Vigus v. Milton A. Latta & Sons Dairy Farms, Inc., No. COA08-700 (N.C. App. 5/19/2009)
| Decision Date | 19 May 2009 |
| Docket Number | No. COA08-700.,COA08-700. |
| Court | North Carolina Court of Appeals |
| Parties | IAN VIGUS and LEAH MOORE VIGUS, Plaintiffs, v. MILTON A. LATTA & SONS DAIRY FARMS, INC., a North Carolina Corporation; WILLIAM LATTA, in his official capacity as President, and in his individual capacity; TATE LATTA, in his official and individual capacity; JOLLY BUILDERS, INC., d/b/a AMERICA'S HOME CHECKERS; HAROLD JOLLY, in his capacity as owner-agent for America's Home Checkers, and in his individual capacity; KELLER WILLIAMS REALTY, A North Carolina Corporation; ROBYN MARSHALL, agent for Keller Williams Realty, and in her individual capacity; THE FORD PERRY TEAM; ORANGE REALTY, a North Carolina Corporation; BONNIE GATES, agent for Orange Realty, and in her individual capacity; JOE PHELPS, as agent for Orange Realty and Broker in Charge, and in his individual capacity, Defendants. |
Hairston Lane Brannon, PA, by Anthony M. Brannon, for plaintiff-appellants.
Cheshire & Parker, by D. Michael Parker, for defendant-appellees Milton A. Latta & Sons Dairy Farms, Inc., William Latta, and Tate Latta. Cranfill Sumner & Hartzog LLP, by Daniel G. Katzenbach and Andrew D. Hathaway, for defendant-appellees Jolly Builders, Inc., d/b/a America's Home Checkers, Harold Holly, and Kelly Jolly.
Teague, Campbell, Dennis & Gorham, L.L.P., by Christopher G. Lewis, for defendant-appellees Keller Williams Realty and Robyn Marshall.
Manning Fulton & Skinner P.A., by William C. Smith, Jr., for defendant-appellees Orange Realty, Bonnie Gates, and Joe Phelps.
This case arises out of the sale of a house in Hillsborough, North Carolina, which Ian and Leah Vigus ("Mr. Vigus," "Mrs. Vigus," or collectively "plaintiffs") purchased unseen. After discovering extensive structural damage resulting from termite infestation, plaintiffs filed suit against, inter alia, their real estate agent and her employer, the listing real estate agent and his employer, the sellers of the house, and the home inspector. Summary judgment was granted in favor of the home inspector. The case proceeded to trial against the remaining defendants. After the close of plaintiffs' evidence, the trial court granted motions for directed verdict as to all claims against the multiple defendants.
Plaintiffs now appeal from: 1) the grant of defendants' Motions for Directed Verdict; 2) the denial of plaintiffs' Motion to Reconsider and Motion for New Trial; and 3) the grant of summary judgment for defendant Jolly Builders, Inc., d/b/a America's Home Checkers, and Harold and Kelly Jolly. After careful review, we affirm.
On 22 April 2004, plaintiffs entered into an "Exclusive Right to Represent Buyer-Buyer Agency Agreement" ("Buyers Agreement") with Ms. Robyn Marshall ("Marshall"), a real estate agent employed by Keller Williams Realty ("Keller Williams"). Plaintiffs specifically contracted with Marshall because she was a buyer's agent who would solely represent their interests in any real estate transaction.
Plaintiffs were residing in England at the time, but wished to purchase a home in or around Hillsborough, North Carolina. Mrs. Vigus was pregnant and restricted from traveling by her doctor and Mr. Vigus was not permitted to travel to the United States as he was awaiting approval of his immigration visa. Plaintiffs communicated with Marshall via telephone, facsimile, or mail courier.
Plaintiffs became interested in a house located at 2012 Phelps Road, Hillsborough, North Carolina. The house was listed on the Triangle Multiple Listing Service ("TMLS") by defendant Joe Phelps ("Phelps"), an employee of defendant Orange Realty. Defendants Milton A. Latta & Sons Dairy Farms Inc., William Latta and Tate Latta (collectively "the Lattas") owned the listed property.1 According to the TMLS data, the house was listed for $225,000 and described as an "[o]ld [f]armhouse," with vinyl siding, built in 1940 and remodeled in the early 1980's. Several of plaintiffs' friends visited the house and took photographs of the exterior, but did not go inside, and reported to plaintiffs that the house "'looked great'".
Upon expressing further interest in the property, plaintiffs received a "State of North Carolina Residential Property Disclosure Statement" in which the Lattas made no representations with regard to each query, except when asked if there had been any room additions or structural changes. The Lattas acknowledged that the "[h]ouse was remodeld [sic] in 1981 or 1982." Mr. Latta testified that he asked Marshall why no representations were made, and Marshall explained that because the house had been used as a rental property, the sellers may not know the "history of the property." According to the text of the Disclosure Statement, the seller is informed, "[i]f you check `No Representation,' you have no duty to disclose the conditions or characteristics of the property, even if you should have known of them."
On 22 April 2004, plaintiffs signed an Offer to Purchase and Contract for the Property in the amount of $220,000. The Offer to Purchase contained the following language:
Wood-Destroying Insects: Unless otherwise stated herein, Buyer shall have the option of obtaining, at Buyer's expense, a report from a licensed pest control operator . . . . The Buyer is advised that the inspection report described in this paragraph may not always reveal either structural damage or damage caused by agents or organisms other than wood-destroying insects.
(Alteration in original.) On 23 April 2004, the contract was accepted by the Lattas. On 30 April 2004, an Additional Provisions Addendum was attached to the contract, which included a "Cost of Repair Contingency" that allowed plaintiffs to terminate the contract if a reasonable estimate of repairs to the property exceeded $1,500.
On 12 May 2004, defendant America's Home Checkers ("Home Checkers") performed an official inspection of the property at plaintiffs' request and issued a report. The report stated that Home Checkers was unable to enter the crawl space under the house, but noted that there were uneven floors throughout the house, as well as other needed repairs. The report indicated that there was Mr. Vigus testified that Marshall said "'[e]verything looks fine'" and did not recommend an additional home inspection.
A termite inspection was ordered by Marshall, on behalf of plaintiffs, and the inspector noted in his report that there were "visible signs of termites in front porch, on pillars and whole house."2 The Official North Carolina Wood-Destroying Insect Information Report admittedly reviewed by plaintiffs stated:
If there is evidence of a previous or an active infestation of subterranean termites and/or other wood-destroying insects in the wooden members, it must be assumed that there is some damage to the wooden members caused by this infestation, no matter how slight. If this is the case, the structural integrity of this property should be evaluated by a qualified building expert.
Mr. Vigus asserted that he and his wife read every report that was sent to them by Marshall, though not always the "small print," and spoke with her often. Mr. Vigus claimed that their telephone bill was approximately $2,000 a month due to his frequent conversations with Marshall. Plaintiffs testified that they individually had conversations with Marshall regarding the termite report and that she told them a termite treatment was needed, but that once the termites were eliminated, there would be no further problems. Marshall then ordered the termite treatment, but according to plaintiffs, Marshall did not advise them to have a qualified building expert assess any resulting damage from the termite infestation. Plaintiffs did not have any other inspections performed prior to purchase.
Plaintiffs were not present for the real estate closing on 21 June 2004 as they were still not able to travel to the United States. Mrs. Vigus moved to the United States on or about 14 July 2004 with her two-month-old son. Soon thereafter, as she was moving her belongings into the house, Mrs. Vigus began to notice "soft spots" and unevenness in the flooring. Mr. Vigus obtained his visa and moved to the United States on or about 22 October 2004. Mr. Vigus then began to uncover the massive extent of the termite damage, which had significantly undermined the structural integrity of the home. Mr. Vigus testified that the dirty carpet attached to a tack strip was the only thing preventing someone from falling through the floor. Mr. Vigus stated that the vinyl sidingwas covering extensive damage to the wood underneath. In many places the "wooden siding, the original siding of the house was becoming disconnected from the decomposed and rotten studs."
David Jones ("Jones"), a home inspector who testified for the plaintiffs, stated that there was severe damage to the floor joists, that the floors were artificially propped up by wood and cinder block, and that the house was likely built "between the mid-1800's and 1920[,]" not 1940 as the TMLS sheet indicated. Jones further testified that the house "had the worst termite damage that [he had] ever seen in 23 years of inspecting houses."
Jeff Nielson, owner of Nielson Construction, testified as to various repair estimates he provided plaintiffs. ...
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