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Oxton v. Rudland

Supreme Court of South Dakota

June 14, 2017

2017 S.D. 35D
v.
EUGENE RUDLAND, CATHY RUDLAND, Defendants and Appellees, WIGHT OXTON and MARY JO OXTON, Plaintiffs and Appellants, and TERRANCE J. WOJTANOWICZ, Defendant.

          CONSIDERED ON BRIEFS MAY 30, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE HEIDI LINNGREN Judge

          SHANE M. PULLMAN PHILLIP R. STILES of Costello Porter Hill Heisterkamp Bushnell & Carpenter, LLP Rapid City, South Dakota Attorneys for plaintiffs and appellants.

          MICHAEL C. LOOS of Clayborne, Loos & Sabers, LLP Rapid City, South Dakota and GREGORY G. STROMMEN of Banks, Kappelman & Strommen, Prof. LLC Rapid City, South Dakota Attorneys for defendants and appellees.

          WILBUR, Retired Justice

         [¶1.] The purchasers of a home brought suit against the sellers for fraud and failure to disclose defects. The circuit court dismissed the purchasers' claims on summary judgment. The purchasers appeal. We reverse and remand.

         Background

         [¶2.] In February 2013, Dwight Oxton executed a purchase agreement for a home located at 1017 Gladys Street in Rapid City, South Dakota owned by Eugene and Cathy Rudland. The Rudlands had purchased it for $165, 000 from Todd and Kari Wang just a couple months before-in December 2012 and listed it for sale for $262, 500. When the Rudlands listed the home for sale, they prepared a property disclosure statement. On the disclosure statement, they indicated that they had installed a "new sidewalk slab" and repaired "slight sheetrock cracking." In a handwritten statement in the section for additional comments, the Rudlands noted that they had not lived in the home and were "selling the home as is." The Oxtons received the property disclosure statement and made an offer to purchase the home for $245, 000. They made their offer contingent upon the sale of their home in Florida and set a closing for March 29, 2013. They also made their offer contingent on obtaining a property inspection, which they obtained.

         [¶3.] Real estate agent Terrance J. Wojtanowicz acted as a limited agent for Dwight in this transaction. The Oxtons' home in Florida did not sell by March 29, 2013, but they still wanted to purchase the home. Wojtanowicz advised the parties to enter into a contract for deed.

         [¶4.] On April 12, 2013, Dwight Oxton and the Rudlands entered into a contract for deed for the same property to be purchased at the same price. The contract for deed indicated that Dwight was purchasing the home "as is" and that the parties agreed that neither party made any representations or warranties except those made in the contract for deed. The contract reiterated: "Buyer further acknowledges that he has made an inspection of the property and is fully aware of the environmental condition of the property and further confirms it [sic] is buying the property 'as-is' with no representations or warranties from Sellers regarding the environmental condition of the property." The agreement contained an integration clause, indicating that it constituted the entire agreement between the parties.

         [¶5.] Within a year after moving into the home, the Oxtons began to notice new cracks in the sheetrock throughout the home. The Oxtons later learned from the Wangs that the home had been the subject of a prior lawsuit when the Wangs owned it. The Wangs told the Oxtons that the home suffered significant damage because of major settling and the presence of expansive soil. The Oxtons also learned that Wojtanwicz had acted as an expert for the Wangs in that lawsuit. In his report, Wojtanwicz opined that the home's value if sold "as is" would be between $150, 000 and $155, 000 because of the presence of expansive soil. The Wangs told the Oxtons that they sold the home after the lawsuit settled. The Oxtons learned that Wojtanwicz had acted as the limited agent in the sale of the home from the Wangs to the Rudlands. The Oxtons also learned that the Rudlands had received a property disclosure statement, which indicated that the home had "major settling, " that the "house sold as is, " that expansive soils existed, and that the "[h]ome was part of a lawsuit do [sic] to settling and is being sold as is[.]"

         [¶6.] In July 2014, the Oxtons brought suit against the Rudlands and Wojtanowicz. This appeal concerns only the suit against the Rudlands. The Oxtons claimed that the Rudlands violated SDCL 43-4-38 when they negligently and intentionally failed to disclose defects. They also asserted that the Rudlands fraudulently misrepresented the value of the home by selling it "as is" and fraudulently deceived Dwight by suppressing facts known to the Rudlands related to the property. The Oxtons sought compensatory and punitive damages.

         [¶7.] The Rudlands answered and asserted that any problems with the home were caused by the Oxtons' undertaking of significant landscaping, which they claimed compromised the ability to keep water away from the home's walls and away from the soil beneath the home. The Rudlands also asserted multiple affirmative defenses. The Rudlands counterclaimed against Dwight Oxton for breach of contract based on the alterations he completed to the property, including the landscaping project, and for Dwight's failure to maintain property and liability insurance coverage and name the Rudlands as additional insureds. They claimed that they gave Dwight notice of his defaults under the contract and that Dwight failed to cure the defaults. Because of Dwight's breaches and failures to cure, the Rudlands requested that the circuit court order the Oxtons to vacate the property and award the Rudlands damages, costs, and attorney's fees.

         [¶8.] The Rudlands moved for partial summary judgment. They argued that the unambiguous language of the contract for deed foreclosed the Oxtons' claim that the Rudlands violated SDCL 43-4-38 and the claims that the Rudlands misrepresented any facts or fraudulently concealed any facts. According to the Rudlands, Dwight agreed to buy the home "as is" and agreed that the Rudlands made no representations or warranties other than ...


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