Mitchell v. Harrington Trucking

----ooOoo----

Dorann Mitchell,
Plaintiff and Appellant,

v.

Jesse Christensen
and Betty Christensen,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990321-CA

F I L E D
June 8, 2000
  2000 UT App 170 -----

Third District, Salt Lake Department
The Honorable Dennis M. Fuchs

Attorneys:
Scott B. Mitchell, Salt Lake City, for Appellant
George E. Harris Jr. and Jennifer Ward, Salt Lake City, for Appellees

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Before Judges Jackson, Bench, and Davis.

DAVIS, Judge:

Plaintiff Dorann Mitchell appeals the trial court's grant of summary judgment in defendants' favor. "'Because a summary judgment presents questions of law, we review the trial court's ruling for correctness.'" Carter v. Milford Valley Mem'l Hosp., 2000 UT App 21,¶12, 996 P.2d 1076 (citation omitted).

Plaintiff asserts defendants are guilty of fraudulent nondisclosure, arguing that because defendants knew of the leak in the swimming pool, they had a duty to disclose this fact to her. To succeed on a claim of fraudulent nondisclosure, the party asserting the claim must show that "the nondisclosed information [is] material, known to the party failing to disclose, and [that] there [is] a legal duty to communicate." Maack v. Resource Design & Constr., Inc., 875 P.2d 570, 578 (Utah Ct. App. 1994). "[T]he duty to disclose in a vendor-vendee transaction exists only where a defect is not discoverable by reasonable care." Id. at 579.

Plaintiff concedes that "[a]n in-depth review of the pool would have revealed the leaks." Notwithstanding, plaintiff argues that she acted reasonably by personally inspecting the pool with her husband, and by having a professional home inspection done. However, neither plaintiff nor her husband claim to have the skill necessary to identify potential problems with a swimming pool. Furthermore, the home inspection company specifically limited its inspection of the swimming pool to the "above ground or visible items only" and cautioned that its inspection of the pool was "limited in scope."

Thus, we cannot say that plaintiff's failure to have an in-depth inspection of the swimming pool was reasonable. The fact that plaintiff was sufficiently knowledgeable in the process of buying a home to have a detailed home inspection completed and the fact that she concedes that an in-depth inspection of the swimming pool would have revealed the defects "further highlights the unreasonable nature of [plaintiff's] actions in not obtaining an inspection, or insisting on express rights in the [purchase contract]." Id. (footnote omitted); see also id. at 579 n.8 (stating that factual issue of whether defects would have been discoverable by home inspection was resolved by plaintiffs' concession in appellate brief that inspection would have revealed defects). Therefore, because plaintiff failed to exercise reasonable care when she did not have an in-depth inspection of the swimming pool completed, the trial court correctly granted summary judgment on this issue. See id. at 578 (stating that issue of whether there was legal duty to communicate is question of law).

Plaintiff suggests that defendants fraudulently concealed the leak in the pool by keeping it full of water during plaintiff's inspection of the premises. Fraudulent concealment is defined as follows: "One party to a transaction who by concealment or other action intentionally prevents the other from acquiring material information is subject to the same liability to the other, for pecuniary loss as though he had stated the nonexistence of the matter the other was thus prevented from discovering." Id. (citation omitted).

In fraudulent concealment cases, summary judgment [is] appropriate only if (i) "the facts are so clear that reasonable persons could not disagree about the underlying facts or about the application of the governing legal standard to the facts or" (ii) "the facts underlying the allegation of fraudulent concealment are so tenuous, vague, or insufficiently established that they fail to raise a genuine issue of material fact as to concealment." Aurora Credit Servs., Inc. v. Liberty West Dev., Inc., 970 P.2d 1273, 1279 (Utah 1998) (citation omitted).

Here, plaintiff's only allegation purportedly supporting a claim of fraudulent concealment is that defendants kept their swimming pool full of water. Considering that the majority of swimming pool owners do just that, and the absence of water would seem the most effective way to disguise a leak, this assertion does not raise a genuine issue of material fact as to whether defendants did so to fraudulently conceal the leak. Accordingly, plaintiff's fraudulent concealment claim fails.

The trial court's grant of summary judgment in favor of defendants is affirmed.
 
 
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 
 

______________________________
Russell W. Bench, Judge