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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

Deptula v. Simpson (07/27/2007) sp-6142, 164 P3d 640

     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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