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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Deptula v. Simpson (07/27/2007) sp-6142
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| CHESTER P. DEPTULA, Jr. and | ) |
| CAROL A. DEPTULA, | ) |
| husband and wife, | ) |
| ) Supreme Court No. S- 11948 | |
| Appellants, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-04-4765 CI |
| ) | |
| BETH SIMPSON, individually; | ) O P I N I O N |
| DYNAMIC PROPERTIES, a business | ) |
| entity; THE ESTATE OF IDA M. | ) |
| JOHNSON; GLORIA WILLIAMS, | ) |
| individually and as personal | ) |
| representative of the Estate of Ida M. | ) |
| Johnson, | ) |
| Appellees. | ) No. 6142 - July 27, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, William F. Morse, Judge.
Appearances: Laurel J. Peterson, Law Offices
of Laurel J. Peterson, Anchorage, for
Appellants. Erin B. Marston and Colleen J.
Moore, Marston & Cole, P.C., Anchorage, for
Appellees The Estate of Ida M. Johnson and
Gloria Williams, Personal Representative.
Brewster H. Jamieson and Andrea E. Girolamo-
Welp, Lane Powell LLC, Anchorage, for
Appellees Beth Simpson and Dynamic
Properties.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
This case involves a dispute arising out of a home
sale. Before purchasing the house, the buyers waived their right
to receive statutory disclosures about the house. Shortly after
moving in, the buyers learned that the previous owner had died
and partially decomposed in the house and that this decomposition
had caused damage to the kitchen subfloor. The buyers brought
suit against the seller and her listing agent, alleging breach of
a duty to disclose the fact that the previous owner had died and
decomposed in the house. The superior court dismissed the claims
against the seller on summary judgment, holding that the seller
had no duty to disclose. Because we agree with the superior
court that the buyers waived their statutory right to disclosure,
and because the seller made no misrepresentations that triggered
a common law duty to disclose, we affirm the superior courts
grant of summary judgment. We need not address whether the
listing agent owed the buyers a duty of disclosure because we
conclude that the listing agent is not properly before this court
on appeal.
II. FACTS AND PROCEEDINGS
A. Facts
Ida Mae Johnson owned a home at 1800 Bannister Drive in
Anchorage (the Bannister house). In April 2003 police discovered
Ms. Johnsons body in the kitchen of the home. Ms. Johnson had
died of a heart attack approximately one month before her body
was discovered, and during that time her body had partially
decomposed. It was later learned that fluids released during
decomposition caused structural damage to the kitchen subfloor.
Ms. Johnson had two daughters, Gloria Williams and
Veronica Johnson, both of whom lived outside Alaska at the time
of Ms. Johnsons death. Williams took charge in dealing with her
mothers affairs. Williams learned from a police officer that her
mothers body had been decomposing when it was discovered and that
clean-up at the Bannister house was needed. Family friends
cleaned the Bannister house after Ms. Johnsons body had been
removed and before Williams returned to Anchorage for her mothers
funeral. The friends did not describe what they had seen in the
kitchen to Williams and nothing in the record suggests that
Williams knew that the decomposition of her mothers body had
caused structural damage to the kitchen subfloor.
Williams was appointed the Personal Representative of
her mothers estate. In her capacity as personal representative,
Williams hired real estate broker Dynamic Properties and its
agent Beth Simpson (collectively Simpson) to assist with the
listing and sale of the Bannister house. Although Williams
informed Simpson that her mother had died of a heart attack
inside the house, she did not tell her the details surrounding
her mothers death and Simpson did not inquire further. Nothing
in the record suggests that Simpson knew that events connected to
Ms. Johnsons death had caused structural damage to the Bannister
house.
The Deptulas, through their buying agent Dall Realty,1
expressed interest in the Bannister house and negotiated with
Simpson about the price and terms of the sale. Although the
Deptulas understood that the house was being sold by Ms. Johnsons
estate, they did not inquire about the circumstances of Ms.
Johnsons death. The Deptulas viewed the Bannister home two
times, including a walk-through with a professional inspector,
before agreeing to the terms of a sale. At no point during
negotiations did the Deptulas have direct contact with Williams.
When Williams and the Deptulas, acting through their
agents, agreed on the terms of the sale, they executed an Earnest
Money Agreement that included an as is clause.2 Williams and the
Deptulas also executed a Waiver By Agreement form that released
the Estate, as the seller of the residence, from its obligation
to make statutorily mandated disclosures about the house.
Because of the waiver, Williams did not fill out a disclosure
statement documenting the condition of the Bannister house.
Shortly after moving into the Bannister house, the
Deptulas investigated a suspicious stain under the kitchen stove
and discovered blood and urine. They later removed tiles from
the kitchen floor and discovered that blood and other fluids had
saturated and damaged the subfloor.
B. Proceedings
The Deptulas sued Williams in both her individual
capacity and as personal representative of her mothers estate
and Simpson in February 2004. The Estate filed for summary
judgment in October 2004. The Deptulas responded with a cross-
motion for partial summary judgment against the Estate, which
both the Estate and Simpson opposed. The superior court
determined that the Deptulas were unable to establish the source
of any duty to disclose: The Deptulas had waived their right to
receive statutory disclosures about the Bannister house and the
Deptulas could not point to any misleading statements or special
relationships that created a common law duty to disclose.
Accordingly, the superior court granted the Estates motion for
summary judgment and denied the Deptulas motion.
In its decision, the superior court used broad language
that appeared to grant summary judgment to Simpson on the
Deptulas claims against Simpson, even though Simpson had not
moved for summary judgment.3 The Deptulas subsequently requested
final judgment (against themselves) under Alaska Civil Rule 54(b)
covering all of their claims against all defendants. Simpson
filed a non-opposition. The court then granted a Rule 54(b)
final judgment to the Estate only and made clear that the Court
has not entered summary judgment against the other defendants
[i.e., Simpson]. The Deptulas moved for reconsideration,
suggesting that Simpsons non-opposition to the Deptulas request
for final judgment justified granting final judgment as to
Simpson. Upon reconsideration, the superior court issued a
judgment that dismissed the Deptulas causes of action against
Simpson and stated that the judgment disposes of the causes of
action against all remaining defendants.
The Deptulas appeal.
III. STANDARD OF REVIEW
We review a superior courts grant of summary judgment
de novo to determine whether any genuine issues of material fact
exist and whether the moving party is entitled to judgment as a
matter of law.4 Whether a party has a duty of care and, if so,
the nature and scope of that duty are questions of law that we
also review de novo.5
IV. DISCUSSION
A. Simpson Is Not Properly Before this Court on Appeal.
The Deptulas and Simpson dispute the legal significance
of the superior courts dismissal of the claims against Simpson.
The Deptulas argue that the order is an appealable final judgment
that encompasses their claims against Simpson. Simpson responds
that the order describes an unappealable voluntary dismissal. We
agree with Simpson.
Our appellate jurisdiction is limited. Alaska Rule of
Appellate Procedure 202(a) requires a final judgment before we
may exercise appellate review of a case filed in the superior
court. Where less than all claims in a given case have been
resolved, Alaska Civil Rule 54(b) provides a mechanism by which
the superior court may direct the entry of final judgment as to
one or more but fewer than all of the claims or parties . . . .
Where a Rule 54(b) final judgment has been granted, a party may
appeal those claims covered by the judgment while pursuing its
remaining claims in the superior court.6 Where, however, a case
is dismissed voluntarily, no appeal may be taken.7 This is so
because voluntarily dismissal, when approved by the court, is
considered a consent judgment, which is generally not subject to
appellate review.8
We conclude that the Deptulas failed to obtain an
appealable final judgment covering their claims against Simpson
because their motion practice resulted in the voluntarily
dismissal of those claims. Although the superior court could
have worded its original order granting summary judgment to the
Estate more narrowly, the court explained in a subsequent order
that its use of broad language in the summary judgment order did
not address the merits of the Deptulas claims against Simpson.
The record makes clear that the Deptulas claims against Simpson
were not briefed by the parties and were not ruled on by the
superior court. Neither Simpsons filing of a non-opposition nor
Simpsons request for attorney fees under Alaska Civil Rule 68
required the court to adjudicate the claims against her.9 When
the Deptulas requested that the superior court issue a Rule 54(b)
final judgment covering their unadjudicated claims against
Simpson, the Deptulas in effect requested voluntary dismissal of
those claims.
Because the Rule 54(b) final judgment voluntarily
dismissed the Deptulas unadjudicated claims against Simpson, the
Deptulas claims against Simpson are not properly before this
court.10
B. The Deptulas Claims Against the Estate Are Precluded
Because the Deptulas Waived Their Right to Disclosure.
The Deptulas argue that the superior court erred in
concluding that the Estate did not owe them a duty to disclose
the fact that Ms. Johnson died in the Bannister house. The
Estate responds that the Deptulas waived any right to disclosure.
We agree with the Estate.
Alaska Statutes 34.70.010-.200 govern disclosures in
residential real property transfers. Under Chapter 70 a party
selling residential real property is required to complete a
disclosure form in good faith and deliver it to potential buyers.11
The written disclosure statement requires disclosure on
conditions ranging from Roof or Other Leakage to Average Annual
Utility Costs to Soil Stability.12
A buyer can choose to waive his or her right to receive
the written disclosure statement from the seller. Under AS
34.70.110, the disclosure requirement does not apply to the
transfer of an interest in residential real property if the
transferor and transferee agree in writing that the transfer will
not be covered under this chapter. To facilitate such waivers,
the disclosure form includes a page entitled Waiver By Agreement.
This page succinctly states the purpose for which it may be used:
If both parties agree to waive the requirement to complete this
disclosure statement, please sign below.
To be enforceable, a waiver must meet certain
requirements. The waiver must be knowing and voluntary.13
Although statutorily created rights can generally be waived,
parties may not waive statutory rights [where] a question of
public policy is involved, or where rights of third parties,
which the statute was intended to protect, are involved.14
The record here shows that the Deptulas waiver of
statutory disclosure was valid and enforceable. The Deptulas own
statements show that they understood they could walk away from
the transaction if they were unwilling to waive their right to
receive disclosure. Chester Deptula stated that he understood
the legal effect of the waiver, namely that he would not be
receiving disclosures about the condition of the Bannister house.
The waiver form stated in unambiguous language that signatures by
both parties would obviate the need to complete the form.15
Further, public policy was not contravened by giving effect to
the Deptulas waiver. Both the legislature and the Real Estate
Commission have voiced their approval of the use of waivers of
statutory disclosure.16 Indeed, Williamss own circumstances
illustrate how waivers can promote alienability by allowing a
party who may be incapable of warranting the condition of a home
to avoid having to complete the disclosure form. Finally, third
party rights are not affected because the terms of the real
estate disclosure statutes protect only the purchaser, not the
public at large.
The Deptulas arguments for invalidating the waiver were
not preserved in the superior court and in any event are
unpersuasive. The Deptulas argue mutual mistake of fact, but
they failed to raise this argument below. Accordingly, it is
waived.17 The Deptulas next rely on AS 34.70.060, which requires
that disclosures be made in good faith. But this statute applies
only to a person who makes a disclosure . . . under this chapter.
Because the Estate did not make any disclosures, AS 34.70.060 is
inapplicable.
In sum, the Deptulas waiver of their right to receive
statutory disclosures about the Bannister house was valid.18
Because the Deptulas waived their right to statutory disclosure,
their statutory claims against the Estate are precluded.
C. The Estate Did Not Owe the Deptulas a Common Law Duty
of Disclosure.
Relying on provisions of the Restatement (Second) of
Torts (1977), the Deptulas argue that the Estate owed them a
common law duty to disclose because the Estate made partial or
misleading statements. This argument is unavailing.
The Restatement (Second) of Torts 551 recognizes two
situations pertinent to this case in which a duty to disclose
material facts may arise: (1) where one party has made partial or
misleading statements, and (2) where one party has a special
relationship with the other party.19
The provision governing partial or ambiguous statements
recognizes a duty on the part of one making such statements to
disclose matters known to him that he knows to be necessary to
prevent his partial or ambiguous statement of the facts from
being misleading.20 This provision does not create a duty to
disclose here because the record does not show that the Estate
made any partial or ambiguous statements that were material to
the transaction.21 The Deptulas realtor, Dall Realty, informed
them that Williams did not feel comfortable filling out the
disclosure statement because she did not live in the Bannister
house. Assuming that Williams (or Simpsons, Williamss agent)
made that statement to Dall, Williamss statement did not create a
duty to disclose because it was not misleading. Williams had not
lived in the house since 1985 and had not visited her mother
there since 1999. The time that Williams spent in the house
after her mothers death clearing it out and preparing it for
closing cannot reasonably be considered living in the house.
Moreover, the Deptulas have not submitted any evidence
to establish that Gloria Williamss statement was misleading
because it was incomplete or pretextual. She testified
repeatedly that she was unaware of the extent of the clean-up
that occurred.22 There was no contradictory evidence offered by
the Deptulas. Finally, there was significant circumstantial
evidence that supported Williamss testimony: Before agreeing to
terms with the Estate, the Deptulas viewed the home on two
occasions and walked through the premises with an engineer who
had been hired to inspect the house. That these inspections
revealed no problems only supports Gloria Williamss testimony
that she was unaware of any problems caused by her mothers death
in the house.
The Deptulas rely on a second section of the
Restatement 551(2)(e) which recognizes a duty to disclose
facts that are basic to the transaction when a party occupies a
special relationship with the other such that disclosure can
reasonably be expected.23 This section is likewise inapplicable
here. Not only were both the Deptulas and the Estate represented
by real estate professionals in an arms-length commercial
transaction, but the contract also contained an as-is clause.
Under these circumstances the parties clearly did not enjoy a
special relationship. Accordingly, the Estate had no obligation
to disclose the circumstances of Ms. Johnsons death.
Because the Deptulas fail to establish that the Estate
made any partial or misleading statements, or that they had a
special relationship with the Estate, the Deptulas cannot
establish that the Estate owed them a common law duty to
disclose.
V. CONCLUSION
Because the Deptulas cannot show that the Estate owed
them any duty of disclosure, their claims must fail. The
judgment of the superior court is AFFIRMED.
_______________________________
1 The Deptulas settled their claims against Dall Realty
and therefore Dall is not a party to this appeal.
2 The clause reads: The Buyer understands that this
property is being sold in its present (as is) condition and no
further repairs will be considered except as allowed in paragraph
5 of this addendum.
3 When the superior court granted the Estates motion for
summary judgment, which Simpson had not joined, the courts order
discussed not only whether the Estate owed the Deptulas a duty of
disclosure, but also whether Simpson owed such a duty. The
courts opinion concluded, Neither the estate, Williams, Simpson
nor Dynamic Properties owed the Deptulas a statutory or common
law duty of care that required them to disclose the information
they did not disclose. This sentence led to some confusion about
the status of claims against Simpson.
4 Bryson v. Banner Health Sys., 89 P.3d 800, 803 n.4
(Alaska 2004).
5 Id.
6 Alaska R. Civ. P. 54(b)
7 See Legge v. Greig, 880 P.2d 606, 607-08 (Alaska 1994)
(holding that acquiescing in dismissal with prejudice waives
right to appeal).
8 See Harolds Trucking v. Kelsey, 584 P.2d 1128, 1130 n.3
(Alaska 1978) (citing Gravel v. Alaskan Village, Inc., 409 P.2d
983, 986 (Alaska 1966)).
9 We attach no particular significance to Simpsons
request for attorneys fees under Rule 68 because attorneys fees
are available to a party whose opponent voluntarily dismisses its
claims after rejecting an offer of settlement. See Miklautsch v.
Dominick, 452 P.2d 438, 440 (Alaska 1969) (All that is required
to bring into play the offeree must pay the costs incurred after
the making of the offer portion of Civil Rule 68 is a recovery
which falls short of the offer of judgment.).
10 We therefore decline to address whether separate
duties of disclosure apply to a seller and a listing agent,
leaving this issue open for future resolution.
11 AS 34.70.010, .060.
12 See Real Estate Commission, State of Alaska Residential
Real Property Transfer Disclosure Statement,
http://www.dced.state.ak.us/occ/pub/ rec4229.pdf (last visited
Nov. 27, 2006).
13 See Blood v. Kenneth Murray Ins., Inc., 68 P.3d 1251,
1255 (Alaska 2003); Powers v. United Servs. Auto. Assn, 6 P.3d
294, 299 (Alaska 2000) (concluding no waiver occurred where
appellee cannot be said to have engaged in direct, unequivocal
conduct that indicated its purpose to abandon its right to demand
arbitration with [appellant]).
14 Ramsey v. City of Sand Point, 936 P.2d 126, 130 (Alaska
1997).
15 Cf. Wright v. Universal Mar. Serv. Corp., 525 U.S. 70,
77, 79-90 (1980) (declining to give effect to union-negotiated
waiver of employees right to have employment discrimination
claims heard in court because of contracts unclear language).
16 AS 34.70.110; Real Estate Commission, supra note 12,
at 9.
17 Padgett v. Theus, 484 P.2d 697, 700 (Alaska 1971)
(Ordinarily an issue which was not raised in the trial court will
not be treated on appeal.).
18 Because we conclude the waiver is valid, we need not
address whether a seller must disclose the fact that a person
died in the home being sold or whether disclosure of a death in a
house is required under the Real Estate Commissions disclosure
form. Cf. AS 08.88.615(c) (requiring that real estate licensee
disclose murder or suicide that occurred on property within one
year before date that licensee first showed real estate to
buyer).
19 Restatement (Second) of Torts 551 (1977) provides in
relevant part:
(2) One party to a business transaction is
under a duty to exercise reasonable care to
disclose to the other before the transaction
is consummated,
. . . .
(b) matters known to him that he knows
to be necessary to prevent his partial or
ambiguous statement of the facts from being
misleading; and
. . . .
(e) facts basic to the transaction, if
he knows that the other is about to enter
into it under a mistake as to them, and that
the other, because of the relationship
between them, the customs of the trade or
other objective circumstances, would
reasonably expect a disclosure of those
facts.
20 Id. 551(2)(b).
21 See id. 551 cmt. c.
22 Gloria Williams testified by deposition as follows:
Question: It is my understanding
that when she was found by the
wellness inquiry by the police
department, that there was some
blood and debris located within the
vicinity . . . where she was lying.
Do you have any knowledge of that?
Answer: No.
Question: Do you know whether or
not there was any blood or debris
when she was found?
Answer: No.
Gloria Williamss deposition testimony made clear that
she was unaware of the extent of the damage caused by the
decomposition of her mothers body until this lawsuit was served
on her.
23 Id. 551(2)(e).
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