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Blackmore v. Re/Max Tri-Cities

July 6, 2010

RICH AND RENEE BLACKMORE, HUSBAND AND WIFE, BOTH INDIVIDUALLY, AND IN THEIR CAPACITY AS NATURAL PARENTS AND GUARDIANS AD LITEM OF RICH BLACKMORE, A MINOR CHILD, PLAINTIFFS-APPELLANTS,
v.
RE/MAX TRI-CITIES, LLC, SUE MIO, INDIVIDUALLY, BRAD THOMPSON, INDIVIDUALLY, AND KEVIN AND CHRIS RHINEHART, HUSBAND AND WIFE, DEFENDANTS-RESPONDENTS.



Appeal from the District Court of the Third Judicial District of the State of Idaho, Payette County. Hon. Gordon W. Petrie, District Judge.

The opinion of the court was delivered by: W. Jones, Justice

2010 Opinion No. 79

The decision of the district court is affirmed. Costs are awarded to Re/Max.

I. FACTS AND PROCEDURAL HISTORY

This case concerns events surrounding the purchase of property by the appellants, Rich and Renee Blackmore. The Blackmores were interested in moving from California to Idaho. Renee Blackmore (Renee) looked online for properties in Idaho and found a few that fit their needs. One of those properties was listed by Brad Thompson (Thompson) of Re/Max Tri-Cities, LLC (Re/Max). The Blackmores eventually traveled to Idaho to view properties. Thompson showed the Blackmores their current property, which is located on First Street in Fruitland, Idaho (the Property). The owners of the property at that time were Kevin and Chris Rhinehart. The selling agent for the Rhineharts was Sue Mio (Mio) of Re/Max.

The Blackmores had a friend, Rae Lubiewski, who is a licensed real estate agent, draft an offer to purchase the Property. The offer was faxed to the office of Re/Max and then Thompson took over for Lubiewski. The Blackmores entered into an independent contractor agreement for Thompson to act as their real estate agent. The offer was accepted by the Rhineharts, and the parties entered into a real estate purchase and sale agreement (the Purchase and Sale Agreement) on September 3, 2005. Under the terms of the Purchase and Sale Agreement, the transaction was contingent upon the Blackmores' satisfaction with the condition of the property. The Blackmores had the right to have the property inspected, and the contract included a procedure for repairs to be made by the Rhineharts. The Purchase and Sale Agreement gave the Blackmores the option not to continue with the transaction if necessary repairs were not made by the Rhineharts. It also provided that the transaction was contingent on the results of a ―well inspection‖ satisfactory to the Blackmores.

The Rhineharts provided the Blackmores with a completed property condition disclosure form. The Blackmores thereafter obtained an inspection from a professional home inspector. The inspector found inconsistencies with representations made in the disclosure form. The Blackmores offered Addendum #1 to the Purchase and Sale Agreement, which placed additional conditions upon the transaction. The Rhineharts rejected Addendum #1 and suggested the parties agree to the terms of Addendum #2, which required the Blackmores to accept the property ―as is‖ in exchange for a $10,000 reduction in the purchase price. The Blackmores accepted Addendum #2 on September 22, 2005. The closing occurred on September 30, 2005.

The day before the closing, Mio, without knowing a test had been requested, arranged for Alchem Laboratories to test the well water for coliform bacteria. Thompson first discussed the test with the Blackmores after he learned that Mio was having the water tested. Thompson relayed the results of the test to the Blackmores. There is debate over what was said in the communications between Thompson and the Blackmores regarding the test. The Blackmores claim that they asked Thompson for a full-panel water test to be performed, and Rich Blackmore (Rich) testified that he and Thompson ―talked about doing a full-panel water test.‖ Rich also testified that he and Thompson discussed what the inspection entailed, including the functioning of the well and the quantity and quality of the water. The Blackmores claim that Thompson then informed them that the ―water test came back fine....‖ On the other hand, Thompson claims he informed the Blackmores of the limited scope of the test-that the test indicated that the well did not contain coliform. Rich admitted that he never asked for a copy of the test results and never paid for the test.

The Blackmores claim that about one year after moving onto the property, they noticed that their son had a lack of appetite, dark circles under his eyes and was lethargic. The Blackmores claim that they later learned that he suffered from a condition brought on by consumption of dangerous levels of arsenic. The Blackmores had their well tested; in total, three tests were performed. The first test revealed that the well water contained twenty parts per billion of arsenic; the second test showed that the water contained twenty-seven parts per billion; and the third test showed that the water contained ten parts per billion. The Environmental Protection Agency (EPA) mandates that the maximum contaminant level for arsenic in a community water system is fifty parts per billion. 40 C.F.R. § 141.11(a). Rich testified that the presence of arsenic, even at levels below the EPA standards, would have been unacceptable.

The Blackmores filed a complaint on August 3, 2007. The Blackmores claimed breach of contract, failure to disclose and negligence on the part of the Rhineharts; the Blackmores claimed breach of contract, breach of fiduciary duty and negligence on the part of Re/Max, Thompson and Mio (the Defendants).*fn1 The Defendants filed an answer and the Rhineharts filed an answer and a cross-claim for negligence, equitable indemnity and contribution.

The Defendants and the Rhineharts each filed a motion for summary judgment. The Blackmores filed a memorandum in opposition to the Rhineharts' and the Defendants' motions for summary judgment. The Blackmores also filed affidavits of Dr. Shawn Benner, Scott Petterson and Thomas Lloyd. The Defendants and the Rhineharts both filed a motion to strike the affidavits. The Blackmores filed a motion in opposition to each of the two motions to strike and filed supplemental affidavits of Dr. Benner and Scott Petterson. The Defendants and the Rhineharts each filed a motion to strike the supplemental affidavits.

A hearing was held before the district court and on December 9, 2008, the court granted summary judgment in favor of the Defendants and the Rhineharts. The court also struck a portion of Dr. Benner's and Lloyd's affidavits and struck Petterson's affidavit and both supplemental affidavits in their entirety. The Blackmores filed a motion for reconsideration, seeking reconsideration of the negligence claim against the Defendants. On January 7, 2009, the district court denied the Blackmores' motion for reconsideration. The district court entered a judgment in favor of the Defendants on January 9, 2009. The Blackmores filed a notice of appeal from the order denying the motion for reconsideration, but not from the judgment in favor of the Defendants and the Rhineharts.

II. ISSUES ON APPEAL

1. Whether this Court should reverse the district court's grant of summary judgment on ...


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