United States District Court, D. Colorado
ORDER GRANTING DEFENDANTS' MOTION IN
CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants Mervin J. Flood and
Susan S. Flood's Motion in Limine (Doc. # 136).
For the following reasons, the Court grants Defendants'
Motion in Limine.
Court's previous Orders (Doc. # 131; 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 procedural history
and factual background of this case only to the extent
necessary to address Defendants' Motion in
action arises from Plaintiffs' purchase of a residential
property and its improvements 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.) Plaintiffs assert that, among these alleged latent
defects, was the fact that “the basement was finished
without the required building permit[.]” (Doc. ## 142
at 12, 66 at ¶ 34.) They further claim that
“Defendants' failure to disclose, and their
affirmative misrepresentations in the sale disclosures”
have caused Plaintiffs to sustain damages. (Doc. # 66 at 8.)
On December 28, 2016, Plaintiffs initiated this action and
asserted three claims for relief against Defendants: (1)
breach of contract; (2) fraud; and (3) negligent
misrepresentation. (Doc. # 3 at 4-7; Doc. # 66.) However, on
May 15, 2019, Plaintiffs stipulated to the dismissal of their
negligent misrepresentation claim (Doc. # 151) and the Court
dismissed that claim with prejudice (Doc. # 153).
February 26, 2019, the Court denied summary judgment on all
of Plaintiffs' claims and Defendants' statute of
limitations defense. (Doc. # 131 at 12.) On April 24, 2019,
Defendants filed their Motion in Limine and raised
four distinct motions in limine before the Court.
(Doc. # 136.) On May 10, 2019, Defendants' Fourth Motion
in Limine was granted and the trial was vacated.
(Doc. # 150.) The Court considers Defendants' remaining
motions in limine in turn.
DEFENDANTS' MOTION IN LIMINE NO. 1
Defendants' first motion in limine, they seek a
determination of law that Defendants did not have a duty to
disclose the fact that Defendants failed to acquire a
building permit for the basement that they finished because
the building permit status is not a latent defect. (Doc. #
136 at 1-2.) Defendants first argue that, under Colorado law,
failure to obtain a permit for a basement is not a latent
defect because it does not involve a “physical
defect” to the property. (Id. at 2 (emphasis
in original).) Defendants' second contention provides
that, as a matter of law, the failure to obtain a permit was
not “latent” because the unpermitted status of
the basement was “discoverable through reasonable
inspection, ” and, in particular, available on the
“Douglas County Assessor's Office Parcel Search
website.” (Id. at 4-5.) As such, Defendants
assert that the Court should rule, as a matter of law, that
Defendants had no duty to disclose that the basement was
unpermitted and that such a fact cannot support
Plaintiffs' fraudulent concealment claim. (Id.
respond by arguing that Defendants' first motion in
limine is a rehash of their previously rejected
arguments from several motions to dismiss (Doc. ## 26, 35,
78) and their Motion for Summary Judgment (Doc. # 108). (Doc.
# 142 at 2-3.) Moreover, relying on nonbinding precedent,
Plaintiffs contend that Defendants' first motion in
limine is an improper and belated dispositive motion.
(Id. at 1-2.) To the extent that the Court considers
Defendants' first motion in limine, Plaintiffs
reincorporate their arguments in opposition to
Defendants' multiple motions to dismiss (Doc. ## 37, 87)
and Motion for Summary Judgment (Doc # 119). (Id. at
Whether Defendants' First Motion in Limine is
threshold issue, the Court rejects Plaintiffs' argument
that Defendants' first motion in limine is
improper. (Doc. # 142 at 1-3.) “A motion
in limine is a request for guidance by the court
regarding an evidentiary question, which the court may
provide at its discretion to aide the parties in formulating
trial strategy.” Edens v. The Netherlands Ins.
Co., 834 F.3d 1116, 1130 (10th Cir. 2016) (quoting
Jones v. Stotts, 59 F.3d 143, 146 (10th Cir. 1995)).
“The purpose of a motion in limine is to aid the trial
process by enabling the Court ‘to rule in advance of
trial on the relevance of certain forecasted evidence, as to
issues that are definitely set for trial, without lengthy
argument at, or interruption of, the trial.”
Mendelsohn v. Sprint/United Mgmt. Co., 587 F.Supp.2d
1201, 1208 (D. Kan. 2008) (internal quotations omitted).
“Pretrial rulings often may save time at trial, as well
as save the parties time, effort and cost in preparing their
cases.” Id. (citing United States v.
Cline, 188 F.Supp.2d 1287, 1291 (D. Kan. 2002)).
assert that the jury should determine, as a question of fact,
whether Defendants' lack of building permit was a latent
defect. (Doc. # 87 at 18-19.) However, Plaintiffs cite no
authority in support of their argument. Whereas, Colorado
precedent holds that, in a latent defect nondisclosure case,
whether a duty to disclose exists is a question of law.
Burman v. Richmond Homes Ltd., 821 P.2d 913, 918
Court disagrees with Plaintiffs' argument that this first
motion in limine is simply an improper rehash of
Defendant's Motion for Summary Judgment. In their Motion
for Summary Judgment, Defendants argued that Plaintiffs could
not prove the reasonable reliance element of their fraud
claim. (Doc. # 131 at 10-12.) The Court denied the Motion for
Summary Judgment because it determined that there were
disputed issues of fact related to reasonable reliance and
Colorado law clearly established that “[w]hether [a
buyer] justifiably relied on [an] alleged misrepresentation
[is] a question of fact” to be determined by the
factfinder unless reasonable minds could not differ.
(Id. at 11) (quoting Loveland Essential Grp.,
LLC v. Grommon Farms, Inc., 251 P.3d 1109, 1116-17
(Colo.App. 2010)).) The instant motion in ...