Grilz v. Sanchez ( 2013 )

qualifier and giver of professional advice. These payments were given and
taxed as though Grilz was an employee.
Eventually, CCPLS decided to terminate Grilz's employment
and stop making monthly payments. Sanchez asserts that by that time,
the total amount paid to Grilz was the value he would have been paid for
the business. CCPLS also repaid the $10,000.
Grilz sued Sanchez and CCPLS for breach of contract and
unjust enrichment, and also requested declaratory relief. He supports his
claims with affidavits from two of his sons and a family friend, all of whom
gave examples of times Sanchez had, allegedly, either agreed to or stated
she previously agreed to the contract terms. Sanchez and CCPLS moved
for summary judgment, supported by affidavits from various people
stating they were unaware of any contract or agreement between Grilz
and Sanchez. They also argued that they purchased the business from the
IRS, not Grilz, by paying off the lien. The district court granted Sanchez
and CCPLS's motion, finding the undisputed facts failed to prove an
agreement existed between the parties. It also found the contract, if it
existed, was oral and therefore violated the statute of frauds, and that
CCPLS had purchased the business from the IRS.
Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to judgment as a
matter of law. NRCP 56. There's a genuine factual dispute if a rational
person could find in favor of the nonmoving party. Wood v. Safeway, Inc.,
121 Nev. 724, 731, 121 P.3d 1026, 1031 (2005). The evidence and
reasonable inferences are viewed in the light most favorable to the
nonmoving party. Id. at 729, 121 P.3d at 1029. However, summary
judgment will not be defeated by speculation or conjecture, and the
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nonmoving party must set forth specific facts showing a genuine issue of
material fact. Id. at 731, 121 P.3d at 1030-31. This court reviews the
grant of summary judgment de novo. Id. at 729, 121 P.3d at 1029.
For a contract to be enforceable, there must be an offer,
acceptance, consideration, and a meeting of the minds. May v. Anderson,
121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005). Here, all four
requirements are contested, and there remain genuine issues of material
fact.
First, there remains a question of whether there was an offer,
acceptance, and a meeting of the minds. Affidavits setting forth specific
facts that support the claim give sufficient support to withstand a motion
for summary judgment. Wood, 121 Nev. at 731, 121 P.3d at 1030-31.
Here, Grilz supports his claims with affidavits setting forth specific facts
tending to show that Sanchez offered to pay Grilz $2,500 a month for life
in exchange for ownership of the business. Sanchez and CCPLS argue
that these affidavits do not save Grilz from summary judgment as they
constitute inadmissible hearsay. However, statements by the opposing
party or a representative of the opposing party are not hearsay. NRS
51.055, NRS 51.035. Sanchez is alleged to have made the contested
statements, and as she is both a party and a representative of the
opposing party these statements are not hearsay, the affidavits are
admissible. As they set forth specific facts showing a genuine issue of
material fact, they are sufficient to enable Grilz's claims to withstand
summary judgment.
As to whether there was consideration, the record shows that
CCPLS paid the IRS the lien amount, and that the IRS in exchange
released the assets and inventory of the business to CCPLS who
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" purchased [them] free and clear" on May 13, 2004. However, the
document absolving the lien is titled "Release of Assets from Federal Tax
Lien," suggesting that the payment merely satisfied the lien, and CCPLS
did not actually purchase the business. Moreover, a tax lien by itself does
not grant possession of the property to the IRS. EC Term of Years Trust v.
United States, 550 U.S. 429, 430-31 (2007). Only once the IRS takes
additional action, such as serving a levy or instituting foreclosure
proceedings, does it have the legal right to take possession. 26 U.S.C. §
6331(b) (2006); United States v. Boardwalk Motor Sports, Ltd., 692 F.3d
378, 381 (5th Cir. 2012). Therefore, if the IRS did not actually have
possession of the business, it could not sell it to CCPLS. Making Sanchez
aware of the company's financial woes and failing to pay the lien so that
CCPLS could purchase the assets may or may not amount to valuable
consideration. But, the facts do not show that Grilz did not own the
business at the time CCPLS paid the lien and could not give valuable
consideration by giving up his right to control the company. As the record
is unclear regarding Grilz's rights to or the IRS's possession of the
company, there remains a genuine issue of material fact on whether there
was adequate consideration to support a contract.
Additionally, and although neither party addresses this issue,
we note the alleged contract's oral nature does not necessitate invalidation
under the statute of frauds. The statute of frauds invalidates certain oral
agreements, including those that cannot be performed within one year.
NRS 111.220. However, substantial law supports that if the contract can
be performed within one year and is not otherwise subject to the statute of
frauds, it need not be in writing. See Atwell v. Sw. Sec., 107 Nev. 820,
824-25, 820 P.2d 766, 769 (1991); Stone v. Mission Bay Mortg. Co., 99 Nev.
4802, 805, 672 P.2d 629, 630-31 (1983); Elliott v. Chrysler Motors Corp, 89
Nev. 402, 402-03, 514 P.2d 207, 207 (1973); Stanley v. A. Levy & J. Zentner
Co., 60 Nev. 432, 443, 112 P.2d 1047, 1052 (1941). Here, nothing indicated
that the alleged contract could not be performed within a year, as, for
example, Grilz could have passed away, thus fulfilling the terms. See, e.g.,
Leonard v. Rose, 422 P.2d 604, 607 (1967) (agreements to support a person
for life are of indefinite duration, could conclude within a year, and do not
come within the statute of frauds); 37 C.J.S. Statute of Frauds, § 51
(2008).
Finally, the parties also dispute whether Sanchez may be
personally liable given that the contract existed through CCPLS and
whether summary judgment is at least appropriate to the claims against
her. Liability, of course, depends first upon the existence of a valid
contract or unjust enrichment claim, issues that must be determined.
Second, if there is a valid contract, further factual development is needed
to determine whether Sanchez, as one of CCPLS's principals, is liable for a
contract created before CCPLS's formation, or is liable for her personal
undertaking to Grilz. Even if Sanchez is liable, there remains a question
of whether the return of the $10,000 and Grilz's acceptance of that
payment extinguished the contract. All of these issues are, as yet, in need
of further factual development before any determination can be made on
this score.
SUPREME COURT
OF
NEVADA
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For the foregoing reasons, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
, J.
Hardesty
J.
arra guirrce:
cc: Eighth Judicial District Court Dept. 4
Janet Trost, Settlement Judge
Bell and Young, Ltd.
Silver State Legal Services
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
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