Summary 2010 WY 23

Summary of Decision issued March 3, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Throckmartin v. Century 21 Top Realty; Throckmartin v. Nelson

Citation: 2010 WY 23

Docket Number: S-08-0250; S-08-0269

Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge.

Representing Appellant Throckmartin: Jessica Rutzick, Jackson, Wyoming and John R. Vincent, Riverton, Wyoming.

Representing Appellee: Billie L.M. Addleman and Gary R. Scott, Hirst Applegate, LLP, Cheyenne, Wyoming, representing Century 21 Top Realty. Kathy Hove, Casper, Wyoming; P. Craig Silva and Patrick J. Murphy of Williams, Porter, Day & Neville, PC, Casper, Wyoming representing Vicki Means Nelson and Real Estate Professionals, Inc., d/b/a Re/Max Professionals.

Facts/Discussion: In November 2005 the Throckmartins purchased a house in Gillette. In August 2006 they discovered 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. The Throckmartins filed suit naming two real estate firms and their respective agents as well as the sellers of the home and the home inspection experts. Other litigation remains pending in the district court with respect to the sellers and the inspection specialists.

Case No. S-08-0250: The only contention the Throckmartins brought against Hove and Century 21 was that as a real estate agent in Gillette, Hove had a duty to know the “actual condition” of all the properties she sold to buyers. Hove denied having any actual knowledge of the problems and the Throckmartins did not point to pertinent authority that Hove had a duty to be aware of the condition of the properties she showed to buyers. Although the principle of caveat emptor has been blunted in the arena of real estate by case law and statute, the primary responsibility for obtaining adequate inspections of newly purchased homes falls on the buyer. The record on appeal did not support a factual finding that Hove did anything to frustrate, discourage or impede the Throckmartins’ full right to have complete inspections done on the home they decided to purchase.
Case No. S-08-0269: The Throckmartins contended that Nelson and Re/Max owed them a duty to fully disclose material facts and to affirmatively verify the truth of information or to investigate the property. In addition, they contended the duty was breached amounting to a claim for negligent nondisclosure and negligent representation. However, since Nelson and Re/Max were both considered intermediaries, in Wyoming they had no duty to conduct an independent inspection of the property for the benefit of the buyer and no duty to independently verify the accuracy or completeness of statements made by the seller or independent inspectors.

Conclusion: The district court concluded there were no genuine issues of material fact since the Throckmartins were unable to come forward with any facts that suggested the adverse material facts at issue were “actually known” to Hove and Century 21. Hove and Century 21 were entitled to judgment as a matter of law. The facts supported the conclusion that there was no contract between Nelson and Re/Max and the Throckmartins. Without a contract, there was no basis for imposition of the implied covenant, whether in contract or in tort, because either cause of action arises out of the contractual relationship.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ygnw9xc .

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