No. 90CA0302Colorado Court of Appeals.
Decided November 21, 1991.
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Appeal from the District Court of El Paso County Honorable Richard V. Hall, Judge.
Charles J. Haase, for Plaintiffs-Appellants.
McGeady Weston, David H. Wollins, for Defendants-Appellees Richmond Homes Limited, and MDC Realty and Management Company, MDC Holdings, Inc.
Otten, Johnson, Robinson, Neff Ragonetti, P.C., Darrell Waas, Kristen L. Mix, David W. Stark, for Defendant-Appellee Land Title Guarantee Company.
Kent Jay Levine, P.C., Kent Jay Levine, for Defendant-Appellee Coldwell Banker Residential Real Estate Services, Inc.
The Wills Law Firm, David Pitinga; Darrell D. Thomas, for Defendants-Appellees McCoy Realty Company, Joe Clement Properties, Inc., d/b/a Remax Properties, Inc., Berwall Investments, Inc., d/b/a Century 21 American Investment Realty, Merit Company, Inc., and Kerry P. Warner, d/b/a Warner Brokerage Company.
Edward M. Shields, P.C., Edward M. Shields, for Defendants-Appellees McGinnis Associates, Inc., and Ken Reyhons Associates, Inc.
No appearance for Defendants-Appellees Van Schaack Company, The Salzman Group Ltd., Cornuke Associates, Ltd., Real Estate 5, Inc., and John H. Smith, d/b/a Vision Real Estate Management Companies.
Division IV.
Opinion by JUDGE MARQUEZ.
[1] Plaintiffs, consisting of a number of purchasers of residential real property, appeal from summary judgments entered in favor of defendants, Richmond Homes Limited; M.D.C. Realty Management Co.; MDC Holdings, Inc.; Coldwell Banker Residential Real Estate Services, Inc.; Land Title Guaranty Company; McCoy Realty Co.; Joe Clement Properties, Inc., d/b/a Remax Properties, Inc.; Berwall Investments, Inc., d/b/a Century 21 American Investment Realty; Merit Company, Inc.; Kerry P. Warner d/b/a Warner Brokerage Company; McGinnis Associates, Inc.; and Ken Reyhons Associates, Inc. We affirm. [2] This case was filed as a common complaint by thirty-two sets of purchasers of residential real estate against Richmond Homes Limited, the seller of the properties; Land Title Guaranty Company, who performed the closing on all of the properties; and various real estate brokers who were present at some of the closings. The claims for relief were also asserted against MDC Realty and Management Company who acted as the real estate broker representing Richmond in the sale of the properties and was a subsidiary of the samePage 917
parent company as Richmond, M.D.C. Holdings, Inc.
[3] Plaintiffs’ primary complaint is that they were not made aware, before closing, that the properties they were purchasing were included in a general improvement district and thus subject to additional taxes. [4] Defendants Richmond and MDC Realty filed a motion for summary judgment in which defendants Coldwell Banker, McGinnis, Reyhons, and Vision Real Estate, joined. These motions were granted. The court later granted a motion by Richmond, MDC Realty, and MDC Holdings to amend the summary judgment order to include MDC Holdings. [5] Defendants McCoy Realty, Clement Properties, Berwall Investments, Merit Co., and Warner Brokerage Co., also filed a motion for summary judgment that was granted. In addition, the court granted Land Title’s motion for summary judgment. [6] Under C.R.C.P. 56(c), summary judgment is proper only when the pleadings, affidavits, depositions, or admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The burden of establishing that there is no genuine issue of material fact is on the moving party. Once the moving party has met the initial burden of production, the burden shifts to the non-moving party to establish that there is a triable issue of fact. Civil Service Commission v. Pinder, 812 P.2d 645 (Colo. 1991). [7] The party against whom summary judgment may be entered is entitled to the benefit of all favorable inferences that may be drawn from the facts. However, a court may enter summary judgment if, in addition to the absence of any genuine factual issues, the law entitles one party or the other to a judgment in its favor. Mt. Emmons Mining Co. v. Town of Crested Butte, 690 P.2d 231 (Colo. 1984). [8] Further, when a motion for summary judgment is made and supported as provided in C.R.C.P. 56, an adverse party may not rest upon the mere allegations or denials in his pleadings, but his response by affidavits or other means must set forth specific facts showing that there is a genuine issue for trial. C.R.C.P. 56(e). Nor can material issues of fact be raised simply by means of argument. Bauer v. Southwest Denver Mental Health Center, Inc., 701 P.2d 114 (Colo.App. 1985). [9] An affirmative showing of specific facts probative of a right to judgment uncontradicted by any counter-affidavits submitted leaves a trial court with no alternative but to conclude that no genuine issue of material fact exists. Terrell v. Walter E. Heller Co., 165 Colo. 463, 439 P.2d 989 (1968).I.
[10] Plaintiffs first contend that the court erred in granting the motion for summary judgment filed by Richmond and MDC Realty, as joined by MDC Holdings. We disagree.
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district, (c) that plaintiffs had waived their right to assert any claim for the failure to deliver a current commitment for a title insurance policy, and (d) that they owed no fiduciary duty to plaintiffs. In support of this motion Richmond and MDC Realty attached copies of a purchase agreement, title policy, excerpts from the depositions of two of the plaintiffs, and a disclosure document indicating Richmond and its agents were agents of seller and were not representing the purchaser. In response plaintiffs refer to portions of the Colorado Real Estate Manual but offered no supporting documents.
[18] The trial court granted the motion adopting the arguments set forth in defendants’ motion and in their reply. A.
[19] Plaintiffs contend that there are genuine issues of material fact as to whether Richmond fraudulently concealed or negligently misrepresented that the properties were included in the general improvement district and the effect such inclusion would have on the future taxes of the properties. We disagree.
[20] 1.
[21] The elements of fraudulent concealment are: (1) the defendant’s concealment of a material existing fact that in equity or good conscience should be disclosed, (2) the defendant’s knowledge that the fact is being concealed, (3) the plaintiff’s ignorance of the fact, (4) the defendant’s intent that the plaintiff act on the concealed fact, and (5) the plaintiff’s action on the concealment resulting in damage. Berger v. Security Pacific Information Systems, Inc., 795 P.2d 1380 (Colo.App. 1990).
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[29] “Title to the property shall be merchantable in Seller . . . . Seller shall execute and deliver a good and sufficient general warranty deed to Purchaser at closing, conveying the property free and clear of all liens and encumbrances except the following, to wit: . . . any taxes or assessments arising by reason of the inclusion of the property in a special improvement district, fire protection district, recreation and park district, water and sanitation district or in a municipality providing these services.” [30] Although plaintiffs contend that they had no actual or constructive knowledge of the improvement district prior to closing, we conclude that the plaintiffs, at a minimum, had constructive notice. [31] A person is deemed to have constructive notice of any instrument encumbering the title to real property once the document has been recorded in the office of the county clerk and recorder of the county where such real property is located. Arnove v. First Federal Savings Loan Ass’n, 713 P.2d 1329 (Colo.App. 1985); see Nile Valley Federal Savings Loan Ass’n v. Security Title Guarantee Corp., 813 P.2d 849 (Colo.App. 1991). [32] Furthermore, the receipt of inquiry notice charges a party with notice of all facts that a reasonably diligent inquiry would have disclosed Monaghan Farms, Inc. v. City County of Denver, 807 P.2d 9 (Colo. 1991) see Cottonwood Hill, Inc. v. Ansay, 782 P.2d 1207 (Colo.App. 1989). Inquiry notice requires sufficient facts to attract the attention of interested persons and prompt a reasonable person to inquire further Monaghan Farms, Inc. v. City County of Denver, supra. [33] Here, the record reflects that the ordinance adopting the improvement district was recorded with the Clerk and Recorder of El Paso County in July 1985. Further, as noted above, paragraph 7 of the purchase agreement at least put plaintiffs on inquiry notice as to the possibility that the properties were included in an improvement district. 2.
[34] Further, as to negligent misrepresentation, the following elements are necessary to establish a claim:
(1980) (emphasis added). [37] Hence, since there was no allegation here, or evidence presented, that false information was supplied, there can be no negligent misrepresentation. [38] Therefore, summary judgment was proper since plaintiffs have not shown genuine issues of material fact, and defendants Richmond, MDC Realty and MDC Holdings are entitled to judgment as a matter of law.
B.
[39] Plaintiffs further argue that they did not waive their objection to Richmond’s failure to deliver the commitments for title insurance policies prior to closing. We disagree.
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to the conclusion that the right in question will not be insisted upon Pastor v. San Juan School District No. I, 699 P.2d 418 (Colo.App. 1985).
[42] Generally, the issue of a party’s intent is a question of fact and is not an appropriate issue for summary disposition. Wolther v. Schaarschmidt, 738 P.2d 25 (Colo.App. 1986). [43] However, paragraph 21 of the Purchase Agreement clearly states that: [44] “A current commitment for a title insurance policy in an amount equal to the purchase price shall be furnished by Seller, at its expense, to Purchaser at least ten (10) days before the date of closing. Subsequent to closing and delivery of the deed, Seller will cause an Owner’s Title Insurance Policy to be issued and delivered to Purchaser and shall pay the premium thereon.” [45] Thus, plaintiffs had notice of this requirement. Nevertheless, it is uncontested that no plaintiff objected to the failure to receive the commitment prior to closing. Therefore, as a matter of law, plaintiffs waived their right to receive the title insurance policy commitment prior to closing.C.
[46] Further, plaintiffs claim they were damaged because they did not learn of the improvement district until after closing. It is uncontested that plaintiffs did receive a title policy disclosing the existence of the general improvement district within weeks after closing but, as they concede, they neither noticed nor became concerned until they received their tax bills. Further, such a claim in turn rests on their assertions that they had no notice of the district and that defendants failed to provide title commitments before closing. Because such assertions have been rejected, plaintiffs’ damage claims are without merit.
II.
[47] Plaintiffs also assert that the court erred in granting summary judgment in favor of Land Title. We disagree.
A.
[49] Plaintiffs now contend that there is evidence of a breach of contract claim against Land Title. We disagree.
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agency status creates a duty to fulfill the seller’s contractual obligation to provide purchasers with a title commitment prior to closing. See White v. Brock, 41 Colo. App. 156, 584 P.2d 1224 (1978) Roscoe v. U.S. Life Title Insurance Co., 105 N.M. 589, 734 P.2d 1272
(1987) (title insurer had no duty to disclose or notify purchasers of any balloon payment contained in the underlying real estate mortgage assumed by purchasers).
B.
[56] Plaintiffs also contend that there is evidence in the record to support the fraud claim and negligent misrepresentation claim. Essentially, plaintiffs argue that Land Title’s knowledge of the improvement district and failure to disclose this knowledge to them, and the alleged fact that the estimate of taxes provided by Land Title for each closing was substantially below the true amount, support their fraud and negligent misrepresentation claims. We disagree.
1. a.
[57] The record reflects that Land Title did disclose the existence of the improvement district in the title commitments and policies issued. Further, plaintiffs presented no evidence that Land Title had any reason to believe further disclosure was necessary.
b.
[60] Also, the agreements for taxes provided by Land Title clearly made no false representations of a past or present material fact, an element of fraud. Trimble v. City County of Denver, 697 P.2d 716 (Colo. 1985). The agreements stated that they were an estimate of taxes. A mere expression of an opinion as to the happening of a future event is not actionable. Leece v. Griffin, 150 Colo. 132, 371 P.2d 264 (1962).
2.
[62] As to negligent misrepresentation, Land Title’s failure to disclose the existence of the improvement district obviously does not constitute supplying “false information.”
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via our telephone conversation regarding same.”
C.
[65] Plaintiffs also contend that there is evidence of negligence on the part of Land Title. However, as discussed earlier, under the facts presented, Land Title had no duty to disclose the existence of the improvement district at closing.
D.
[67] Land Title contends that plaintiffs’ appeal is frivolous and requests sanctions, an award of attorneys’ fee and costs incurred on appeal, pursuant to C.A.R. 38(d). We deny this request. See Fox v. Division Engineer for Water Division 5, 810 P.2d 644 (Colo. 1991).
III.
[68] Additionally, plaintiffs contend that the court erred in granting summary judgment in favor of defendant Coldwell Banker and the other defendant real estate brokers and agents. Essentially, plaintiffs contend that the brokers owed a duty to disclose to them the fact that the properties were located within a general improvement district and the amount of taxes that would be due because of that fact. We disagree.