Birt v. Wells Fargo Home Mortgage, Inc.

[T1] David and Kimberly Birt (the Birts) appeal from the district court's Order Denying Defendant's Motion to Dismiss and Granting Defendant's Motion for Summary Judgment. Because there are no genuine issues of material fact and Wells Fargo Home Mortgage, Inc. (Wells Fargo) is entitled to judgment as a matter of law, we affirm.

ISSUES

[T2] The parties' separate renditions of the numerous issues raised in this appeal are lengthy and somewhat argumentative. Consequently, we will restate the issues as follows, all of which arise in summary judgment context:

1. Did the parties enter into an express contract?

2. Did the parties enter into an implied contract?

8. Are the contract claims barred by the statute of frauds?

4. Did Wells Fargo breach the covenant of good faith and fair dealing?

5. Does the doctrine of promissory es-toppel apply?

6. Does the doctrine of equitable estop-pel apply?

7. Did Wells Fargo intentionally interfere with a contract between the Birts and their construction company?

8. Did Wells Fargo breach a duty to the Birts for the purposes of a negligence claim?

9. Did Wells Fargo breach a fiduciary duty owed to the Birts?

10. Was Wells Fargo guilty of negligent misrepresentation?

FACTS 1

[T3] The Birts intended to construct a house on property they owned in Laramie County. In April 2000, the Birts met with Richard Gibbs (Gibbs), a Wells Fargo loan officer. After reviewing the Birts' financial documents, Gibbs advised them that they would be eligible for a loan of $180,000.00. Gibbs did not disclose to the Birts that, based on their credit report, sub-prime financing at a higher interest rate would be necessary. The Birts had not built a home before, and they relied on Gibbs for guidance in completing the loan process. Gibbs advised the Birts to contact a building contractor, to develop design plans, and to keep him updated. The Birts updated Gibbs frequently, and Gibbs continued to assure the Birts that a loan would be forthcoming.

[14] In July 2000, the Birts advised Gibbs that Mr. Birt was no longer self-employed, but had obtained full-time employment with guaranteed overtime. After reviewing - additional - financial - information supplied by the Birts, Gibbs advised them that the new employment put them in a better position, and stated that they might be eligible for an even larger amount. Gibbs advised the Birts to go forward with their plans because obtaining a loan would not be a problem. An architect completed design plans, and in August 2000, the Birts gave the plans to their proposed building contractor, Carter Brothers, to initiate the house's construction. Carter Brothers supplied the Birts with an estimated construction cost of $234,744.40. In mid-August 2000, Carter Brothers arranged for an appraisal of the house plans.

[T5] On September 4, 2000, Gibbs advised the Birts to sign a construction contract with Carter Brothers, even though he knew, from a second eredit report pulled in early August, that the Birts' credit rating had slipped and that they would not be able to borrow as much as previously anticipated. That afternoon, the Birts signed the construction contract for the earlier estimated amount. On September 12, 2000, the Birts received a letter welcoming them to Wells Fargo Mortgage Resources. Accompanying the letter were various loan disclosure documents required by the Federal Truth in Lending Act, which provided estimates of the loan amount, interest rate, and number of *647 payments. 2 The letter concluded by stating, "We look forward to serving you."

[T6] During August and September 2000, representatives of Carter Brothers contacted Wells Fargo and inquired when the loan commitment letter would be completed so that construction could begin. Carter Brothers also hired a surveyor to survey the land. On October 2, 2000, Carter Brothers contacted the Birts and told them that they had not yet received the loan commitment letter. A few days later, Mrs. Birt contacted Gibbs' supervisor to inquire as to the status of the loan. The supervisor reviewed the file, and later that day informed the Birts that the loan had been denied. The Birts then terminated the construction contract.

STANDARD OF REVIEW

[17] Summary judgment motions are governed by W.R.C.P. 56(c):

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

[T 8] Our standard for the appellate review of a summary judgment was recently reiterated in Rino v. Mead, 2002 WY 144, ¶ 12, 55 P.3d 13, 17-18 (Wyo.2002) (quoting Hasvold v. Park County School Dist. No. 6, 2002 WY 65, ¶ 11, 45 P.3d 635, 637-38 (Wyo.2002)):

"Summary judgment is proper only when there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law.... We review a summary judgment in the same light as the district court, using the same materials and following the same standards. 'We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the ree-ord.". ... Summary judgment serves the purpose of eliminating formal trials where only questions of law are involved.... We review a grant of summary judgment by deciding a question of law de novo and afford no deference to the district court's ruling on that question....

... A material fact is any fact that, if proved, would have the effect of establishing or refuting an essential element of a claim or defense asserted by a party...."

DISCUSSION

[19] The Birts' complaint against Wells Fargo alleged ten causes of action: breach of an express contract, breach of an implied contract, breach of the implied covenant of good faith and fair dealing, breach of an agreement to lend money, equitable estoppel, promissory estoppel, intentional interference with a contractual relationship, negligence, negligent misrepresentation, and breach of a fiduciary duty. Wells Fargo obtained summary judgment on all counts. We will separately discuss each cause of action, as well as Wells Fargo's statute of frauds defense. Many of the above-related facts are significant to the discussion of more than one issue. We will not repeat all the facts for each issue, but each issue will be considered in the context of all the facts.

Express CONTRACT

The basic elements of a contract are offer, acceptance, and consideration. McLean v. Hyland Enterprises, Inc., 2001 WY 111, ¶ 42, 34 P.3d 1262, 1272 (Wyo. 2001). In order for a contract to exist, there must be mutual assent to the same terms. Roussalis v. Wyoming Medical Center, Inc., 4 P.3d 209, 231 (Wyo.2000). Whether a contract exists, its terms and conditions and the intent of the parties generally are questions of fact to be resolved by the fact-finder. Ewing v. Hladky Const., Inc., 2002 WY 95, ¶ 11, 48 P.3d 1086, 1088 (Wyo.2002) (quoting Roussalis, 4 P.3d at 250). An express con *648 tract is one in which the terms are declared by the parties either in writing or orally at the time the contract is formed. Boone v. Frontier Refining, Inc., 987 P.2d 681, 685 (Wyo.1999); Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 216 (Wyo.1994). An express oral contract may be interpreted as a matter of law if the terms are shown without conflict in the evidence. Anderson v. South Lincoln Special Cemetery Dist. ex rel. Bd. of Trustees of South Lincoln Special Cemetery Dist., 972 P.2d 136, 139 (Wyo.1999).

[T11] One specific question in determining the parties' intent is whether their contract was meant to be formed only upon the signing of written documents or was meant to be formed upon an oral understanding.

" 'An agreement to make a written contract where the terms are mutually understood and agreed on in all respects is as binding as the written contract would be if it had been executed" Robert W. Anderson House[w]recking and Excavating, Inc. v. Board of Trustees, School District No. 25, Fremont County, Wyoming, 681 P.2d 1326, 1331 (1984).

" 'In general, the principle is well settled that where the parties to a contract intend that it shall be closed and consummated prior to the formal signing of a written draft, the terms having been mutually understood and agreed upon, the parties will be bound by the contract actually made, although it be not reduced to writing; but, on the other hand, if the parties do not intend to close the contract until it shall be fully expressed in a written instrument properly attested, then there will be no complete contract until the agreement shall be put into writing and signed. Summers v. Mutual Life Ins. Co., 12 Wyo. 369, 75 P. 937, 943 (1904)."

Frost Const. Co. v. Lobo, Inc., 951 P.2d 390, 394 (Wyo.1998) (quoting Wyoming Sawmills, Inc. v. Morris, 756 P.2d 774, 776 (Wyo.1988)).

[T12] The Birts contend that, from the beginning, it was "understood" that they were seeking a mortgage loan from Wells Fargo for an amount between $180,000 and $185,000, with terms "within industry standards," and with the newly constructed home to serve as collateral. It is their position that the loan agreement was consummated when Wells Fargo sent them the Federal Truth in Lending disclosures:

The disclosure statements provided to the Birts dated September 12, 2000, included the exact amount of the loan, the dates for repayment, the collateral offered, the parties involved, and an estimated interest rate.... Upon receiving these documents, Mrs. Birt contacted Gibbs on ... she and her husband's behalf and expressed their willingness to sign the documents.... Gibbs' instruction to wait until closing was all that prevented the Birts from signing the documents contained in the disclosure packet dated September 12, 2000.

[113] We cannot agree with the Birts' assessment of this situation. If anything, Gibbs' instruction not to sign the disclosure documents but to wait until closing evinces Wells Fargo's intent that those documents were not a contract. Furthermore, it would certainly create havoe in the consumer lending industry were courts to declare the existence of a contract whenever a lender fulfilled its federal obligation of complete disclosure. Indeed, if an express contract was formed in such instance, the lender also could enforce it, leaving the borrower with no final opportunity to accept or reject the terms. That, of course, would destroy the purpose of disclosure. Furthermore, there is simply nothing in the record that suggests that the relationship between the Birts and Wells Fargo ever advanced beyond the loan application stage. assertions on behalf of Wells Fargo simply did not evidence an intention that an agreement had been finalized. At most, Gibbs' statements to the Birts can be characterized as assurances that the loan would be approved.

[114] There are no genuine issues of material fact in regard to the Birts' express contract cause of action and Wells Fargo is entitled to judgment. The district court's *649 ruling on this issue is affirmed. 3

IMPLIED CONTRACT

[115] Although no express contract may have been formed, negotiating parties may reach an "implied-in-fact" contract. An implied-in-fact contract is distinguishable from a contract "implied in law." The former may be found to exist as a matter of fact and is dependent upon the parties' intent. Shaw v. Smith, 964 P.2d 428, 435-36 (Wyo. 1998). The latter is imposed as a matter of law, as an equitable remedy. Amoco Production Co. v. EM Nominee Partnership Co., 2 P.3d 534, 541 (Wyo.2000); Clark v. Gale, 966 P.2d 431, 438 (Wyo.1998). For an implied-in-fact contract to have been created by the parties' conduct, " ' "the conduct from which that inference is drawn must be sufficient to support the conclusion that the parties expressed a mutual manifestation of an intent to enter into an agreement." '" Shaw, 964 P.2d at 435-36 (quoting Lavoie v. Safecare Health Service, Inc., 840 P.2d 239, 248 (Wyo.1992)).

[T16] In determining whether an implied contract was formed, we look not to the subjective intent of the parties, but to " 'the outward manifestations of a party's assent sufficient to create reasonable reliance by the other party'" Givens v. Fowler, 984 P.2d 1092, 1095 (Wyo.1999) (quoting McDonald v. Mobil Coal Producing, Inc., 820 P.2d 986, 990 (Wyo.1991)). The question is "whether a reasonable man in the position of the offeree would have believed that the other party intended to make an offer." Boone, 987 P.2d at 687. In 1991, we adopted Restatement (Second) of Contracts § 19 (1979) for guidance in determining whether an implied-in-fact contract exists:

"(1) The manifestation of assent may be made wholly or partly by written or spoken words or by other acts or by failure to act.

(2) The conduct of a party is not effective as a manifestation of his assent unless he intends to engage in the conduct and knows or has reason to know that the other party may infer from his conduct that he assents.

(3) The conduct of a party may manifest assent even though he does not in fact assent. In such cases a resulting contract may be voidable because of fraud, duress, mistake, or other invalidating cause."

McDonald, 820 P.2d at 990. In essence, an implied-in-fact contract may arise where "parties act in a manner conveying mutual agreement and an intent to promise...." Worley v. Wyoming Bottling Co., Inc., 1 P.3d 615, 620 (Wyo.2000). Interpretation of an unambiguous implied-in-fact contract is a question of law. Garcia v. UniWyo Federal Credit Union, 920 P.2d 642, 645 (Wyo.1996).

[117] In support of their claim that an implied-in-fact contract existed in this case, the Birts rely on their numerous contacts with Gibbs from April through September 2000, Gibbs' assurances that he was an expert in loan processing, their own financial naiveté, and Gibbs' repeated assurances that the loan would be approved. As with their express contract claim, they also emphasize their receipt from Wells Fargo of the disclosure documents:

Considering the constant assurances of Gibbs, the Birts' lack of sophistication with the process, and the receipt of the doeu-ments that appeared to be mortgage papers more than five months into the process, it was not unreasonable for the Birts to rely on the terms and conditions of Gibbs' statements and the disclosure documents received. The Birts mirrored their assent to Gibbs' statements by incurring the services of an architect, entering into a construction contract, and obtaining both an appraisal and survey to move forward with the construction of their home. It can be clearly inferred by the conduct of *650 the Gibbs and the Birts that there was a mutual agreement for the provisions of the mortgage and a manifested intent to promise based upon Gibbs['] statements to both the Birts and the Carter Bros.

[T18] In response to this argument, Wells Fargo contends that the discussions between Gibbs and the Birts never advanced beyond the pre-qualification and application phases of the financing process, and that the Birts simply cannot identify a point in time where Wells Fargo gave approval for a mortgage loan. Further, Wells Fargo notes that the Birts' subjective beliefs did not create a contract where Wells Fargo had not manifested an intent that a contract be formed.

[119] We conclude that summary judgment in favor of Wells Fargo was appropriate on this issue. There are no genuine issues of material fact from which a fact-finder could conclude that an implied-in-fact contract arose. Even Mrs. Birt acknowledged in her deposition testimony that at the time she and her husband deeded their land over to Carter Brothers for construction purposes, they knew that Wells Fargo had not produced a commitment letter. That, in effect, is an admission that the Birts knew that no loan agreement had yet been reached. Mrs. Birt also testified that she knew the figures in the disclosure documents were "just numbers plugged in," and that the "actual numbers" would be provided at closing. Furthermore, Mrs. Birt knew that the loan was not meant to be consummated until the signing of final papers at closing:

Q. Did he say why they were just numbers plugged in and not the actual numbers?

A. No.

Q. Okay. Did you ask him?

A. No, I didn't. I just told him-I did ask him if we should sign it and he says, no, don't sign it because we'll have new papers drawn up at the time of closing, that this is just an example of what the loan would look like.

(Emphasis added.)

[120] Clearly, the Birts were aware that Wells Fargo did not intend to create a contract, through Gibbs' conduct or otherwise, in advance of the execution of final loan doeu-ments at closing. While the Birts certainly appear fully to have expected that closing to occur, it cannot be said that any identified conduct of Gibbs or Wells Fargo manifested an intent to enter into an oral contract or for the Birts to sign the disclosure documents as a contract. We affirm the district court's ruling on this issue.

Goop Fark anp Fam

[121] Our conclusion that neither an express contract nor an implied-in-fact contract existed in this case leads inexorably to the further conclusion that Wells Fargo was entitled to summary judgment on the issue of its alleged breach of the implied covenant of good faith and fair dealing. Without a contract, there is no basis for imposition of the implied covenant, whether in contract or in tort, because either cause of action arises out of the contractual relationship. Scherer Const., LLC v. Hedquist Const., Inc., 2001 WY 23, ¶¶ 20, 23 n. 3, 18 P.3d 645, 654-55 n. 3 (Wyo.2001);, Wilder, 868 P.2d at 221; 86 C.J.S. Torts §§ 4 and 5 (1997); 74 Am.Jur.2d Torts § 19 (2001). The duty of good faith and fair dealing does not come into play until the parties have reached an agreement and does not bind them during their earlier negotiations. Husman, Inc. v. Triton Coal Co., 809 P.2d 796, 801-02 (Wyo.1991).

Stature or Fraups

[122] Wyo. Stat. Ann. § 1-23-105 (LexisNexis 2003) provides, in pertinent part:

(a) In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith:

(1) Every agreement that by its terms is not to be performed within one (1) year from the making thereof[(.]

[T 23] Where loan payments extend beyond a year, the underlying contract, to be found enforceable, must be in writing and signed by the party against whom enforcement is sought. Giacchino v. Estate of Stalkup, 908 P.2d 983, 986 (Wyo.1995). It is uncontested that the proposed loan in the instant case *651 was to be for thirty years. That key fact is the gist of Wells Fargo's statute of frauds argument-because the loan agreement could not be performed within one year, any contract had to be in writing. In their Reply Brief, the Birts propound two counter-arguments. First, they assert that Wells Fargo is precluded from raising the statute of frauds on appeal because it did not appeal from the district court's order denying the motion to dismiss and granting the motion for summary judgment. Second, the Birts contend that, even if the statute of frauds applies to their contract claims, it does not apply to their equitable claims.

[T24] In the district court, Wells Fargo raised the statute of frauds as part of its summary judgment argument, not as a basis for its motion to dismiss. Consequent ly, the district court's denial of the motion to dismiss did not implicate the statute of frauds. 4 In granting summary judgment to Wells Fargo, the district court made no mention of the statute of frauds. Instead, the district court ruled that the uncontested facts simply could not sustain any of the causes of action. Under these cireumstances, it would not seem appropriate to expect that Wells Fargo would have appealed from a decision in its favor, and we are inclined to consider the statute of frauds defense as having been properly raised on appeal. 5

[125] Like the district court, we have concluded that neither an express contract nor an implied-in-fact contract existed between Wells Fargo and the Birts. Consequently, the statute of frauds issue is moot to that extent. Furthermore, inasmuch as Wells Fargo did not raise the defense of the statute of frauds, either here or below, in regard to the Birts' equitable claims, we need not consider that issue. 5

Promissory EstOPPEL

[¥26] "Promissory estoppel is a doctrine incorporated in the law of contracts" B & W Glass Inc. v. Weather Shield Mfg., Inc., 829 P.2d 809, 813 (Wyo.1992). Its general theory is that, " 'if an unambiguous promise is made in cireum-stances calculated to induce reliance, and it does so, the promisee if hurt as a result can recover damages'" Id. (quoting Goldstick v. ICM Realty, 788 F.2d 456, 462 (7th Cir. 1986)). Promissory estoppel applies, however, only if no contract exists. Sowerwine v. Keith, 997 P.2d 1018, 1021 (Wyo.2000). The elements of promissory estoppel are:

"(1) the existence of a clear and definite promise which the promisor should reasonably expect to induce action by the promis-ee; (2) proof that the promisee acted to its detriment in reasonable reliance on the promise; and (8) a finding that injustice can be avoided only if the court enforces the promise."

City of Powell v. Busboom, 2002 WY 58, ¶ 8, 44 P.3d 63, 66 (Wyo.2002) (quoting Roussalis, 4 P.3d at 253). The party asserting promissory estoppel has the burden of establishing each element under a burden of strict proof, Busboom, 2002 WY 58, ¶ 8, 44 P.3d at 66. The first two elements are questions of fact for the fact-finder; the third element is a question of law for the court. Id.; Loya v. Wyoming Partners of Jackson Hole, Inc., 2001 WY 124, ¶ 22, 35 P.3d 1246, 1254 (Wyo.2001).

[T27] For purposes of the doe-trine of promissory estoppel, a promise is a "manifestation of intention to act or to refrain from acting in a specified way made so as to justify a promisee in understanding that a commitment has been made." Busboom, 2002 WY 58, ¶ 10, 44 P.3d at 66. A *652 promise may arise through words or conduct, but conduct must be specifically demonstrative of an intention respecting future conduct before it can serve as the foundation for a clear and definite promise. Id., 2002 WY 58, 1 10, 44 P.3d at 66-67.

[T28] In addition to establishing the existence of a clear and definite promise, a plaintiff must also show " 'action or forbearance of a definite and substantial character'" to satisfy the second element of the doctrine. Loya, 2001 WY 124, ¶ 22, 35 P.3d at 1254 (quoting Worley, 1 P.3d at 624). Further, such action or forbearance must be the result of "reasonable reliance." Davis v. Davis, 855 P.2d 342, 348 (Wyo.1993). We have described reasonable reliance as follows:

In Provence [v. Hilltop National Bank, 780 P.2d 990 (Wyo.1989)], we explained that detriment in reasonable reliance is closely tied to the existence of a clear and definite agreement. A reasonable person does not rely to his or her detriment on an oral agreement unless it is sufficiently clear and definite as to induce him or her to act. Provence. "There can be no es-toppel as a matter of law when the asserted reliance is not justifiable or reasonable under the cireumstances of the case considered as a whole." Roth [v. First Security Bank of Rock Springs, Wyoming], 684 P.2d [93,] 97 [ (Wyo.1984) ] (citing Matter of Simineo v. Kelling, 199 Colo. 225, 607 P.2d 1289 (1980)). The representation that induces the reliance also must be the immediate or proximate cause of the act in reliance. Roth. The knowledge and sophistication of the relying party is to be considered in determining reasonableness (Roth) and consistent with the Restatement (Second) of Contracts § 90, we also consider the reasonable foreseeability by the promisor that the promisee would rely on the statement or representation. [Inter-Mountain Threading, Inc. v.] Baker Hughes [Tubular Services, Inc., 812 P.2d 555 (Wyo.1991)].

Davis, 855 P.2d at 348.

[129] The third element of promissory estoppel is a finding by the court that "the equities" support enforcement of the promise. This means that promissory estop-pel is only invoked when it is necessary to avoid injustice, which is a policy determination that embraces an element of discretion. Id. at 349.

[130] "The standard of appellate review of matters in equity varies widely by jurisdiction." 27A Am.Jur.2d Equity § 262 at 746 (1996). Some courts hold that an appeal in an equitable matter opens the entire case for review as if no decision had been rendered below, whereas some courts limit review to a determination of whether substantial evidence supports the judgment, the judgment is against the great weight of the evidence, or there were errors of law. 5 Am.Jur.2d Appellate Review § 696 at 366-67(1995). We have previously held that, in a bench trial situation, our review is for an abuse of discretion, the questions being whether the trial court could reasonably conclude as it did and whether any part of its ruling was arbitrary or capricious. Thompson v. Board of County Com'rs of the County of Sublette, 2001 WY 108, ¶ 7, 34 P.3d 278, 280-81 (Wyo.2001). The instant case, however, does not involve a bench trial, but comes to this Court by way of summary judgment. Recently, we noted that "we have approved the use of summary judgment in actions which were historically equitable in nature," and we quoted from an Oklahoma case in describing appellate review in such cases:

"The underlying action, being one to foreclose a mortgage lien, is equitable in nature. - Ordinarily, in reviewing a case of equitable cognizance a judgment will be sustained on appeal unless it is found to be against the clear weight of the evidence or is contrary to law or established principles of equity. But because this comes to us from an order granting summary judgment the appellate standard of review is de novo."

McNeill Family Trust v. Centura Bank, 2003 WY 2, ¶¶ 9-10, 60 P.3d 1277, 1282 (Wyo. 2003) (quoting Abboud v. Abboud, 2000 Ok Civ App 116, ¶ 4, 14 P.3d 569, ¶ 4 (Okla.Civ. *653 App.2000)). 6 We apply our traditional standards for review of a summary judgment. See Hulse v. First Interstate Bank of Commerce Gillette, 994 P.2d 957, 958-59 (Wyo.2000).

[T31] The district court in the instant case did not grant summary judgment to Wells Fargo on the promissory es-toppel claim because "the equities" demanded it. Rather, the district court found neither a clear and definite promise nor reasonable detrimental reliance. In that regard, we find the undisputed material facts of this case indistinguishable from those of Hulse. Simply stated, statements made during the loan application process preparatory to the signing of long-term financing agreements do not constitute a clear and definite promise where the terms of the proposed agreement are not to be finally determined until a formal closing. "[The oral promise of a bank representative is not sufficient to support a claim of promissory estoppel where the statement did not specify the loan amount, interest rate, repayment schedule, or collateral." Id. at 959. 7 The court may not supply the missing terms to create an agreement. Id. (quoting Doud v. First Interstate Bank of Gillette, 769 P.2d 927, 928-29 (Wyo.1989)).

[132] Our conclusion that the district court correctly found that the Birts had failed to establish the first element of promissory estoppel obviates any need to analyze the second element. We will, however, briefly note our holding in Davis, 855 P.2d at 348, that "detriment in reasonable reliance is closely tied to the existence of a clear and definite agreement. A reasonable person does not rely to his or her detriment on an oral agreement unless it is sufficiently clear and definite as to induce him or her to act." - Here, not only did the Birts know that the final terms of the proposed loan had not been determined, they also knew that no loan commitment letter had been issued by Wells Fargo. Reliance on an indefinite promise is unreasonable for the same reason that courts cannot enforce such a promise-the terms remain to be determined.

[T33] The district court's grant of summary judgment to Wells Fargo on the Birts' claim of promissory estoppel is affirmed.

EStrOPPEL

[134] " Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded from asserting rights which might otherwise have existed as against another person who has in good faith relied upon such conduct and has been led thereby to change his position for the worse." " Snake River Brewing Co., Inc. v. Town of Jackson, 2002 WY 11, ¶ 28, 39 P.3d 397, 407-08 (Wyo.2002) (quoting State Farm Mut. Auto. Ins. Co. v. Petsch, 261 F.2d 331, 335 (10th Cir.1958)). "Equitable estop-pel arises only when a party, by acts, con duct, or acquiescence causes another to change his position." Roth v. First Sec. Bank of Rock Springs, Wyo., 684 P.2d 93, 96 (Wyo.1984). The elements of equitable es-toppel are a lack of knowledge, reliance in good faith, and action or inaction that results in an injury. Id. Equitable estoppel is similar to promissory estoppel, but equitable es-toppel is a tort doctrine that requires proof of misrepresentation. B & W Glass, Inc., 829 P.2d at 813. In Davis, 855 P.2d at 348, we expanded upon the similarities between these two doctrines:

The doctrines of promissory estoppel and equitable estoppel are closely related and, as we impliedly recognized in [Inter-Mountain Threading, Inc. v.] Baker Hughes [Tubular Serv., Inc., 812 P.2d 555 *654 (Wyo.1991)], they often have been invoked together and interchangeably, without the benefit of clear distinction. Baker Hughes. See also Roth v. First Sec. Bank of Rock Springs, Wyo., 684 P.2d 93 (Wyo.1984). Reasonable reliance is an element common to both of these doctrines. Baker Hughes. Thus, we find that equitable estoppel cases are cited in promissory estoppel cases with respect to this common element. In Wyoming, these doctrines most often have been presented in the context of preliminary negotiations for commercial agreements.

[¥385] Several pages of the Birts' appellate brief are dedicated to a detailed expostulation of the conduct of Gibbs that they feel substantiates their equitable estoppel claim: Gibbs claimed to be an expert in processing loans, so the Birts, lacking sophistication in such matters, placed their faith and trust in him; Gibbs recognized problems with the Birts' credit history as early as April 2000, yet he informed the Birts that their eredit record was not a problem; Gibbs failed to tell the Birts that their pre-qualification was valid for only thirty days; Gibbs told the Birts that Mr. Birt's employment change would allow for an even higher loan amount; Gibbs did not inform the Birts when in August 2000 he identified additional eredit problems that would necessitate a higher interest rate; despite these mounting problems, Gibbs continued to encourage the Birts to move forward