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Hardy v. Flood

United States District Court, D. Colorado

February 26, 2019

MERVIN J. FLOOD, and SUSAN S. FLOOD, Defendants.



         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.)


         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 ...

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