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Kosmann v. Gilbride

Supreme Court of Idaho

December 12, 2016

DAVID KOSMANN, Plaintiff- Respondent,
v.
LEO GILBRIDE, Defendant-Appellant.

         2016 Term 2016 Opinion No. 146

         Appeal from the District Court of the Third Judicial District of the State of Idaho, Canyon County. Hon. Juneal Kerrick, District Judge.

         The judgment of the district court is affirmed. .

          Kaufman Reid, PLLC, Boise, attorneys for appellant. James G. Reid argued.

          Greener Burke Shoemaker Oberrecht, PA, Boise, attorneys for respondent. Loren K. Messerly argued.

          W. JONES, Justice

         I. Nature of the Case

         Appellant, Leo Gilbride ("Gilbride"), contends that the district court erred by refusing his request for attorney's fees. The underlying dispute arose out of a sale of real property between Respondent, David Kosmann ("Kosmann"), and Gilbride, which was executed with the alleged understanding that Gilbride would re-convey the property back to Kosmann at a later time. After purchasing the property, with down payment funds provided by Kosmann, Gilbride refused to re-convey the property to Kosmann. Accordingly, on January 25, 2013, Kosmann filed a complaint against Gilbride alleging, inter alia, unjust enrichment and demanding specific performance of Gilbride's promise to re-convey the property. The district court dismissed the specific enforcement claim, awarded Kosmann $30, 990 based on his unjust enrichment claim, and denied both parties' claims for attorney's fees.

         On appeal, Gilbride argues that he was entitled to attorney's fees pursuant to the Real Estate Purchase and Sale Agreement, or Idaho Code section 12-120(3).

         II. Factual and Procedural Background

         This case arises from Kosmann's sale of real property to Gilbride and an alleged oral agreement for Gilbride to re-convey the property back to Kosmann at a later time. Kosmann owned real property commonly known as 1020 W. Homedale Road, Caldwell, Idaho 83607 (the "Property"). The Property consists of a home, two shops, and an acre of open field.

         In the summer of 2011, Kosmann became unable to make his mortgage payments. He owed about $260, 000 on the Property, but it only appraised for $130, 000. After failed attempts to refinance his loan, Kosmann contacted Justin McCarthy, a real estate agent. McCarthy explained that there were investors who would be available to purchase the Property and rent it back to Kosmann. After two sale and lease back agreements fell through with separate parties, Kosmann introduced McCarthy to Gilbride.[1] Gilbride and Kosmann first met in May 2012, and by "June or July . . . [Gilbride] offered to help [Kosmann] as a friend." Kosmann and Gilbride had similar backgrounds in the military. Gilbride offered to help Kosmann with the understanding that Gilbride would obtain the loan, but Kosmann would pay the down payment, closing costs, and also pay Gilbride "a couple hundred extra a month for his trouble until such time [Kosmann] could regain possession of the home."

         Under this arrangement, Gilbride allegedly orally promised to help Kosmann obtain a short sale[2] of the Property and thereafter: (1) allow Kosmann to reside and operate his restoration business at the Property, and (2) allow Kosmann an opportunity to buy the Property back at a later time. On September 24, 2012, Kosmann and Gilbride executed the Real Estate Purchase and Sale Agreement (the "REPSA"). The REPSA provided as follows: "Offer is contingent upon 3rd party bank (GMAC) releasing the mortgage as paid in full, and releasing rights to pursuit of a deficiency judgment. Seller will rent the property back from the buyer for a term of not less than 1 year." A short sale was arranged with the lender, GMAC, but in order to get the short sale approved, Kosmann and Gilbride were required to sign a Short Payoff Arms-Length Affidavit, which included the following:

There are no agreements, understandings or contracts between the parties that the Borrower will remain in the Mortgage Premises as a tenant or later obtain title or ownership of the Mortgaged Premises, except to the extent that the Borrower is permitted to remain as a tenant on the Mortgaged Premises for a short term, as is common and customary in ...

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