Wagner v. Casteel

• Decision Date: 06 May 1983
• Docket Number: CA-CIV,No. 2,2
• Citation: Wagner v. Casteel, 136 Ariz. 29, 663 P.2d 1020 (Ariz. App. 1983)
• Parties: Ronald P. WAGNER and Anne M. Wagner, husband and wife, Plaintiffs/Appellees, v. Robert Brent CASTEEL and Carolyn Casteel, husband and wife; and Leonard Symons Hearn and Constance Julia Hearn, husband and wife, Defendants/Appellants. 4577.
• Court: Arizona Court of Appeals

Page 1020

663 P.2d 1020

136 Ariz. 29

Ronald P. WAGNER and Anne M. Wagner, husband and wife, Plaintiffs/Appellees, v. Robert Brent CASTEEL and Carolyn Casteel, husband and wife; and Leonard Symons Hearn and Constance Julia Hearn, husband and wife, Defendants/Appellants.

No. 2 CA-CIV 4577.

Court of Appeals of Arizona Division 2.

May 6, 1983.

Price & Price by Daniel P. Price, Tucson, for plaintiffs/appellees.

Lacambra, Kerry & Schocket by Nikki A. Chayet, Tucson, for defendants/appellants.

OPINION

HOWARD, Chief Judge.

The Hearns and the Casteels owned a house in Tucson, Robert Casteel, pursuant to a power of attorney given him by the Hearns, sold the house to the Wagners. Prior to the sale Mr. Casteel told the Wagners that they would not have any problems with the roof because it was in good condition and he had just worked on it. This statement was also made to Mrs. Preble, the Wagners' real estate agent. Because this statement was made, the Wagners took no steps to have the roof inspected prior to buying the house.

The first time it rained, the roof leaked. This was not the first time it had leaked, since the evidence showed that prior to the sale to the Wagners the roof had leaked and the occupants of the house, the Parsons, had complained to Mr. Casteel about it. Mr. Wagner had the roof replaced, the cost of which was borne by his insurance company.

The trial court, over objection, allowed appellees to introduce into evidence the depositions of the Parsons which were taken via telephone. After hearing all the evidence, the trial court found that Mr. Casteel fraudulently misrepresented the condition of the roof and that the Hearns were bound by such representations since Casteel was acting for and on behalf of the Hearns. The trial court awarded appellees damages in the sum of $11,519.98 which included damages caused by the leaking water. It also awarded punitive damages in the sum of $5,000.

The complaint also had alleged, in a separate count, that the real estate taxes were improperly prorated at the closing and that appellants had refused to pay their proper share of a tax deficiency that resulted from the improper proration. The trial court awarded appellees judgment on this count in the sum of $318.81 plus attorney's fees on that particular count in the sum of $825.

Appellants contend (1) that the court's finding of fraud was against the weight of the evidence; (2) that the trial court erred by ordering the telephone depositions and by admitting them into evidence; (3) that the trial court erred in finding that evidence of the insurance proceeds received by Wagner was inadmissible under the collateral source rule, and (4) that the court's award of attorney's fees in the amount of $825 on Count II was unreasonable. We affirm.

Actionable fraud requires the concurrence of nine elements: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by the person and in a manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon, and (9) his consequent and proximate injury. Nielson v. Flashberg, 101 Ariz. 335, 419 P.2d 514 (1966). It is appellant's position that three of the required elements are missing, to-wit: a false representation, the right to rely, and knowledge of the falsity of the representation. Appellants contend that the statement which Mr. Casteel made to the Wagners and to Mrs. Preble was a mere expression of opinion, not a false representation, and that the Wagners had no right to rely on such an opinion. Appellants also contend that, assuming the statements were more than opinion, since Mr. Casteel denied that he had any knowledge of the roof leaks prior to the sale, there was no showing that he knew the representations were false. We do not agree.

Mr. and Mrs. Parsons both testified that they called Mr. Casteel and told him that the roof was leaking. This happened on more than one occasion. The record does not disclose any motive for the Parsons to testify falsely in the case and their testimony clearly shows that Casteel knew about the leaks in the roof. Casteel's statement concerning the roof was more than a mere expression of...