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Monica S. Claman v. Jean M. Popp

June 27, 2012

MONICA S. CLAMAN, APPELLANT (PLAINTIFF),
v.
JEAN M. POPP, APPELLEE (DEFENDANT).



Appeal from the District Court of Sweetwater County The Honorable Jere A. Ryckman, Judge

The opinion of the court was delivered by: Golden, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] In July 2008, Monica Claman (Claman) purchased a house in Rock Springs, Wyoming, from Jean Popp (Popp). In September 2008, Claman filed an action against Popp based on subsidence-caused defects in the house. The district court entered summary judgment against Claman on her breach of contract and negligent misrepresentation claims, and following a bench trial, it entered judgment against her on her fraudulent inducement claim. We affirm.

ISSUES

[¶2] Claman presents the following issues on appeal:

1. Whether the trial court appropriately entered summary judgment against Appellant as to her breach of contract claim.

2. Whether the trial court appropriately entered summary judgment against Appellant as to her claim for negligence/negligent misrepresentation.

3. The legal conclusions reached by the district court as to the facts presented relating to the Appellee's claims to the Wyoming Department of Environmental Quality were improper.

FACTS

[¶3] In 1970, Popp and her husband purchased a house located at 517 Walnut Street in Rock Springs, Wyoming. They lived there together until 2007, when Mr. Popp passed away. In 2008, Popp decided to sell the property so she could move to Elko, Nevada, to be closer to her son and his family.

[¶4] The house at 517 Walnut Street is located in an area of Rock Springs that has been designated as a subsidence area, with at least some of the subsidence in the area caused by abandoned mines that are under the jurisdiction of the Wyoming Department of Environmental Quality (DEQ). During the time that they lived at 517 Walnut Street, Popp, or Popp and her husband, submitted two claims to the DEQ Subsidence Insurance Program. Following the first claim on August 12, 1993, a DEQ claims adjuster inspected the property. The claims adjuster identified subsidence damage to the property, but he concluded that the damage was not attributable to mine subsidence and was therefore not a covered claim. He presented the subsidence damage in a list of thirteen required repairs to the home ranging in cost from a low of $25.00 and a high of $205.00, for a total cost of repair of $1,197.40.

[¶5] On December 14, 1993, the Department notified the Popps that their subsidence claim was denied. It explained:

Enclosed please find a copy of Manville Claims Service claim investigation report detailing the claim on your property. The adjuster's investigation and subsequent conclusions indicate they are of the opinion that the damage to your home is the result of water saturation in the yard and under the cement as well as normal expansion and contraction cracks in the cement.

Based on the investigations and reports completed by Manville Claim Service, the damage cannot be covered by the Wyoming Mine Subsidence Insurance Program. Therefore, I must advise you that your claim will be denied under the rules and regulations of the Wyoming Mine Subsidence Insurance Program. The regulations require the damage to be mine subsidence related. (Emphasis in original.)

[¶6] Popp's second DEQ claim was not a claim for damages, but was instead an application for subsidence insurance submitted in response to the following October 2, 2007, notice from the DEQ:

The Department of Environmental Quality, Abandoned Mine Lands Division (DEQ, AML) is preparing to resume subsidence mitigation efforts of the John Park/Excelsior Mines (Tract H) as early as the week of October 8, 2007. The area of reclamation is bounded by Blair Avenue, Willow Street, Walnut Street and the South Side Belt Loop. The subsidence mitigation efforts will be completed by mass excavation of approximately 600,000 cubic yards of earthwork to expose, remove, and compact the mine workings. The work will be sequentially staged to minimize the total area of disturbance at any one time.

You are receiving this notice because your residence has been identified as being within an area that may potentially be impacted by the subsidence mitigation efforts. Because your residence may potentially be impacted by the mitigation project, the project contractors will be offering to pay subsidence insurance premiums through the AML subsidence insurance program for the next two years. The contractor for this year[']s work is Coleman Construction.

In order for you to receive the subsidence insurance coverage, a baseline inspection of your home will need to be conducted by an AML contractor. Please note that subsidence insurance coverage can not [sic] be provided unless a baseline inspection is conducted. . .

[¶7] Popp submitted her subsidence insurance application on October 13, 2007, followed by a "Property Loss Claim Form," dated November 9, 2007. The Property Loss Claim Form identified minor existing subsidence damage to the property and noted that a report would be provided by Wilbert Engineering, Inc., the engineering firm that inspected the property pursuant to a contract with DEQ. Wilbert Engineering provided DEQ a "Pre-Policy Inspection Report" based on the firm's inspection of the Popp property on October 24, 2007. That report identified a vertical crack in the curb of the sidewalk, several cracks in the driveway with upheaval of concrete, several cracks in the property's retaining walls, cracks and settling in the concrete patio, and sagging in the ceilings of the master bedroom and bathroom. The report described the general condition of the exterior property as "nice condition," and the interior condition as "very nice condition."

[¶8] In the spring of 2008, after she made the decision to sell her home, Popp hired realtor Mary Manatos of High Country Realty to assist with the sale. On April 29, 2008, in conjunction with the property listing, Ms. Manatos instructed Popp to complete a document entitled "Seller's Property Disclosure to Prospective Buyers" (Property Disclosure). Included in the questions presented by the document was the question, "Does the property or neighborhood have any known or suspected subsidence problems?" Popp answered the question by checking the box marked "yes." She did not provide additional information concerning the subsidence issues or reference the submissions to DEQ regarding the property. Also included in the questions presented by the document was the question, "Are there any structural problems with the improvements?" to which Popp responded by checking the box marked "no."

[¶9] Popp signed the Property Disclosure on April 29, 2008. Her signature appeared below the following acknowledgement:

The above description and statement of condition of the subject property is based on my knowledge of the property and all representations are made to the best of my current actual knowledge. I ACKNOWLEDGE AND AGREE THAT I SHALL IMMEDIATELY INFORM BUYER AND BROKER OF ANY CHANGE IN SUCH CONDITIONS THAT MAY APPEAR OR BECOME KNOWN TO ME AFTER THIS DATE. I FURTHER AGREE TO INDEMNIFY AND HOLD HARMLESS ALL BROKERS INVOLVED IN ANY SALE OF THE SUBJECT PROPERTY F R O M ANY AND ALL CLAIMS, INCLUDING DAMAGES, COURT COSTS AND ATTORNEY'S FEES, ARISING FROM MY FAILURE TO COMPLETELY AND TRUTHFULLY DISCLOSE THE CONDITIONS OF MY PROPERTY AS SET FORTH ABOVE. THE INFORMATION CONTAINED IN THIS DISCLOSURE HAS BEEN FURNISHED BY SELLER. (Emphasis in original.)

[¶10] On April 29, 2008, Ms. Manatos listed the Popp property for sale on the Multiple Listing Service (MLS). The MLS listing provided a general description of the property and included an attached copy of the Property Disclosure. The listing described the property as a single level home with no basement and did not indicate whether the property had a crawlspace.

[¶11] On May 27, 2008, Claman viewed the Popp property for the first time with her own realtor, Maria Davis of Coldwell Banker Carrier Realty. Popp was present for the initial walk-through, which lasted approximately an hour. Neither Claman nor Ms. Davis asked Popp any questions concerning the property's condition during that first visit.

[¶12] On May 30, 2008, Claman offered to purchase the Popp property for the full asking price of $168,900.00, and Popp accepted the offer. Claman and Popp then executed on that same date a "Contract to Buy and Sell Real Estate" (Contract). The Contract specified a closing date of June 30, 2008, and authorized Claman, as the Buyer, to have the property inspected on or before June 15, 2008.

[¶13] Under the section of the Contract governing the property's condition, Section

X.A.3 provided:

Seller represents that upon execution of this Contract:

The condition of the property is as stated in the Property Disclosure (WAR Form 900R), an accurate and complete copy of which is attached hereto and incorporated by this reference.

Immediately following Section X.A.3, Sections X.B.1 and X.B.2 of the Contract disclaimed any Buyer reliance on Seller's representations:

Buyer acknowledges and agrees that, upon execution of this

Contract:

1. Buyer is not relying upon any representations of Seller or Seller's Agents or representatives as to any condition which Buyer deems to be material to Buyer's decision to purchase this property; and

2. Buyer has been advised by Selling Broker of the opportunity to seek legal, financial, construction, air quality (such as mold), environmental (such as radon and lead-based paint) and/or professional home inspection services regarding this purchase.

[¶14] Under the section of the Contract governing Buyer inspections, the Contract, in Section XII.A, authorized the Buyer to obtain "electrical, mechanical, structural, air quality . . . , environmental . . . , and/or other inspections of the Property by qualified professional inspectors and/or engineers[.]" Section XII.C concluded this provision with the following waiver:

Waiver of Defects. Buyer acknowledges that Buyer has been given ample opportunity to inspect the property. Other than repairs or defects submitted to the Seller in writing pursuant to XII (A) or XI above [Lender or Appraiser Inspections], or in the event no repairs or inspections are required by Buyer, Buyer accepts the Property in its entirety in "as is, where is" condition without any implied or express warranty by Seller or by any Broker.

[¶15] The Contract ended with a consents and acknowledgements section, Section

XVIII.A, which contained the following merger clause:

All prior representations made in the negotiations of this sale have been incorporated herein, and there are no oral agreements or representations between Buyer, Seller or Brokers to ...


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