rights under the PSA to McDonald, PC, which was owned and managed by Lori McDonald. Later that same day, McDonald assigned all of her interests under the PSA to Kerry Winn; however, until recently there was no documentation of the latter assignment. Four years later, and after the filing of the current lawsuit, Monson, McDonald, and Winn all signed another document (March 2010 assignment) regarding the previous assignments of rights under the PSA. (Winn Aff., Ex. A at 1-2.) The March 2010 assignment stipulated that the assignors in 2006 intended to assign any and all claims he or she might have against Amerititle to Winn. (Id.)

Winn maintained hope that the Fuhrimans would eventually renegotiate and close the deal after he received the assignment of interests and rights under the PSA. Under the assumption that the Fuhriman's and TNI would either renegotiate the deal or return the earnest money if another buyer were to close on the property, Winn waited patiently.

Winn's patience ended by January 2009, and he filed suit in an Idaho state court against the Fuhrimans. Under a theory of unjust enrichment, Winn claimed a breach of contract and sought to recover the $100,000. During the discovery of that case, Winn learned that Amerititle paid the entire earnest money deposit to TNI. Winn promptly amended his suit to include TNI as a defendant, and on October 30, 2009, an Idaho state court issued a default judgment jointly against both Fuhrimans and TNI for restitution in the sum of $100,000.

Winn recorded the judgment in Canyon County and Valley County, but his effort to recover from the Fuhrimans or TNI was futile. Still without the $100,000, Winn filed this suit against Amerititle. Winn claims that Amerititle breached the escrow agreement, breached its fiduciary duties as an escrow agent, and acted negligently by dispersing the earnest money solely to TNI, rather than jointly to Yoriko Fuhriman and TNI. Both parties move for summary judgment on all causes of action.


One of the principal purposes of the summary judgment "is to isolate and dispose of factually unsupported claims...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut," but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)(en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).

This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. Id. at 256-57. The non-moving party must go beyond the pleadings and show "by her affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324.

However, the Court is "not required to comb through the record to find some reason to deny a motion for summary judgment." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir.2001) (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). Instead, the "party opposing summary judgment must direct [the Court's] attention to specific triable facts." Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).

There is, however, an exception to this rule when cross-motions for summary judgment are filed. In that case, the Court must independently search the record for issue of fact. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The filing of cross-motions for summary judgment -- where both parties essentially assert that there are no issues of material fact -- does ...

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