Hildebrandt v. Hukill
| Decision Date | 10 May 2019 |
| Docket Number | NO. 2018-CA-000968-MR,2018-CA-000968-MR |
| Parties | GERHARD HILDEBRANDT AND YAYI CHANG (A/K/A YAYI HILDEBRANDT) APPELLANTS v. JENNIFER HUKILL; ELITE REALTY GROUP, LLC; THOMAS ADAMS; ADAMS MULTI-SERVICE, INC; CHRISTOPHER YOUNG; GINA YOUNG; JOHN CORBITT FRANKLIN; AND KY PUNCHLIST, LLC APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
The Hildebrandts relocated from Salt Lake City, Utah, to Lexington, Kentucky, in mid-2015. In preparation for their move, the Hildebrandts retained the services of a realtor and viewed numerous homes. On April 19, 2015, Gerhard attended an open house at 413 Lakeshore Drive, which was owned by Gina and Christopher Young (the "Property"). The Property was an older home, with an estimated age of forty-six years in 2015. While touring the Property, Hukill, the Youngs' realtor, told Gerhard that a contractor had recently inspected the Property and informed her that the Property had "good bones." Hukill additionally informed Gerhard that the Property's second floor had recently been opened up and inspected, which inspection revealed no problems. The Hildebrandts quicklymade an offer on the Property, which the Youngs accepted on April 20, 2015. The Hildebrandts and the Youngs executed a purchase contract that day.
Pursuant to the purchase contract, a complete inspection of the Property was to be performed within fifteen days of the date the contract was accepted. The Hildebrandts agreed that, within four days of the inspection, they would submit in writing a list of any repairs needed to bring the items inspected to standard operating condition. The purchase contract indicated that if the Hildebrandts and Youngs could not agree on what repairs should be made to the Property, the contract would be voidable at the option of either party
In early May of 2015, the Hildebrandts hired Adams to perform the inspection of the Property. Pursuant to the inspection agreement Adams gave to the Hildebrandts, Adams's inspection was to be visual only, and excluded "[d]eficiencies and defects which are latent, concealed, or not readily accessible." R. 551. On May 6, 2015, Adams gave the Hildebrandts a sixty-one-page report on his inspection (the "Inspection Report"), which revealed numerous issues with the Property. Among those issues, Adams noted that the floor plane on the second floor was uneven. Adams's report indicated that this seemed to be caused by a flaw in the floor framing and was probably not correctable. R. 531. The report specifically indicated that Adams had been unable to fully inspect certain areas ofthe Property, such as the basement and the Property's foundation condition, due to being blocked by the Youngs' storage of personal items. R. 537-38.
Because of the number of issues raised in the Inspection Report, the Hildebrandts contacted Hukill to request a contractor to come inspect the Property—specifically, to inspect the unevenness of the second floor.2 Hukill informed the Hildebrandts that a contractor would not be able to inspect the Property on the date that they had requested. The Hildebrandts then informed Hukill that unless a structural engineer inspected the Property, they would seek to be released from the purchase contract. On May 13, 2015, Hukill informed the Hildebrandts that the Youngs had agreed to pay for certain specified repairs to the Property and to have framers come inspect the second floor. Hukill's email additionally indicated that if the Hildebrandts wished to hire a structural engineer, that engineer would be permitted to inspect the Property.
Two days later, Hukill sent the Hildebrandts a letter from Pyramid Consulting Structural/Civil Engineers, Inc., the company selected by the Youngs to inspect the second floor of the Property. That letter stated that, following a visual inspection of the slope in the second floor, no signs of deficiencies in the floor framing support system had been observed. Based on that letter, in combinationwith the Youngs agreeing to cover the costs of repairs, the Hildebrandts determined to move forward with purchasing the Property. An addendum to the purchase contract was executed on May 16, 2015, by which the Youngs agreed to hire a contractor to make repairs according to a list the Hildebrandts had provided. Closing was scheduled for June 8, 2015.
On June 5, 2015, Yayi went to the Property to meet with a contractor the Hildebrandts had contacted to discuss a potential remodel of the Property.3 While waiting for the contractor to arrive, Yayi observed that the floor in the downstairs family room and the door frame above the patio door were sagging. When Yayi asked the contractor to take a look at those issues, he explained to her that the sagging was probably caused by insufficient support from the basement and an undersized header. The next day, the Hildebrandts requested that they be released from the purchase contract. Ms. Hukill informed the Hildebrandts that the Youngs would not authorize a release. Further, Ms. Hukill stated that she had already spoken with an attorney and that she and the Youngs would sue the Hildebrandts if closing did not occur.
After contacting an attorney and discussing the matter amongst themselves, the Hildebrandts decided to proceed with the closing. A finalwalkthrough took place on the morning of June 8, 2015. After that walkthrough, Gerhard signed, on his own behalf and as power of attorney for Yayi, a final walkthrough confirmation indicating that they had inspected the Property and accepted it in its present condition. R. 256. The Hildebrandts closed on the purchase contract without protest.
Thereafter, the Hildebrandts purported to discover numerous structural defects in the Property. In a letter sent to Adams dated July 19, 2015, the Hildebrandts indicated that these defects concerned sagging floors, ceilings, and doorways on both floors of the Property, as well as sagging joists in the basement, none of which Adams had noted in the Inspection Report. The Hildebrandts had Adams come back to the Property to observe the defects and recommend a contractor; however, they informed Adams shortly after he left the Property that they had already retained a contractor to address the issues. According to the Hildebrandts, that contractor uncovered a multitude of structural defects in the Property's foundation walls, roof construction, floor framing, and window and door openings.
On March 28, 2016, the Hildebrandts filed a complaint against Adams and Hukill.4 Therein, the Hildebrandts contended that Hukill had made numerousrepresentations to them that the Property's structure was sound, which amounted to fraud. The Hildebrandts additionally contended that Hukill's threats of legal action in the event that the Hildebrandts did not follow through with the closing were unjustified and unwarranted in violation of KRS5 324.160. The Hildebrandts brought breach of contract and negligence claims against Adams, based on his failure to uncover the extensive structural defects in the Property during his inspection. Essentially, the Hildebrandts argued that if Adams had conducted his inspection in a workmanlike manner, the Hildebrandts would have been informed of all structural defects in the Property and would not have purchased it.
On March 21, 2018, Hukill moved for summary judgment. In the memorandum accompanying her motion, Hukill contended that the Hildebrandts' fraud claim must fail because they had notice of all defects in the Property prior to closing. Specifically, Hukill noted that the Hildebrandts' home inspection had uncovered numerous defects and that Yayi had personally observed defects in the Property's flooring and door framing. Notice of these defects had caused the Hildebrandts to request to be released from the purchase contract twice; however, they had ultimately decided to follow through with purchasing the Property.Further, the Hildebrandts had declined the Youngs' offer to retain a structural engineer to come and inspect the Property. Hukill contended that, based on the Hildebrandts' notice of defects in the Property, they could not contend that they had relied on any statements she had made about the Property's structural integrity. As to the Hildebrandts' claim that she had violated KRS 324.160, Hukill argued that the proper forum for such complaints was before the Kentucky Real Estate Commission, not the Fayette Circuit Court.
Adams moved for summary judgment on April 9, 2018. Like Hukill, Adams argued that the Hildebrandts had notice of all the defects in the Property that formed the basis of their suit. Adams contended that he had conducted a thorough visual inspection of the Property. Pursuant to his contract with the Hildebrandts, that inspection had been performed in accordance with the American Society of Home Inspectors Standard of Practice. In addition to the Inspection Report's detailing numerous deficiencies in the Property, it had clearly stated that the inspection was to be visual only and had informed the Hildebrandts that there had been...
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