Furman v. Rowe Real Estate

Furman v. Rowe Real Estate  (97-190); 168 Vt. 597; 715 A.2d 1290

[Filed 27-Jul-1998]



                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-190

                               MAY TERM, 1998


Bruce and Tammy Furman	        }	APPEALED FROM:
                           	}
                        	}
     v.	                        }	Addison Superior Court
                            	}	
Rowe Real Estate and Fred Rowe	}
                            	}	DOCKET NO. 121-7-95 Ancv	


       In the above-entitled cause, the Clerk will enter:

       A jury found defendants liable for negligent misrepresentation, but
  not common law or consumer fraud, with respect to a real estate
  transaction.  Plaintiffs claim the trial court erred by (1) denying their
  motion for partial summary judgment (2) excluding relevant, nonhearsay
  evidence, (3) admitting hearsay evidence, and (4) improperly instructing
  the jury.  We affirm.

       This case concerns a real estate transaction involving a house with a
  very strong dog odor.  Plaintiffs are Bruce and Tammy Furman (buyers). 
  Defendants are a real estate agency, Rowe Real Estate, and a
  Realtor/co-owner of said agency, Fred Rowe (Realtor).  The subject property
  is a residence in Brandon, Vermont which, prior to the present disputed
  transaction, was owned by Mr. and Mrs. Muthersbaugh (sellers).  Realtor had
  an exclusive listing agreement with sellers to assist in the sale of their
  home.

       In the Fall of 1993, buyers, who were then living in California,
  telephoned Realtor and conveyed their desire to move to Vermont.  In
  response, Realtor sent buyers listing information on several houses. 
  Buyers expressed particular interest in sellers' home and had numerous
  conversations with Realtor regarding this property.  Although the parties
  offered conflicting testimony, it was undisputed that Realtor informed
  buyers, at a minimum, that the house had a "dog smell."  

       Buyers did not travel to Vermont to inspect the subject property. 
  Instead, they negotiated a contract over the telephone.  In November 1993,
  the contract was signed and returned to Realtor along with a $17,000 check
  made payable to sellers, which was cashed shortly thereafter.  Paragraph #7
  of the contract stated, "Contract Deposit to be held by: See #10." 
  Paragraph #10 of the contract stated:

     Buyer to pay $17,000.00 to seller for a one year option to
     purchase home.  This deposit is non-refundable.  This $17,000.00 
     deposit shall be credited toward the purchase price.

       On December 10, 1993, buyers arrived in Vermont and went to Realtor's
  office to obtain a key to the house.  Realtor gave buyers the key as well
  as a can of air-freshener.  Buyers drove to the house and upon entry,
  encountered the strong smell of dog urine.  Buyers immediately complained
  to Realtor and demanded their money back.  Ultimately, sellers contracted
  and paid for remediation work, including professional cleaning and
  installation of new carpeting and linoleum floors.  Meanwhile, buyers
  stayed in a motel and sellers abated their entire first month's rent.  A
  few weeks later, when the remediation work was complete, buyers moved into 

  

  the house. 

       Buyers remained in the house without incident or complaint for eleven
  months.  The deadline for buyers' right to exercise their option to
  purchase the house was December 10, 1994.  When that date approached,
  buyers applied for financing with the First Brandon National Bank.  The
  bank, however, rejected their application due to buyers' poor credit
  history.

       After their financing application was rejected, and shortly before the
  purchase option deadline was to expire, buyers informed sellers and Realtor
  that the house was "uninhabitable" and that they would not go through with
  the closing.

       Buyers vacated the property in December 1994.  Immediately thereafter,
  the sellers put the house back on the market and, in less than one month,
  another buyer had signed a purchase and sale contract on the property.  The
  second buyer, a local building contractor, testified that at no time did he
  smell any pet odor in the house.  In May of 1995, the house was sold to its
  current owner, who never detected an animal odor in the house.

       In June 1995, buyers filed suit against defendants for negligent
  misrepresentation and consumer fraud, alleging that, despite subsequent
  remediation efforts, the house was "uninhabitable."  In December 1996,
  buyers filed a motion for summary judgment claiming that Realtor (1)
  improperly directed them to make their $17,000 purchase option check
  payable to sellers, (2) wrongfully represented to them that the purchase
  option monies were "non-refundable," and (3) violated applicable law by not
  placing the monies in an escrow account until closing.  The trial court
  denied buyers' motion for summary judgment.

       After a three-day trial, a jury found that Realtor had made a
  negligent misrepresentation to buyers, but that buyers had suffered no
  damages and that, in any event, buyers' own negligence was 85% compared to
  only 15% on defendants' part.  The jury found defendants not liable for
  common law fraud or consumer fraud.  The trial court entered judgment for
  defendants and subsequently denied buyers' motion for a new trial.  This
  appeal followed. 

       We do not find it necessary to reach the merits of buyers' claims of
  error because buyers have failed to prove that they suffered any damages. 
  Special interrogatories were submitted to the jury to determine liability
  and damages, if any.  The jury found that defendants were liable for
  negligent misrepresentation but rendered a verdict in favor of defendants
  because buyers were more negligent than defendants in failing to inspect
  the subject property prior to signing the contract.  The jury also
  determined that buyers failed to prove damages.  With regard to damages,
  buyers contend on appeal that the jury never actually considered the issue
  of damages because the jury found that buyers were 85% liable whereas
  defendants were only 15% liable, and, consequently, buyers could not have
  recovered at all under a comparative theory of negligence.  We disagree.

       As we have explained previously, the use of special interrogatories is
  encouraged "where a case is complex because of multiple overlapping
  theories of liability."  Hartnett v. Union Mut. Fire Ins. Co., 153 Vt. 152,
  158, 569 A.2d 486, 489-90 (1989).  Moreover, "[w]e similarly encourage use
  of special interrogatories in cases like this to avoid a need for complete
  retrial where a case involves a single, severable issue to be resolved
  ultimately on appeal."  Id., 569 A.2d  at 490.  Use of the special-verdict
  form in this case reflects these policies.  

       At trial, buyers asserted three theories of liability:  negligent
  misrepresentation, consumer fraud, and common law fraud.  Accordingly, the
  first three interrogatories address defendants' 

  

  liability under these three theories.  The next three interrogatories
  relate to damages proven by buyers under each theory of liability.  The
  jury found that no damages were proven.  It was not until after the jury
  assessed damages that they were then instructed to determine buyers' own
  negligence (interrogatory seven) and then compare the respective negligence
  of buyers and defendants (interrogatory eight).

       Thus, we conclude that, given the purpose of the special-verdict form
  generally, coupled with the structure and order of the interrogatories
  submitted here, confirms that the jury's assessment of damages was prior to
  and distinct from consideration of whether buyers were entitled to recover
  under a comparative theory of negligence.

       Our interpretation of the special interrogatories here is further
  corroborated by a review of the record.  Buyers were given the opportunity
  to develop evidence regarding damages in the proceedings below; however,
  evidence of damages allegedly suffered is virtually non-existent.  The
  undisputed facts are that, even if the house was permeated by an
  overwhelming odor of dog urine at the time buyers first arrived from
  California, sellers subsequently contracted and paid for extensive
  remediation work and abated the first month's rent.  Buyers then moved into
  the house, lived there for nearly eleven months without complaint, and
  ultimately applied for financing with the objective of purchasing the
  subject property.

       In light of these facts, the jury's finding of no damages is entirely
  reasonable.  If there was any doubt about the plain meaning of the
  interrogatories and answers, buyers failed to seek clarification at the
  time of the jury's verdict and cannot be heard to complain on appeal.  See
  Silva v. Stevens, 156 Vt. 94, 109-10, 589 A.2d 852, 861 (1991).

       Affirmed.

	BY THE COURT:


	_______________________________________
	Jeffrey L. Amestoy, Chief Justice

	_______________________________________
	John A. Dooley, Associate Justice

	_______________________________________
	James L. Morse, Associate Justice

	_______________________________________
	Denise R. Johnson, Associate Justice
	
	_______________________________________
	Marilyn S. Skoglund, Associate Justice