United States District Court, D. Colorado
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Defendants Mervin Flood and
Susan Flood's Motion for Summary Judgment (Doc. #108),
wherein Defendants argue that Plaintiffs Steven Hardy and
Jody Whitson-Hardy did not initiate this action within the
applicable statutes of limitation and, alternatively, that
Plaintiffs lack sufficient evidence to establish elements of
their three causes of action. (Doc. # 108 at 5-6.) Defendants
therefore request that this Court summarily dismiss
Plaintiffs' claims against them. Because genuine issues
of material fact govern this dispute, the Court denies
Defendants' Motion for Summary Judgment.
I.
BACKGROUND
The
Court's previous Order (Doc. # 64), United States
Magistrate Judge Michael Watanabe's Recommendation (Doc.
# 62), and United States Magistrate Judge N. Reid
Neureiter's Recommendation (Doc. # 107) provide detailed
recitations of the factual background of this case and are
incorporated herein. The Court details the factual background
and procedural history of this case only to the extent
necessary to address Defendants' Motion for Summary
Judgment.
The
action arises from Plaintiffs' purchase of a residential
property and its improvements (e.g., a barn, a road arch) in
Franktown, Colorado, from Defendants in June 2013, pursuant
to a Contract to Buy and Sell Real Estate (the
“Purchase Agreement”). (Doc. # 66.) Plaintiffs
allege that Defendants were obligated to but did not disclose
several latent defects of which Defendants were aware before
the parties executed the Purchase Agreement. (Id. at
7-8.) They further claim that “Defendants' failure
to disclose, and their affirmative misrepresentations in the
sale disclosures” have caused Plaintiffs to sustain
damages, including “property damage, diminished value
of the Property, costs of repairs, loss of improvements,
increased tax liabilities, costs of relocation and temporary
living and storage space, loss of use . . . of the Property,
and wrongful eviction and invasion of rights to private
occupancy.” (Id. at 8.) Plaintiffs initiated
this action on December 28, 2016, and assert three claims for
relief against Defendants: (1) breach of contract; (2) fraud;
and (3) negligent misrepresentation. (Doc. # 3 at 4-7; Doc. #
66.) Plaintiffs also claim that “Defendants'
conduct . . . was attended by circumstances of fraud, malice,
and/or willful and wanton conduct” and therefore ask
for punitive and exemplary damages, in addition to
“actual, compensatory, consequential, and incidental
damages.” (Doc. # 66 at 11.)
Defendants
moved to dismiss Plaintiffs' Second Amended Complaint
(Doc. # 66) on April 12, 2018. (Doc. # 78.) They argued that
“[t]he Court should dismiss this action for five
independent reasons.” (Id. at 2.) Relevant to
the Motion for Summary Judgment are Defendants' first,
second, and fourth arguments:
First, Plaintiffs failed to commence this Action within the
three-year limitation period applicable to all three claims.
Second, Plaintiffs cannot, as a matter of law, satisfy the
justifiable reliance element for any claim of, or rooted in,
fraud or negligent misrepresentation. . . . Fourth,
Defendants' representation that there was no known water
damage or moisture problem at the Property was accurate and
therefore cannot support any allegation of, or rooted in,
fraud, and Plaintiffs have not pled facts sufficient to
establish Defendants had actual knowledge of any water
problems at the Property.
(Id. at 2-3.) Magistrate Judge Neureiter rejected
each of these arguments and recommended that the Court deny
Defendants' Motion to Dismiss. (Doc. # 107.)
Neither
party objected to the Recommendation, and the Court affirmed
and adopted it and denied Defendants' Motion to Dismiss
on November 15, 2018. (Doc. # 112.)
On
November 7, 2018, Defendants filed the Motion for Summary
Judgment presently before the Court. (Doc. # 108.) Plaintiffs
responded in opposition to summary judgment on December 14,
2018 (Doc. # 119), to which Defendants replied on January 4,
2019 (Doc. # 123).
A
five-day jury trial of this matter is set to begin on May 20,
2019. (Doc. # 129.)
II.
LEGAL STANDARD
Summary
judgment is warranted when the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Turnkey Sols.
Corp. v. Hewlett Packard Enter. Co., No.
15-cv-01541-CMA-CBS, 2017 WL 3425140, at *2 (D. Colo. Aug. 9,
2017). A fact is “material” if it is essential to
the proper disposition of the claim under the relevant
substantive law. Id. A dispute is
“genuine” if the evidence is such that it might
lead a reasonable jury to return a verdict for the nonmoving
party. Id. In reviewing motions for summary
judgment, a court must view the evidence in the light most
favorable to the non-moving party. Id. However,
conclusory statements based merely on conjecture,
speculation, or subjective belief do not constitute competent
summary judgment evidence. Bones v. Honeywell Int'l,
Inc., 366 F.3d 869, 875 (10th Cir. 2004).
The
moving party bears the initial burden of demonstrating the
absence of a genuine dispute of material fact and entitlement
to judgment as a matter of law. Id. In attempting to
meet this standard, a movant who does not bear the ultimate
burden of persuasion at trial does not need to disprove the
other party's claim; rather, the movant need simply point
out to the Court a lack of evidence for the other party on an
essential element of that party's claim. Adler ...