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Trimble v. Morgan

July 9, 2007

STEVE M. TRIMBLE & TINA F. GILL PLAINTIFFS
v.
CHARLES C. MORGAN & MARGIE A. MORGAN DEFENDANTS



The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge

ORDER

Presently before the Court are Defendants' Motion for Summary Judgment and Defendants' Daubert Motion to Exclude Testimony of Plaintiffs' Expert.

I. Background*fn1

In 1999, Defendants Charles and Margie Morgan ("the Morgans") purchased a home located at 40 Hibiscus Cove in Maumelle, Arkansas ("the Property"). In 2005, the Morgans decided to move to Nashville, Tennessee, and listed their home for sale with Walt Dickinson of Re/Max Affiliates Realty. When the Morgans listed their home, they completed a Seller Property Disclosure form, which stated in pertinent part:

Purpose of Statement: This is a statement of conditions and information concerning the Property. Unless otherwise advised, the Seller does not possess any expertise in construction, architecture, engineering or any other specific areas related to the construction or condition of improvements on the Property or the Property itself, other than occupying or having ownership of the Property. The Seller possesses no greater knowledge than that which could be obtained by inspection of the Property by potential buyers, lessees, tenants or their representatives. This statement is not a warranty of any kind by the Seller, Listing Agent Firm or any subagent of Listing Agent Firm. THIS DISCLOSURE IS NOT A SUBSTITUTE FOR INSPECTIONS. ANY POTENTIAL PURCHASER OF THE PROPERTY IS ENCOURAGED TO OBTAIN A PROFESSIONAL, PERSONAL OR OTHER INSPECTION PRIOR TO PURCHASING, LEASING, EXCHANGING, RENTING OR OFFERING TO PURCHASE THE PROPERTY.*fn2 It also stated that "[e]ven though this is not a warranty, the Seller hereby specifically makes the following representations based on the Seller's knowledge as of the above date."*fn3

Additionally, the Morgans answered each of the following questions on the Seller Property Disclosure form by checking the "No" response:*fn4

To the best of my knowledge, concerning the Property referenced above:

5. Are there room additions, structural modifications or other alterations or repairs made to the Property since the Property was originally constructed? . . .

9. Has there been any flooding, drainage, grading problems, or has water ever stood on the property or under any improvement constructed thereon?

10. Has there been any damage to the Property or any of the structures from fire, earthquake, storms, floods or landslides prior to or during your ownership? . . .

20. Is any of the Property in the floodplain or floodway? . . .

22. Has there ever been a problem with the roof of any of the improvements on the Property, such as defective shingles, damaged shingles, leaking or otherwise, or have you become aware of possible problems with the roof of any of the improvements on the Property that may occur in the future?

34. Are you aware of any facts, circumstances or events on or around the Property which, if known to a potential buyer, could adversely affect in a material manner the value or desirability of the Property?

41. Are there any other defects in the Property known to you?*fn5 Plaintiffs signed the form, which also stated:

WE ACKNOWLEDGE RECEIPT OF A COPY OF THIS SELLER PROPERTY DISCLOSURE. WE UNDERSTAND THAT THE ABOVE STATEMENTS ABOUT THE PROPERTY ARE TRUE AND CORRECT TO THE BEST OF THE SELLER'S KNOWLEDGE AS OF THE ABOVE DATE. IT IS NOT A WARRANTY OF ANY KIND BY SELLER OR SELLER'S AGENT AND IS NOT A SUBSTITUTE FOR ANY INSPECTIONS BUYER, LESSEE OR TENANT MAY WISH TO OBTAIN.*fn6 Plaintiffs, who were interested in purchasing a home, looked at the Property at least two times in September of 2005.*fn7 Plaintiffs took a video of the Property during one of those visits.*fn8 Plaintiffs made an offer on the Property on September 11, 2005 at 10:00 a.m., which was accepted by Defendants the same day at 7:00 p.m.*fn9 The offer was made "contingent upon the Buyers satisfaction of the inspection."*fn10 Section 16, the "Seller Property Disclosure" section, required that the Defendants provide the Plaintiffs the "written disclosure about the condition of the Property which will contain information that is true and correct to the best of the Seller's knowledge" "in a timely manner" after acceptance of the Contract.*fn11 The Buyer's Disclaimer of Reliance provides:

BUYER CERTIFIES BUYER HAS PERSONALLY INSPECTED OR WILL PERSONALLY INSPECT, OR HAS HAD OR WILL HAVE A REPRESENTATIVE INSPECT, THE PROPERTY AS FULLY AS BUYER DESIRES AND IS NOT RELYING AND SHALL NOT HEREAFTER RELY UPON ANY WARRANTIES, REPRESENTATIONS OR STATEMENTS OF THE SELLER . . . REGARDING THE AGE, SIZE (INCLUDING WITHOUT LIMITATION THE NUMBER OF SQUARE FEET IN IMPROVEMENTS LOCATED ON THE PROPERTY), QUALITY, VALUE OR CONDITION OF THE PROPERTY, INCLUDING WITHOUT LIMITATION ALL IMPROVEMENTS, ELECTRICAL OR MECHANICAL SYSTEMS, PLUMBING OR APPLIANCES, OTHER THAN THOSE SPECIFIED HEREIN (INCLUDING ANY WRITTEN DISCLOSURE PROVIDED BY SELLER AND DESCRIBED IN PARAGRAPH 16 OF THIS REAL ESTATE CONTRACT), IF ANY, WHETHER OR NOT AN EXISTING DEFECTS IN ANY SUCH REAL OR PERSONAL PROPERTY MAY BE REASONABLY DISCOVERABLE BY BUYER OR A REPRESENTATIVE HIRED BY BUYER. . . . LISTING AGENT FIRM AND SELLING AGENT FIRM STRONGLY URGE . . . PROPERTY CONDITION, SQUARE FOOTAGE OF IMPROVEMENTS OF THE PROPERTY . . . SHOULD EACH BE INDEPENDENTLY VERIFIED AND INVESTIGATED.*fn12

The "Inspection and Repairs" section of the Real Estate Contract ("the Contract") provided:

Buyer shall have the right, at Buyer's expense, with the cooperation of Seller, to inspect the electrical, mechanical, plumbing, environmental conditions, appliance, roof and structure,*fn13 and all improvements, structure(s) and components on or about the Property (collectively the "inspection items" within TEN (10) BUSINESS DAYS after the date his Real Estate Contract is accepted. Seller agrees to have all utilities connected and turned on to subject property to allow Buyer to inspect and re-inspect inspection items. Seller, Listing Agent Firm and Selling Agent Firm recommend Buyer use a representative(s) chosen by Buyer to inspect inspection items.*fn14

Plaintiffs, their real estate agent, their decorator, and Mr. Trimble's brother looked at the home prior to closing.*fn15 Mr. Trimble stated in his deposition that, prior to closing on the house, the decorator told Ms. Gill that there appeared to be water stains in the dormer area of the second bedroom, and Ms. Gill relayed that information to him, but he did not do anything about it, did not see it himself, and did not inform the inspector about the possible water stains.*fn16 Ms. Gill also testified that she did not see any water stains, but the decorator stated that a place in the upstairs second bedroom had a slight difference in paint color that looks like it had been repaired or something had been covered up.*fn17

Plaintiffs also hired a professional inspection company to inspect the home. On September 19, 2005, Plaintiff's completed the Inspection, Repair and Survey Addendum, which requested that Sellers repair a condenser coil on the air conditioner, which was "slightly out of level," and to seal an opening in the evaporator coil on the air conditioner.*fn18 Additionally, Plaintiffs requested that the Morgans repair the magnetic strip on the shower stall, the 120 volt outlets in the master bathroom, the weather strip on the rear doors, and gaps between the brick and window frame in two areas.*fn19 Plaintiffs also requested repair of the roof and flashing as described on an attached inspection report.*fn20 The inspection report submitted to the Court contains a section entitled "roof and flashing", which states that the roof was "walked on" and that "two west hip/ridge shingles are torn and two shingles on west slope over laundry are torn."*fn21 Additionally, the report states:

Bottom of valley over [] laundry appears to be leaking or gutters have backed up as fascia board is rotten behind metal wrap. (Visible from rear attic area). All valleys have some pine needles on them which need to be removed. Shingles also have caulked nail holes in random areas where toe-boards were applied during construction. Caulk may deteriorate with long term sun exposure and will need to be maintained.*fn22

Defendants agreed to all repairs except for the removal of pine needles on the roof.*fn23

On October 14, 2005, the Morgans completed the sale of their home to the Plaintiffs, Steve Trimble and Tina Gill. However, Plaintiffs allowed the Morgans to remain in the home until October 19, 2005.*fn24 On October 27, 2005, Plaintiffs signed a form stating:

BUYER WARRANTS, REPRESENTS AND ACKNOWLEDGES THAT BUYER AND ALL PERSONS OR ENTITIES DESIRED BY BUYER HAVE INSPECTED THE PROPERTY TO THE FULLEST EXTENT DESIRED BY BUYER AND FIND THE CONDITION OF THE PROPERTY ACCEPTABLE IN ALL RESPECTS. . . . THE FACT THAT THE BUYER COMPLETES THE PURCHASE OF THIS PROPERTY WARRANTS THAT THE BUYER IS COMPLETELY SATISFIED WITH THE CONDITION OF THE PROPERTY.

After the Morgans moved out, but before Plaintiffs moved in, Plaintiffs hired painters to paint the entire interior of the home and had the carpets cleaned.*fn25 Mr. Trimble testified that sometime between October 19, 2005, and November 22, 2005, but prior to any trees being removed, he noticed several inches of standing water in the backyard after it had rained.*fn26 Prior to moving in, Plaintiffs had nine mature trees removed from the yard by Mr. Schroeder, but Mr. Schroeder did not have the proper equipment to remove additional trees.*fn27 Mr. Trimble testified in his deposition that while the painters were in the house, it rained one time and he witnessed water running ...


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