Mobley v. Copeland
| Decision Date | 20 April 1992 |
| Docket Number | No. 17573,17573 |
| Citation | 828 S.W.2d 717 |
| Court | Missouri Court of Appeals |
| Parties | Gilbert L. MOBLEY, Plaintiff-Appellant, v. Donald D. COPELAND and Jan L. Copeland, Defendants-Respondents. |
Stephen L. Shepard, Shepard & Rahmayer, Springfield, for plaintiff-appellant.
Warren S. Stafford, Kevin M. FitzGerald, Taylor, Stafford, Woody, Cowherd & Clithero, Springfield, for defendants-respondents.
The plaintiff, Gilbert L. Mobley, appeals from a summary judgment denying his claims for damages arising out of his purchase of residential real estate from the defendants Donald D. Copeland and Jan L. Copeland. Count I of the plaintiff's petition was based on allegations of fraud; Count III on allegations of a breach of an implied warranty of habitability. 1
At issue on appeal is whether, considering the record before the trial court, there
exists a genuine issue of material fact concerning the plaintiff's allegations that the defendants made fraudulent representations or breached an implied warranty of habitability. We answer that question in the negative and affirm the judgment of the trial court.
From the pleadings, the May 24, 1990, depositions of plaintiff and both defendants, and other exhibits, the following facts emerge. The subject property, located in Springfield, was used by the defendants as their residence for 12 years. The defendants purchased the lot in 1973, and the following year they hired a contractor recommended to them by friends to build a house on the lot on a "cost-plus" basis. The house was constructed with a "crawl space" but no basement. Approximately one year after the house was completed, the defendants hired a contractor to install a swimming pool.
As of the date of his deposition, Donald Copeland had been a cookware and china retailer for approximately 35 years. In early 1989, he obtained a Missouri real estate broker license. He denied being a real estate developer. During the time the house was under construction, the defendants were, in Donald Copeland's words, "probably out there every weekend looking things over." Donald Copeland denied that he supervised construction of the house; at the time it was being built he was working 70 hours a week at his retail business. At the time the house was under construction, Jan Copeland was a homemaker. As of the date of her deposition, she had been employed in the travel agency business for seven years.
In May 1986, the defendants listed their property for sale at a price of $279,900 with real estate agent Ethel Curbow. The property was shown to the plaintiff by Donna Truitt, who was associated with a different real estate agency than was Curbow, and the plaintiff purchased the property through Truitt.
After the August 27, 1986, closing, the plaintiff discovered certain conditions of the property upon which he based his claims for damages. In his petition, he alleged that he discovered--after August 27, 1986--that (1) the house was constructed at a low elevation on the lot, the "landscaping around the residential dwelling was not terraced away from the foundation," and, as a result, "surface water run off from [the lot] was directed to and remained under the residential dwelling"; (2) "electrical charges ran through the swimming pool"; (3) "several air vents throughout the residential dwelling did not have air ducts leading outside"; and (4) "rain poured through the roof onto the interior walls of the residential dwelling." For convenience, we shall refer collectively to these alleged conditions as "the house problems."
Summarized, the plaintiff's argument for recovery under Count I is that the house problems were latent defects, the defendants knew of the defects, they had a duty to disclose the defects to him, but they failed to disclose them. 2 Disposition of the plaintiff's Count I claims requires the recitation of additional facts.
We begin with material extracted from the plaintiff's deposition and other exhibits. The plaintiff's initial contact with the property came during his first visit to Springfield, in June 1986, when he interviewed to join a group of physicians. As part of the interview process, he was shown the community by Truitt, a real estate agent In early July 1986, the plaintiff returned to Springfield, apparently after receiving an offer to join the physicians' group. He and Donna Truitt again visited the defendants' home; again, the defendants were not present. After this second tour of the property, the plaintiff offered $200,000 to purchase it. The defendants rejected the plaintiff's offer but counter-offered to sell for $244,000. By a July 13 telegram to Donna Truitt, the plaintiff accepted the $244,000 counter-offer "as relayed by Donna Truitt." At deposition, the plaintiff insisted that his agreement to purchase the property was contingent on his "having the ability to verify that the house was worth the money on my own--my own appraisal."
whose husband was a partner in the physicians' group. During the tour, Donna Truitt showed the defendants' property to the plaintiff. The defendants were not home at the time. On that first visit, the plaintiff could see "how beautiful it was, what a grand purchase it would be, how well kept it had been, the aesthetics of it were highly impressive." The plaintiff was uncertain whether he went inside the house on the first visit
Donna Truitt secured the services of a real estate appraisal firm for the plaintiff. The plaintiff told Truitt he wanted the appraisers to 3
Although the plaintiff said he had the property "inspected" by the appraisers "to see if there are any problems with the house," he did not talk to them prior to the closing and he did not know whether he received a copy of their report prior to closing. Asked why he did not talk to them prior to closing, he said, "I was interested in the bottom line figure, and the bottom line figure was that I was not being taken; it was probably worth that value." According to the appraisal, the market value of the property was $246,000.
At some point during the period between August 7 and the closing, the plaintiff telephoned the defendant Jan Copeland from his place of employment in Georgia to obtain information about utility companies. The plaintiff said Jan Copeland was "extremely upset" because an appraiser was at the house (or had recently been there) at a time when the house was not presentable because the defendants were "in the process of moving out," there were "boxes everywhere," and "all the pictures [were] off the walls."
The plaintiff went to the property a total of "four or five times" before closing. During his tours of the property, the plaintiff looked "everywhere that I knew to look...." He confirmed he "had an opportunity to look all around the house and the grounds, do anything you wanted to," and he agreed that no one prevented him from "checking anything that you wanted to."
The plaintiff characterized "two or three" of his visits as "invited, scheduled, be-sure-the-Copelands-are-gone" occasions, accompanied by real estate agent Truitt. One visit, already described, concerned second mortgage financing.
The plaintiff also visited the property--alone and in the absence of the defendants--twice on the day before closing, once in the afternoon and once in the evening. By that time, "everything had been taken out, except for a few dust piles in the garage." The plaintiff also discovered that the swimming pool "was approximately eight inches low on water and ... was being filled with a water hose."
When the plaintiff found the water level low, he called the owner of a swimming pool company. The plaintiff said that one of the conditions of closing was that the swimming pool "be certified as being in working order," and that the pool company he called was the one that was to provide Suspecting a leak in the pool, the plaintiff insisted that $1000 of the purchase price be escrowed to pay the cost of repair. After closing, another swimming pool firm repaired two leaks at a cost of $500, which was taken out of the escrowed funds.
that certification. The plaintiff learned the certification was limited to the pumping and filtration systems; the pool company had not checked the pool for leaks. The certification is not in the record, and we do not find the certification requirement in the contract.
Immediately after the closing, the plaintiff discovered in the master bedroom a water stain on the ceiling, warped, water-stained paneling on one wall, and water damage to trim molding and a built-in cabinet. The plaintiff said the damage was "not significantly worse" as of the date of his deposition than it was when he purchased the residence. He said that The plaintiff estimated that from 10 to 20 square feet of paneling needed to be replaced.
The plaintiff had not previously noticed the damage because there was "a rubber tree plant adequately disguising the area." When he asked the defendant Donald Copeland about the damage, Copeland responded,
During the first month the plaintiff occupied the residence, he experienced a leak in the roof or chimney. Every time there was "a soaking rain," something more than "a simple shower," he could hear a dripping noise and see and feel moisture on the stained and warped portions of the wall and ceiling in the master bedroom. After several repair attempts by at least three roofing companies, the plaintiff said, "the situation is...
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