Throckmartin v. Realty

• Decision Date: 03 March 2010
• Docket Number: S-08-0269.,No. S-08-0250,S-08-0250
• Citation: 226 P.3d 793,2010 WY 23
• Parties: Bryon THROCKMARTIN and Vanessa Throckmartin, Appellants (Plaintiffs),v.CENTURY 21 TOP REALTY, a Wyoming corporation; and Kathie Hove, Appellees (Defendants).Bryon Throckmartin and, Vanessa Throckmartin, Appellants (Plaintiffs),v.Vicki Means Nelson; and Real Estate Professionals, Inc., a Wyoming corporation, d/b/a Re/Max Professionals, Appellees (Defendants).
• Court: Wyoming Supreme Court

226 P.3d 793

2010 WY 23

Bryon THROCKMARTIN and Vanessa Throckmartin, Appellants (Plaintiffs),

v.CENTURY 21 TOP REALTY, a Wyoming corporation; and Kathie Hove, Appellees (Defendants).

Bryon Throckmartin and, Vanessa Throckmartin, Appellants (Plaintiffs),

v.Vicki Means Nelson; and Real Estate Professionals, Inc., a Wyoming corporation, d/b/a Re/Max Professionals, Appellees (Defendants).

Nos. S-08-0250, S-08-0269.

Supreme Court of Wyoming.

March 3, 2010.

Representing Appellants: Jessica Rutzick, Jackson, Wyoming; and John R. Vincent, Riverton, Wyoming. Argument by Ms. Rutzick.

Representing Appellees: Billie L.M. Addleman and Gary R. Scott, Hirst Applegate, LLP, Cheyenne, Wyoming, representing Century 21 Top Realty and Kathie Hove; and ^* Phillip T. Willoughby, Casper, Wyoming; P. Craig Silva and Patrick J. Murphy of Williams, Porter, Day & Neville, P.C., Casper, Wyoming, representing Vicki Means Nelson and Real Estate Professionals, Inc. d/b/a Re/Max Professionals. Argument by Messrs. Addleman and Silva.

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

HILL, Justice.

[¶ 1] In November of 2005, Bryon and Vanessa Throckmartin purchased a house in Gillette. In August of 2006, they discovered that the basement of the house leaked very badly during significant rainfall, that the foundation had crumbled, and that the house was becoming uninhabitable. Eventually it was condemned by the City of Gillette in mid-2007-a total loss for the Throckmartins. They filed suit naming two real estate firms (and their respective agents) as defendants, as well as the sellers of the home and the home inspection experts who inspected the home for the Throckmartins, prior to closing. The district court granted summary judgment in favor of the real estate firms and their agents in each of the captioned appeals. Other litigation remains pending in the district court with respect to the sellers and the inspection specialists.

[¶ 2] The Appellants in Case No. S-08-0250 are Bryon and Vanessa Throckmartin (Throckmartins). The Appellees are Century 21 TOP Realty (TOP) and Kathie Hove (Hove) (during proceedings below it was explained that Century 21 and TOP are no longer associated). TOP is a real estate brokerage firm and Hove is a sales representative and associate broker who worked for that firm. The Throckmartins claimed that Top Realty and Hove engaged in professional negligence, breached the contract between them, engaged in fraudulent concealment of defects in the home, and breached the duty of good faith and fair dealing implied in their contract and articulated in applicable statutes. Hove was a real estate agent who provided services to the Throckmartins in their endeavor to buy their first home.

[¶ 3] The Throckmartins are also the Appellants in Case No. S-08-0269. The Appellees are Vicki Means Nelson (Nelson) and Real Estate Professionals, Inc., d/b/a Re/Max Professionals (Re/Max). Nelson and Re/Max had listed for sale the home which is at issue in this case and another employee of Re/Max was the first to show the Throckmartins that home.

[¶ 4] We will affirm both of these cases.

ISSUES

[¶ 5] In Case No. S-08-0250 the Throckmartins raise this issue:

Did the district court erroneously grant summary judgment in favor of Hove and Century 21 TOP Realty on [Throckmartins'] claims against them for professional negligence, breach of contract, breach of duty of good faith and fair dealing, and fraudulent concealment?

TOP and Hove restate the issues like this:

1. Whether [Throckmartins] can now assert a claim for professional negligence not previously plead?

2. Did the district court correctly grant [TOP] and [Hove] summary judgment on [Throckmartins'] claim for breach of contract?

3. Did the district court correctly grant [TOP] and [Hove] summary judgment on [Throckmartins'] claim for breach of the duty of good faith and fair dealing?

4. Did the district court correctly grant [TOP] and [Hove] summary judgment on [Throckmartins'] claim for fraudulent concealment?

In their reply brief, the Throckmartins contend they did make a timely claim sounding in professional negligence, that real estate professionals must abide by professional standards other than those found in Wyo. Stat. Ann. §§ 33-28-301 through 33-28-311 (LexisNexis 2009), that the “intermediary” statute does not supersede the duty of care established in Hulse v. First American Title Co. (Hulse I), 2001 WY 95, 33 P.3d 122 (Wyo.2001), and Hulse v. BHJ, Inc. (Hulse II), 2003 WY 75, ¶ 10, 71 P.3d 262, 268 (Wyo.2003), and that a question of fact exists as to whether Hove breached the duties set forth in the Real Estate License Act.

[¶ 6] In Case No. S-08-0269, the Throckmartins challenge the district court's order granting summary judgment in favor of Nelson and Re/Max. Nelson was the listing/selling agent for the parcel of real estate at issue in this appeal. She worked for Re/Max. In the initial pleadings another Re/Max agent was also named as a defendant, Val Elliot. Elliot was eventually dismissed by stipulation of the parties, but her testimony affected the claims against Nelson and Re/Max, and we will recite portions of her testimony in our rendition of the circumstances that must be considered in resolving this case. The home the Throckmartins purchased was listed with Re/Max, by the sellers. The issue raised in this appeal is simply stated to be:

Did the district court erroneously grant summary judgment in favor of [Nelson] and [Re/Max] on [Throckmartins'] claims against them for professional negligence, breach of contract, breach of the duty of good faith and fair dealing, and fraudulent concealment?

In response, Nelson and Re/Max provide this statement of the issues:

The district court properly granted summary judgment in favor of [Nelson] and [Re/Max] because there were no genuine issues of material fact and [Nelson] and [Re/Max] were entitled to judgment as a matter of law.

[A.] Issue regarding contract:

The district court properly found that there were no genuine issues of material fact and there was no contract between Throckmartins and [Nelson] as a matter of law.

[B.] Issue regarding disclosure:

The district court properly found that there were no genuine issues of material fact and there was no violation of Wyo. Stat. Ann. § 33-28-111 as a matter of law.

[C.] Issue regarding malpractice:

Throckmartins improperly raised on appeal for the first time a claim for real estate malpractice/negligence.

[D.] Issue regarding breach of covenant:

The district court properly found that there were no genuine issues of material fact and as a matter of law, there was no contract and because there was no contract there could be no breach of the covenant of good faith and fair dealing.

The Throckmartins assert in their reply brief that they did make a timely claim for professional negligence against Nelson and Re/Max, that there are genuine issues of material fact as to whether Nelson and Re/Max breached their duties to the Throckmartins, and that the provisions of § 33-28-303 are only the minimal standards by which realtors must abide.

FACTS AND PROCEEDINGS

[¶ 7] The Throckmartins were referred to Hove by a real estate finance company employee when they first began looking to buy a home in the late summer of 2005. Hove showed the Throckmartins several new construction homes that qualified for the sort of Wyoming Community Development Authority (WCDA) loan the Throckmartins were seeking at that time. Those houses were under construction but not yet finished. Later, when Mrs. Throckmartin became employed, they qualified for different sorts of financing (other than WCDA first-time home owner loans), as well as for a larger loan (up to $175,000.00, which was the selling price of the home they eventually purchased).

[¶ 8] The Throckmartins spotted a home they fancied which was offered for sale through Re/Max. They sought out a different real estate agent who worked for Re/Max, not realizing that that was not the usual way of utilizing the services of a real estate agent. However, no problems arose from the inclusion of that secondary real estate professional, other than that Hove did not show the Throckmartins the home that they were intent on buying. Instead it was shown to them by a Re/Max agent. Hove first saw the house on October 24, 2005, when she went over to that house (at the Throckmartins' request) to admit the home inspectors engaged by the Throckmartins. A property condition statement covering that property had been provided to Hove, and in turn to the Throckmartins. That condition statement revealed that there were problems with basement walls, but Mr. Throckmartin had discussed that directly with the seller and was apparently satisfied with the explanation provided. The Throckmartins asked Hove to find a home inspector for them (because they did not have the time to do so themselves) and Hove proceeded to seek out a suitable inspector. Hove contacted inspectors until she found one who was able to do the inspection in a manner that satisfied the Throckmartins' time lines. A copy of the property condition statement was not provided to the inspector by Hove or by the Throckmartins. The Throckmartins were very excited about the house and wanted to buy it very quickly.

[¶ 9] Val Elliot worked with Nelson at Re/Max. She recalled the Throckmartins coming into her office and asking to view the house they ultimately purchased. She related that at that time the real estate market in Gillette was very fast-paced and properties, especially those in that price range, did not stay on the market very long and there were not very many of them available for sale. She showed the Throckmartins only that one property and the owners of the house happened to be present at the time of that showing. Elliot felt that the Throckmartins made an “impulse” decision to purchase the house on the spot. Although Elliot had not seen the sellers' disclosure statement, she had some concerns about the house because the...