Hice v. Lott
| Decision Date | 25 November 2009 |
| Docket Number | No. 08CA2615.,08CA2615. |
| Citation | 223 P.3d 139 |
| Parties | Shannon HICE, Plaintiff-Appellant, v. Katrina LOTT, Sheila C. Middendorf, B & B Appraisals, and SCM Appraisals, Inc., Defendants-Appellees. |
| Court | Colorado Court of Appeals |
Bloom Murr & Accomazzo, P.C., Joseph A. Murr, Daniel R. Delaney, Denver, Colorado, for Plaintiff-Appellant.
Treece, Alfrey, Musat & Bosworth, P.C., Michael L. Hutchinson, Kathleen M. Byrne, Denver, Colorado, for Defendants-Appellees.
Opinion by Judge BERNARD.
In this action seeking to recover damages based upon allegedly "inaccurate" and "inflated" real estate appraisals, plaintiff, Shannon Hice (the buyer), appeals the summary judgment entered in favor of defendants, Katrina Lott, Sheila C. Middendorf, B & B Appraisals, and SCM Appraisals, Inc. (the appraisers). We affirm.
This appeal presents two issues. The first is whether expert testimony is necessary to establish the standard of care an appraiser must employ when appraising a structure that may be a "mobile home." We conclude, based upon the record before us, that expert testimony is necessary in this summary judgment context as a matter of law.
The second issue is whether the trial court improperly dismissed the buyer's breach of contract claims. We conclude that the trial court did not err because, before the court entered the summary judgment order, the buyer did not contest the appraisers' argument that the buyer's claims were based on tort, not on contract.
The buyer held a lease purchase option on real property located in Brighton, Colorado. There was a dwelling on the property.
The buyer asked the seller to have the property appraised. At the seller's request, the appraisers performed separate appraisals of the property. They issued written reports valuing the property at $336,000 and $410,000, respectively.
The buyer also asked the seller to have the appraisers determine whether the dwelling was a "mobile home" that had been placed on a permanent foundation. Their reports each stated that the dwelling had been a "modular" home:
It has been verified with the county appraiser that due to [the dwelling] being attached to a permanent foundation, [the dwelling's] classification is [a] single family residence and no longer modular.
One report added that some modular homes were used as comparisons in the appraisal process. Both reports stated that the dwelling "was never a mobile home."
Upon receiving these appraisals, the buyer allegedly expended substantial money and time toward purchasing the property. After making these expenditures, she obtained a third appraisal from another source, which stated that the dwelling had been "brought in as a mobile home," and that the property was actually worth less than $252,500 at the time of the earlier appraisals.
Alleging that she was a third-party beneficiary to the contract between the seller and the appraisers, the buyer filed claims against the appraisers for professional negligence, negligent misrepresentation, and breach of contract. She contended that she would not have expended the money and time on the property in anticipation of buying it had she known that the dwelling had been a mobile home.
The buyer filed certificates of review under section 13-20-602, C.R.S.2009, declaring that "a person who has expertise in the area of the alleged conduct" of the appraisers had been consulted, and he had concluded that the claims did not lack substantial justification. However, when the buyer filed her expert witness disclosure, it only listed the name of a man who was not a real estate appraiser, but rather a licensed and certified installer of manufactured homes and a "licensed real estate and insurance broker." The buyer indicated that this man would testify that the dwelling was, or had been, a mobile home.
The buyer added that a receipt for a mobile home had been discovered "in the building department's file" concerning the property.
Before trial, the appraisers filed a motion for summary judgment in which they argued that the buyer was required to prove, through expert testimony, what the appraisers' standard of care was when appraising the property, and that they had not satisfied that standard. They argued that the buyer's only designated expert was not qualified to testify on those critical subjects, and that the buyer's failure to endorse a standard of care expert was fatal to her claims.
In her response, the buyer asserted that there was "no need for an expert to testify as to the standard of care and breach thereof" because the applicable standard was "easily understood," and was "codified" in the Uniform Standards of Professional Appraisal Practice (USPAP), which have been adopted in Colorado.
In ruling on the summary judgment motion, the trial court concluded:
• "USPAP standards are general standards and do not directly address the question presented in this case."
• "[E]xpert testimony would be required to prove that the alleged conduct of [the appraisers] constituted a breach of the standard of care set forth by ... USPAP."
• "The significance, both absolute and relative, of whether the [dwelling] was formerly a mobile or modular home, and the resulting effect upon the fair market value of the subject property, are beyond the knowledge of ordinary persons even with the non-specific guidance of the provisions of ... USPAP."
The buyer filed a motion to reconsider in which, for the first time, she sought to distinguish her negligence and contract claims. She argued that her contract claims "were not the subject" of the summary judgment motion, and that issues regarding the standard of care and expert testimony were "not necessary to determine" those claims. She also attached excerpts from deposition transcripts, portions of which she had not included or referenced in her response to the summary judgment motion. The trial court denied the motion to reconsider.
Based on our de novo review, we conclude that the trial court correctly determined that the issue of whether the dwelling was formerly a "mobile home" or a "modular home," and the effect of that determination on the dwelling's appraised value, were beyond the experience of ordinary jurors, even when assisted by the general USPAP standards upon which the buyer relies.
The buyer contends that the trial court erred in entering summary judgment on her negligence claims because those claims did not require expert testimony to establish the standard of care. We disagree.
A party is entitled to summary judgment if the pleadings, discovery materials on file, and the affidavits of the parties, if any, establish that there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. C.R.C.P. 56(c). In determining whether summary judgment is appropriate, the court must give the nonmoving party the benefit of all favorable inferences reasonably drawn from the undisputed facts and all doubts must be resolved against the moving party. See Brodeur v. Am. Home Assurance Co., 169 P.3d 139, 146 (Colo.2007). We review a trial court's grant of summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251, 1256 (Colo.1995).
In order to establish a prima facie case of negligence, a plaintiff must establish that (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty; (3) the plaintiff was injured; and (4) the breach of the duty caused the plaintiff's injury. Whether a duty exists is a legal question to be decided by the trial court. Woods v. Delgar Ltd., ___ P.3d ___, ___, 2009 WL 2182598 (Colo.App. No. 08CA1288, July 23, 2009).
When determining whether a defendant owes a duty, the court determines whether the defendant has an obligation to the plaintiff. The "standard of care" is what the defendant must do, or must not do, to satisfy this obligation. See generally W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 356 (5th ed.1984).
When a claim of negligence is based on an allegation that a professional was negligent, the plaintiff must show that the professional's conduct fell below the standard of care associated with that profession. See Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75, 80-81 (Colo.2001).
For those practicing a profession involving specialized knowledge or skill, the applicable standard of care generally requires the actor to possess a standard minimum of special knowledge and ability and to exercise reasonable care in a manner consistent with members of the profession in good standing.
Command Commc'ns, Inc. v. Fritz Cos., 36 P.3d 182, 189 (Colo.App.2001).
Establishing a standard of care in a professional negligence case normally requires an expert to explain it because ordinary persons are not conversant with it. See Redden, 38 P.3d at 81 (); Williams v. Boyle, 72 P.3d 392, 397 (Colo.App.2003) ().
However, expert testimony is unnecessary in such cases if the relevant standard of care does not require specialized or technical knowledge. See Am. Family Mut. Ins. Co. v. Allen, 102 P.3d 333, 343 (Colo.2004); see also White v. Jungbauer, 128 P.3d 263, 264 (Colo.App.2005)(expert testimony is not required if the subject matter of a professional negligence claim lies within the ambit of common knowledge of ordinary persons).
Nor is expert testimony required if a legislative enactment or administrative rule establishes the specific standard of care. See Allen, 102 P.3d at 343; see also Giampapa v. Am. Family...
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