Present: All the Justices
STEPHEN B. MOORMAN,
EXECUTOR OF THE ESTATE
OF DORIS H. MOORMAN, ET AL.
OPINION BY
v. Record No. 070988 JUSTICE LAWRENCE L. KOONTZ,
JR.
June 6, 2008
BLACKSTOCK, INC., ET AL.
FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
William N. Alexander, II, Judge
This appeal arises from a dispute over the sale of a
certain tract of real property. The principal issue we
consider is whether the statute of frauds, Code § 11-2,
prohibits the enforcement of the purported oral contract
between the parties for the sale of the land. We also consider
whether, under the circumstances of the case, principles of
equitable estoppel or part performance are applicable so as to
justify granting the requested specific performance of the
purported oral contact.
BACKGROUND
The Moorman family has owned a farm consisting of 194
acres, more or less, situated along what is now Smith Mountain
Lake in Franklin County since the 1800s. At the time the
present dispute over the sale of the farm arose in 2002, the
farm was owned by a number of the Moorman family members and a
certain trust for a family member. C. Riley Moorman and Sophie
Moorman, husband and wife, owned a one-half interest in the
1
property. The other one-half interest was owned in one-tenth
shares by Stephen B. Moorman, David V. Moorman, Susan Moorman
Durham and Lisa D. Moorman, four of the five children of Warren
and Doris Moorman, who had previously owned this one-half
interest in the farm. The remaining one-tenth interest was
divided between a one-twentieth interest vested in fee simple
in Mark A. Moorman, the brother of Warren and Doris Moorman’s
other four children, and a one-twentieth interest held in the
Mark A. Moorman Trust, which had been created by Doris Moorman
for the benefit of Mark A. Moorman and which named David V.
Moorman as trustee. 1
In 2002, the Moormans decided to sell their farm and began
attempts to determine the interest of prospective purchasers.
Because of their affection for the farm, and because several
family members intended to live on adjacent property, the
Moormans desired to find a purchaser who would agree to
restrictive covenants in the sales contract that would allow
the Moormans to exert a degree of control over the farm’s
development for residential use.
1
Hereafter, we will refer to these parties in context as
simply “the Moormans” or we will refer to them specifically by
their individual names. We also note that Stephen B. Moorman
in his capacity as the executor of the estate of Doris Moorman
is also a party defendant in the complaint filed in this case.
The precise ownership interests of the Moormans are not at
issue and are recited merely to clarify the actions taken by
2
One of the prospective purchasers the family contacted
regarding the sale was Dr. Joseph R. Blackstock (Blackstock), a
part-time real estate developer and president of Blackstock,
Inc., his construction and land development company. 2 In 1999,
Blackstock had shown an interest in purchasing the Moormans’
farm and developing it into a residential subdivision. When
contacted in 2002, Blackstock confirmed his continued interest
in purchasing the Moormans’ property.
On November 21, 2002, David Moorman sent a letter 3 to
Blackstock explaining that the “family [had] received competing
purchase proposals from two prospective buyers of our property”
and soliciting a “final” proposal from Blackstock. This letter
also set forth nine terms and conditions that were to be
incorporated into Blackstock’s final proposal. One of these
conditions required the purchaser of the property to provide
the family with a mutually agreeable development plan and a
corresponding set of restrictive covenants within ninety days
of the signing of a contract. A second condition required the
certain members of the family regarding the dispute in
question.
2
In the complaints filed in this case, the allegation is
made that “Blackstock and his ultimate assignee, Blackstock,
Inc., would purchase” the Moormans’ farm. We are unable to
locate evidence of that assignment in the record. However,
because the Moormans do not raise the issue we will simply
refer to “Blackstock” in this opinion to include in context the
individual or the company where appropriate.
3
purchaser to pay a $10,000 deposit upon contract signing and
the balance of the purchase price at closing.
Blackstock responded with a letter “[t]o [t]he Moorman
[f]amily,” dated November 25, 2002, that “offer[ed]” to
purchase the farm for $1.7 million. In this letter, Blackstock
agreed to “abide by the [requested] restrictions,” proposed to
sign a contract within thirty days, and promised to pay the
Moormans in full within nine months of signing the contract.
He also “request[ed]” that the family help him obtain a small
tract of land located in the center of the Moormans’ farm that
was owned by Laird R. Heatwole.
David Moorman responded to Blackstock’s proposal in a
memorandum to Blackstock dated December 3, 2002. In that
memorandum, David Moorman noted that Blackstock proposed to pay
the purchase price within nine months of contract signing and
expressed concern regarding the family’s ability to protect
itself and ensure their receipt of final payment of the
purchase price if ownership were to be transferred at closing
without final payment at that time. He asked for clarification
from Blackstock regarding this issue and also indicated to
Blackstock that the family would meet to discuss the matter and
choose between the competing purchasers’ proposals. Blackstock
3
All correspondence between Blackstock and the Moorman
family was sent via e-mail or facsimile.
4
responded, stating that he was willing for the transfer of
ownership to be delayed until final payment of the purchase
price was made and suggested that “[w]e can have your attorney
draft the language to protect you.” Following the family
meeting, the Moormans were in agreement to accept Blackstock’s
proposed purchase price of $1.7 million for the farm.
Subsequently, on January 2, 2003, David Moorman
transmitted a “draft” purchase agreement for Blackstock’s
review and comment. In the cover letter, he wrote that,
although he had not discussed the draft with the family’s
attorney, William P. Davis (Davis), he wanted to avoid delay by
providing the draft for Blackstock to review at that time. The
cover letter indicated that the draft agreement was “based on
[the parties’] earlier agreement and [Blackstock’s] proposal,”
and included provisions requiring the Moorman family to help
Blackstock to acquire the Heatwole property and permitting
Blackstock to make site improvements prior to settlement.
Settlement was to occur within nine months of the date of the
agreement, and the purchase price of $1.7 million, less a
deposit of $10,000, was to be paid at settlement. The draft
was not signed by the Moormans.
On January 16, 2003, David Moorman notified Blackstock of
four additional terms suggested by Davis, and requested that
Blackstock’s attorney, Bruce E. Welch (Welch), prepare a
5
revised draft agreement incorporating the additional terms.
Welch complied and on February 4, 2003 David Moorman forwarded
the new draft to Davis for his review. On February 26, 2003,
David Moorman advised Blackstock that, after reviewing the
earlier “draft agreement,” Davis wanted to discuss “several
provisions” with Welch, but that he saw no “showstoppers or
major concerns.” One month later, on March 24, 2003, Welch
provided Davis with another draft agreement, and acknowledged
the parties’ continuing dispute regarding the nine-month payoff
for the balance of the purchase price. Thereafter, on April 9,
2003, David Moorman provided Blackstock with a draft of
suggested restrictive covenants desired by the Moorman family.
Blackstock did not respond directly to David Moorman regarding
those covenants, but provided the draft to Welch. Blackstock
subsequently had restrictive covenants prepared, but they were
not incorporated in subsequent draft agreements prepared by
Welch.
Communications between Blackstock and the Moorman family
continued for the next six months without resolution of the
parties’ negotiations. According to Welch, by October 2003,
there were “[n]o substantial disagreements” between the parties
and that the parties had agreed that closing would take place
six months, rather than nine months, after the date of
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acquisition of a right-of-way from Jewel Moorman. 4 However,
according to the Moormans, they continued to be concerned by
the clause in the draft agreement giving Blackstock nine months
to pay the full purchase price, the fact that Blackstock still
had not provided development plans to confirm that the property
would be an upscale development, and the fact that Blackstock
had avoided discussion on the family’s tendered covenants.
On October 17, 2003, Davis sent Welch another copy of the
contract Welch had prepared containing “suggested changes” and
two additions. In an accompanying letter, Davis asked Welch to
telephone him in order to “finalize this agreement.”
Unbeknownst to the Moorman family, on November 18, 2003,
Blackstock individually in the asserted capacity as “sole owner
by contract” entered into a contract to sell the farm to
another developer for $3 million. In the course of
negotiations leading to the signing of that contract,
Blackstock cautioned the developer that the required signatures
were not yet on his purported contract with the Moormans.
On January 21, 2004, Welch contacted Davis to inquire
whether the Moormans had a signed contract that they were ready
to present to Blackstock, as Blackstock was “anxious to get a
4
The family farm had no public road frontage, and the
Moormans accessed the farm through a private road over the land
of Jewel Moorman, a distant relative. Blackstock was
ultimately unsuccessful in obtaining this right-of-way.
7
signed contract.” Welch wanted the Moormans to be the first to
sign a contract because “every time [the parties] agreed on a
term, there would be also something different that would come
up.”
Ultimately, on June 16, 2004, Welch sent Davis a draft
contract for his review and modification, noting that it had
not been signed, nor reviewed, by Blackstock. On July 2, 2004,
David Moorman advised Davis that this draft had been circulated
among the Moorman family members and that they had various
questions and complaints regarding its provisions. He noted
that the family had yet to see development plans and
“protective covenants,” that the draft contract failed to
include provisions regarding the tax consequences arising from
delayed payment of the purchase price, and that the draft
contract failed to include a closing date. David Moorman also
expressed concern as to whether he, as the trustee of the Mark
A. Moorman Trust, could sign a contract on behalf of Mark
Moorman, who had now refused to sign any contract for the sale
of the farm to Blackstock.
On July 8, 2004, David Moorman notified Davis that the
attorney for his mother’s estate had advised David that he
could not sign any sales contract on behalf of Mark Moorman.
He also wrote that “[t]he rest of [the family] feel that we
already have a contract with Blackstock, though not in
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writing,” and sought Davis’ opinion whether the family has “an
oral contract with Blackstock that he can [successfully]
litigate.” On July 12, 2004, David Moorman advised Davis that
all family members, except Mark Moorman, had agreed to sell the
property to Blackstock.
On July 16, 2004, Welch sent a letter to Davis containing
a revised contract, and threatening litigation. The revised
contract reflected Mark Moorman’s refusal to participate in the
sale of the farm by deleting him as a signatory and decreasing
the purchase price by his “pro-rata share.” However, the
revised contract was still unsigned by Blackstock, and
contained no provision regarding a closing date.
Shortly thereafter and based upon his belief that he could
not represent both Mark Moorman and the remaining family
members with regard to the sale, Davis withdrew from his
representation of the family. The Moormans consulted other
counsel and concluded that they were not legally bound to sell
their farm to Blackstock. On September 6, 2004, the Moormans
entered into a contract to sell the farm to another developer
for $2.6 million.
In an amended bill of complaint filed against the Moormans
in the Circuit Court of Franklin County, Blackstock sought
specific performance of the purported contract for the sale of
the Moormans’ farm. Blackstock asserted in the complaint that
9
the parties “entered into a purchase and sales agreement as of
January 2, 2003, for the purchase of [the Moormans’] farm.”
Blackstock further asserted therein that “[a]lthough not
memorialized by a signed written contract, the memorandum of
January 2, 2003, satisfies [the statute of frauds], as it is
signed by David Moorman on behalf of the Moormans with a typed
signature.”
Following a bench trial, the circuit court concluded that
the parties reached an oral agreement to sell the Moormans’
farm on July 2, 2004, and that the several e-mails and faxes
circulated between Blackstock and David Moorman satisfied the
statute of frauds. The circuit court further concluded that,
in any event, equitable estoppel and part performance justified
granting Blackstock specific performance of the oral agreement.
Accordingly, on February 12, 2007, the circuit court entered a
final decree dismissing Mark Moorman from the suit and granting
the requested specific performance of the purported contract.
This appeal followed.
DISCUSSION
Our analysis in this appeal is guided by well-established
principles which subsequently we will reference and apply.
When applying those principles we will consider the evidence
and all reasonable inferences therefrom in the light most
favorable to Blackstock, the prevailing party in the circuit
10
court, and we will not disturb the judgment of the circuit
court unless it is plainly wrong or without evidence to support
it. Code § 8.01-680; Reid v. Boyle, 259 Va. 356, 361, 527
S.E.2d 137, 140 (2000). Initially, however, we think it
helpful and necessary to note certain undisputed factual and
procedural aspects of the case that focus our analysis.
There is no written and signed contract between the
parties for the sale of the land involved in this case. There
is also no dispute that by early January 2003 Blackstock
desired to purchase this land for $1.7 million and that the
Moormans desired to sell the land to Blackstock for that
purchase price. While Blackstock maintains that the parties
reached an agreement on January 2, 2003, the circuit court
found that the parties reached an agreement on July 2, 2004.
The Moormans maintain that there never was an oral contract
because the parties never mutually agreed upon the same
contract terms. Thus, the focus of our analysis is not upon
the disparity of these dates, but rather upon the central issue
of the applicability of the statute of frauds which the circuit
court was called upon to resolve.
In relevant part, Code § 11-2(6), provides that:
Unless a promise, contract, agreement,
representation, assurance, or ratification, or some
memorandum or note thereof, is in writing and signed
by the party to be charged or his agent, no action
11
shall be brought . . . [u]pon any contract for the
sale of real estate.
This statute, commonly known as the statute of frauds, is
“founded in wisdom and sound policy” and requires “contracts of
so important a nature as the sale and purchase of real estate
to be reduced to writing since otherwise . . . it often happens
either that the specific contract is incapable of exact proof
or that it is unintentionally varied from its original terms.”
Reynolds v. Dixon, 187 Va. 101, 106, 46 S.E.2d 6, 8 (1948);
accord Lindsay v. McEnearney Assocs., 260 Va. 48, 54-55, 531
S.E.2d 573, 576 (2000). Thus, “[i]n a suit for specific
performance, a written agreement insures that a court enforces
the agreement made by the parties and reduces the likelihood
that a court will create an agreement where none existed.”
Gibbens v. Hardin, 239 Va. 425, 430, 389 S.E.2d 478, 480
(1990).
With regard to a contract for the sale of real estate, we
have previously held that although a legally sufficient, signed
writing “may consist of any kind of writing, from a solemn deed
down to mere hasty notes or memorandum in books or papers,” the
writing must nonetheless contain all the essential terms of the
agreement. Reynolds, 187 Va. at 107, 46 S.E.2d at 9; see also
Janus v. Sproul, 250 Va. 90, 91, 458 S.E.2d 300, 301 (1995).
12
The essential terms to a contract for the sale of real
estate include “the names of the parties, the terms and
conditions of the contract, and a description of the property
sufficient to render it capable of identification.” Reynolds,
187 Va. at 108, 46 S.E.2d at 9. Perhaps most importantly,
“mutuality of assent – the meeting of the minds of the parties
– is an essential element of all contracts. Until the parties
have a distinct intention common to both . . . there is a lack
of mutual assent and, therefore, no contract.” Phillips v.
Mazyck, 273 Va. 630, 636, 643 S.E.2d 172, 175 (2007) (citations
and internal quotation marks omitted). Mutual assent is
determined “exclusively from those expressions of [the
parties’] intentions which are communicated between them.”
Lucy v. Zehmer, 196 Va. 493, 503, 84 S.E.2d 516, 522
(1954)(citations and internal quotation marks omitted)(emphasis
added); accord Phillips, 273 Va. at 636, 643 S.E.2d at 175.
In reviewing a claim for specific performance of an oral
contract for the purchase and sale of real property, “the
evidence relied upon to establish the contract and its part
performance by the party seeking to enforce it must be clear
and convincing.” Taylor v. Hopkins, 196 Va. 571, 575, 845
S.E.2d 430, 432 (1954). Accord Frizzell v. Frizzell, 149 Va.
815, 822-24, 141 S.E. 868, 870 (1928); Burruss v. Nelson, 132
Va. 17, 21, 110 S.E. 254, 255 (1922); Dunsmore v. Lyle, 87 Va.
13
391, 393, 12 S.E. 610, 611 (1891). Thus, if the court cannot
ascertain, using this standard of proof, from the memoranda, or
from other writings therein referred to, the essential terms of
the contract, such writings do not take the case out of the
statute of frauds. Rahm v. Klerner & Sons, 99 Va. 10, 13-14,
37 S.E.2d 292, 293 (1900); see also Reynolds, 187 Va. at 107,
46 S.E.2d at 8-9.
In Gibbens, this Court addressed whether the statute of
frauds prohibited the enforcement of an oral agreement to
divide real property. An attorney who represented both Gibbens
and Hardin had prepared a memorandum of understanding, and
mailed it to the parties. 239 Va. at 426-28, 389 S.E.2d at
478-79. After reading through the memorandum, Gibbens
expressed concern that “the memorandum did not delineate how
the boundary adjustment would be made;” Hardin “was
dissatisfied with the language in the memorandum which referred
to the boundary adjustment.” Id. at 428, 389 S.E.2d at 479.
Hardin “placed four marks across paragraph 3(C) of the
memorandum [providing for the adjustment of boundaries] and
signed the document.” Id.
On appeal, we observed that “[t]here is no evidence which
suggests that [the attorney] had the authority to bind Gibbens
or Hardin to the . . . memorandum. The memorandum was merely a
draft which [the attorney] prepared for his clients. Neither
14
Gibbens nor Hardin was satisfied with its content.” Id. at
430, 389 S.E.2d at 480. We noted that the memorandum also
failed to identify essential elements of the agreement,
including certain structures that were to be conveyed to
Gibbens, and the terms of an easement on which the parties had
previously agreed. As such, this Court held that the
memorandum did not satisfy the statute of frauds, and that the
“alleged oral boundary agreement” was therefore unenforceable.
Id. at 429, 389 S.E.2d at 479.
As in Gibbens, here there is a lack of clear and
convincing evidence that the Moormans and Blackstock ever
mutually agreed to all the essential terms of a contract for
the sale of the Moormans’ farm to Blackstock. The trial court
found that “[a]s of July 2, 2004, evidenced by David Moorman’s
[facsimile] to Will Davis, the Moorman family was in agreement
on the material terms of the last Blackstock draft contract.”
However, this letter was not a communication of mutual
agreement between the parties, but rather, a communication
reflecting the disagreement with the draft contract among the
members of one party. See Phillips, 273 Va. at 636, 643 S.E.2d
at 175. The letter expressly indicates that the parties had
yet to agree upon numerous essential terms and conditions for
the sale of the farm. Specifically, David Moorman noted that
the family still had not seen any development plans for the
15
property, that the agreement still failed to address the tax
consequences of the transaction, and that Blackstock had not
included the desired restrictive covenants in the June 16
draft. Moreover, the June 16 draft failed to include an exact
date for closing and final payment.
Additionally, where parties intend to culminate their
agreement with a signed contract, there is a strong presumption
that no contract exists until a contract is formally signed and
in writing. Atlantic Coast Realty Co. v. Robertson, 135 Va.
247, 253-54, 116 S.E. 476, 478 (1923). Overcoming such a
presumption requires “strong evidence.” Andrews v. Sams, 233
Va. 55, 58, 353 S.E.2d 735, 737 (1987). Here, the testimony of
the parties and their attorneys corroborated that a signed
agreement would be executed before the Moormans would be bound
in the sale of their property. The parties exchanged numerous
“draft” agreements, and Davis specifically invited Welch to
“finalize” one of the drafts. Likewise, Welch repeatedly
requested that a contract be formalized by a signed writing.
Even Blackstock himself advised his prospective purchaser that
the required signatures were not yet on his purported contract
with the Moormans. Clearly, the Moormans and Blackstock never
formalized their negotiations with a signed contract for the
sale of the Moormans’ farm.
16
Finally, we are of opinion that the evidence is
insufficient to establish that David Moorman had the authority
to bind the whole Moorman family by his e-mail and facsimile
exchanges. In Drake v. Livesay, this Court held that “[a]gency
may be inferred from the conduct of the parties and from the
surrounding facts and circumstances.” 231 Va. 117, 122, 341
S.E.2d 186, 189 (1986) (citing Royal Indemnity Co. v. Hook, 155
Va. 956, 157 S.E. 414 (1931)). Although the circuit court
found it “clear that David Moorman was acting on behalf of and
with the consent of the Moorman family,” the conduct of the
parties in this case does not support a finding that David
Moorman acted as the agent of the Moorman family members. As
Lisa Moorman testified, David Moorman was no more than a
“spokesperson” for the family, as “[i]t was much easier to have
one person serve as the liaison . . . than have all five of us
be involved.” Clearly, Blackstock was aware that the Moormans
were represented by Davis. And perhaps most importantly,
Blackstock’s own formalized draft agreements required the
signatures of the entire Moorman family, rather than the
signature of David, acting as the agent of the Moorman family.
For these reasons, we hold that the circuit court erred in
finding that the various notes and memoranda between the
Moormans and Blackstock regarding the purported oral contract
for the sale of the Moormans’ farm were sufficient to satisfy
17
the statute of frauds. In so holding, we find no reason to
address whether David Moorman “signed” any of the
correspondence between the parties by the act of typing his
name in an e-mail or facsimile message.
We turn now to consider the equitable estoppel issue
raised in this appeal. In Boykins Narrow Fabrics Corp. v.
Weldon Roofing and Sheet Metal, Inc., 221 Va. 81, 86, 266
S.E.2d 887, 890 (1980), this Court held that:
[A] party seeking to invoke the doctrine of estoppel
must prove by clear, precise, and unequivocal
evidence the following elements: (1) A material fact
was falsely represented or concealed; (2) The
representation or concealment was made with knowledge
of the facts; (3) The party to whom the
representation was made was ignorant of the truth of
the matter; (4) The representation was made with the
intention that the other party should act upon it;
(5) The other party was induced to act upon it; and
(6) The party claiming estoppel was misled to his
injury.
Furthermore, we have observed that “with respect to the
estoppel . . . which affects the title to real estate, there
must be the express intention to deceive, or such careless and
culpable negligence as amounts to constructive fraud.”
Chesapeake & Ohio Ry. Co. v. Walker, 100 Va. 69, 94, 40 S.E.
633, 642 (1902); accord Hyson v. Dodge, 198 Va. 792, 799, 96
S.E.2d 792, 797 (1957).
The circuit court ruled that the Moormans were equitably
estopped from asserting the statute of frauds. The court
18
reasoned that “Blackstock relied on the representations of the
Moormans and . . . purchased the tract of land [from Laird
Heatwole] for $260,000.00 [and Blackstock] would have no use
[for that tract] without the Moorman tract.” The record does
not support the circuit court’s ruling with regard to equitable
estoppel in this case. There is no evidence that the Moormans
either falsely represented or concealed a material fact from
Blackstock. Furthermore, because the purchase of the Heatwole
tract was never a condition of any purported contract between
the parties, and Blackstock had never informed the Moormans of
his intentions to sell the Moormans’ farm to a third party, he
cannot assert detrimental reliance. We thus hold that the
circuit court erred in ruling that the Moormans were equitably
estopped from asserting a defense of the statute of frauds.
Finally, we turn to consider the issue of part performance
raised in this appeal. “[O]ne of the most important objects of
the statute of frauds [is] to prevent the introduction of loose
and indeterminate proofs of what ought to be established by
solemn written contracts.” Henley v. Cottrell Real Estate Co.,
101 Va. 70, 73, 43 S.E. 191, 192 (1903). Therefore, in
invoking the defense of part performance to overcome the
statute of frauds, a party must show that: (1) the parol
agreement relied on is “certain and definite in its terms,” (2)
the acts proved in part performance “refer to, result from, or
19
[were] made in pursuance of the agreement,” and (3) the
agreement was “so far executed that a refusal of full execution
would operate a fraud upon the party, and place him in a
situation which does not lie in compensation.” Runion v.
Helvestine, 256 Va. 1, 6, 501 S.E.2d 411, 414 (1998).
In the present case, the circuit court found that “[i]f
the writings in this case were insufficient to establish a
contract for the sale of the land, part performance is
sufficient to overcome the Statute [of Frauds],” based upon
Blackstock’s “actions in conducting the surveying, engineering,
and soil studies and his purchase of the Heatwole [tract] made
in pursuance of the agreement.”
Yet, Blackstock’s testimony at trial demonstrates that he
did not actually engage in the acts of surveying, engineering,
performing soil studies, and purchasing the Heatwole property,
in pursuance of the purported agreement. Rather, Blackstock
testified that he merely “did [] engineering work to obtain the
right-of-way” from Jewel Moorman. These acts and the purchase
of the Heatwole tract were not, he admitted, part of the
purported contract with the Moormans. We therefore disagree
with the circuit court’s findings, and hold that the evidence
is insufficient to establish that Blackstock undertook any
actions in furtherance of the purported contract so as to
remove this case from the bar of the statute of frauds.
20
CONCLUSION
For these reasons, we hold that the circuit court erred in
finding that various notes, memoranda, and draft agreements
circulated between the Moormans and Blackstock were sufficient
to satisfy the statute of frauds. We also hold that the
circuit court erred in finding that David Moorman acted as the
agent of the Moorman family. We further hold that the circuit
court erred in granting specific performance based upon
equitable estoppel and part performance of the purported oral
contract. In so holding, we find no need to address any other
assignment of error. Accordingly, the judgment of the circuit
court will be reversed and final judgment will be entered in
favor of the Moormans.
Reversed and final judgment.
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