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Metsker v. Cahoon

United States District Court, W.D. Missouri, Western Division

March 27, 2017

M. SCOTT METSKER, et al., Plaintiffs,
v.
DANIEL R. CAHOON, et al., Defendants.

          ORDER

          FERNANDO J. GAITAN, JR. United States District Judge

         Pending before the Court are (1) Defendant Graebel Relocation Services Worldwide, Inc.'s Motion for Summary Judgment (Doc. No. 54); and (2) Defendants Daniel and Nicole Cahoon's Motion for Summary Judgment (Doc. No. 52). The Court notes that the defendants' requests for oral argument have been withdrawn (Doc. Nos. 76 and 77).

         I. Background

         Plaintiffs filed the pending action on March 10, 2015, in the Circuit Court of Jackson County at Independence. On April 17, 2015, defendants timely removed the action, asserting diversity jurisdiction. Plaintiffs are homeowners of a single family home located at 8821 Boten, Lee's Summit, Missouri, legally described as: Lot 16, LOCHKIRK ESTATES, a subdivision in Jackson County, Missouri (the “Property”). Defendants Daniel and Nichole Cahoon presently reside in Salt Lake City, Utah, but formerly owned the Property at issue in this dispute. Defendant Graebel Relocation Services Worldwide, Inc., is a relocation services company, and the Cahoons conveyed the property to Graebel prior to the sale of the Property to plaintiffs. Plaintiffs generally allege that defendants' real estate disclosures minimized or omitted known conditions regarding the property, improperly inducing plaintiffs to purchase the property.

         Plaintiffs' petition contains three counts: Count I - Fraud and Misrepresentation against the Cahoons; Count II - Negligent Misrepresentation against the Cahoons; and Count III - Negligent Misrepresentation against Graebel.

         In its motion for summary judgment, Defendant Graebel argues that it has established its affirmative defenses of waiver, release, and estoppel. See Doc. No. 54. In their motion for summary judgment, the Cahoons argue that (1) plaintiffs released all their claims against them; (2) plaintiffs' detrimental reliance argument is negated by the fact that plaintiffs had an inspection of the home done prior to purchase; and (3) plaintiffs are unable to prove the required elements of negligent and fraudulent misrepresentation under Missouri law. See Doc. No. 52.

         II. Facts

         This lawsuit arises out of the purchase of a home by the Plaintiffs, located at 8821 Boten, Lee's Summit, MO 64064 (the “Metsker home”). The Plaintiffs allege that certain material defects in the home were misrepresented by the Sellers, Defendants Daniel and Nicole Cahoon, in the “Sellers Disclosure and Condition of Property Addendum.” At all relevant times, Daniel Cahoon was an employee of H&R Block. Defendant Graebel Relocation Services Worldwide, Inc. (“Graebel”) handles the relocation benefit provided to H&R Block employees. The Cahoons deeded their Boten residence to Graebel, who then deeded it to plaintiffs after closing.

         Defendant Daniel Cahoon completed and both Cahoon defendants signed the Disclosure attached as Exhibit B to Doc. No. 53. They also completed a “Graebel Relocation Services Worldwide, Inc. Homeowners Disclosure Statement.” Doc. No. 53, Ex. C. Defendant Daniel Cahoon testified he never met plaintiff Scott Metsker until after the filing of this suit, and Mr. Cahoon further testified that the plaintiffs never asked him any questions about the fire which occurred in the house. Defendant Cahoon testified that had the plaintiffs contacted him, he would have answered any of their questions.[1]

         Graebel is a relocation services company, which entered into a Rider to Buyer Offer ("Rider") with Plaintiffs dated June 18, 2013, consisting of the Rider itself (attached as Exhibit 1 to Doc. No. 55), [2] and three exhibits titled Exhibit A to Rider to Buyer Offer (Exhibit 2 to Doc. No. 55), [3] Exhibit B to Rider to Buyer Offer (Exhibit 3 to Doc. No. 55), and Exhibit C to Rider to Buyer Offer - Graebel Relocation Services Worldwide, Inc. Release of All Claims by Buyer (Exhibit 4 to Doc. No. 55).

         On or about June 19, 2013, Plaintiff Scott Metsker signed and initialed Exhibit 1, and initialed every page of Exhibits 2 and 3. Plaintiff Scott Metsker initialed every page of Exhibit 4, and on August 2, 2013, signed Exhibit 4 before Notary Public Sheila D. Havard. Plaintiffs do not dispute the authenticity of Mr. Metsker's signature and initials on these documents.

         As a relocation company, GRSW purchases properties solely for the purpose of resale, and does not reside in the homes it sells. Neither GRSW nor its agents, employees, or other representatives has ever resided in the Metsker home. See Doc. No. 55, Exhibit 3, at ¶¶ 3, 10.

         Exhibit B to the Rider (Ex. 3 to Doc. No. 55) includes the following statements:

3. Relocation Trans1action Acknowledgement. Buyer expressly acknowledges all of the following:
a. Graebel is a relocation services provider, which purchased the Property solely for the purpose of resale;
b. Graebel is not a natural person and therefore it has never resided in the Property;
c. None of Graebel's agents, employees, or other representatives have ever resided in the property; and
d. Graebel has no actual knowledge of the condition of the Property except those matters, if any, which arose after the date of acquisition of the Property by Graebel.
4. General Disclaimer of Representations and Warranties. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT GRAEBEL HAS-NOT MADE AND HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT, OR FUTURE, OF, AS TO, OR CONCERNING:
a. THE NATURE, SQUARE FOOTAGE, CONDITION, VALUE, OR QUALITY OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE WATER, THE SOIL, AND GEOLOGY AND THE SUITABILITY THEREOF AND OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY ELECT TO CONDUCT THEREON;
b. THE MANNER, CONSTRUCTION, CONDITION, QUALITY, STATE OF REPAIR, OR LACK OF REPAIR OF ANY OF THE PROPERTY;
c. EXCEPT FOR ANY WARRANTIES CONTAINED IN THE DEED, IF ANY, THE NATURE AND EXTENT OF ANY RIGHT-OF-WAY LEASE; POSSESSION, LIEN, ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHERWISE; AND
d. THE COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES, OR REGULATIONS OF ANY GOVERNMENT OR OTHER BODY.
5. No Express of Implied Representations or Warranties. BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, IN CONSIDERATION OF THE AGREEMENTS OF GRAEBEL HEREIN, GRAEBEL MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT AS OTHERWISE SPECIFIED HEREIN RELATING TO THE PROPERTY.
6. No Warranty of Compliance with Laws. BUYER ACKNOWLEDGES AND AGREES THAT GRAEBEL HAS NOT WARRANTED, AND DOES NOT HEREBY WARRANT, THAT THE PROPERTY OR ANY IMPROVEMENTS LOCATED THEREON NOW OR IN THE FUTURE WILL MEET OR COMPLY WITH THE REQUIREMENTS OF ANY SAFETY CODE OR REGULATION OF THE STATE, COUNTY, OR MUNICIPALITY WHERE THE PROPERTY IS LOCATED, OR ANY OTHER AUTHORITY OR JURISDICTION.
***
8. Buyer's Inspection and Reliance Thereon. BUYER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT BUYER HAS THOROUGHLY INSPECTED AND EXAMINED THE PROPERTY TO THE EXTENT DEEMED NECESSARY BY BUYER IN ORDER TO ENABLE BUYER TO EVALUATE THE PURCHASE OF THE PROPERTY. BUYER HEREBY FURTHER ACKNOWLEDGES AND AGREES THAT BUYER IS RELYING SOLELY UPON THE INSPECTION, EXAMINATION, AND EVALUATION OF THE PROPERTY BY BUYER AND THAT BUYER IS PURCHASING THE PROPERTY, ON AN "AS IS, WHERE IS" AND "WITH ALL FAULTS" BASIS AND NOT ON ANY INFORMATION PROVIDED, OR TO BE PROVIDED BY GRAEBEL.
***
10. Purchase from Relocation Company. BUYER ACKNOWLEDGES AND AGREES THAT GRAEBEL HAS OWNED THE PROPERTY ONLY SINCE THE DATE OF ACQUISITION OF THE PROPERTY BY GRAEBEL, HAS NOT RESIDED ON THE PROPERTY, AND IS NOT IN A POSITION TO MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, AS TO THE PROPERTY OR THE CONDITION THEREOF.
11. Graebel Not Bound by Statements or Other Information Provided by Others. GRAEBEL IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, OR REPRESENTATIONS OF INFORMATION, PERTAINING TO THE
PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, OR ANY OTHER PERSON.
***
13. Tests. Inspections, and Disclosure Documents.
a. Tests and Inspections. The tests and inspections described in Exhibit A have been conducted in, on or with respect to the Property. Buyer acknowledges receipt of the test(s) and/or inspection(s) documentation specified in Exhibit A. In the event Graebel test(s) and/or inspection(s) documentation is not available at the time of the execution of the Buyer Offer and this Rider, Graebel agrees to provide Buyer with such reports within five (5) days of Graebel's receipt of such reports, and to provide Buyer five (5) days to review the reports and provide Graebel with written notice of defects in the manner described in Section 15 of this Rider.
b. Disclosure Documents. BUYER ACKNOWLEDGES RECEIPT OF THE DISCLOSURE DOCUMENTATION SPECIFIED IN EXHIBIT A. BUYER ACKNOWLEDGES AND AGREES THAT THE ABOVE-LISTED DISCLOSURE DOCUMENTATION IS BEING PROVIDED TO BUYER FOR INFORMATIONAL PURPOSES ONLY AND IN COMPLIANCE WITH GRAEBEL'S LEGAL DISCLOSURE DUTY, IF ANY, AND FOR NO OTHER PURPOSE. GRAEBEL MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES RELATING TO THE PROPERTY BASED ON THE ABOVE-LISTED DISCLOSURE DOCUMENTATION. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT IT IS NOT ENTITLED TO RELY ON THE ABOVE-LISTED DISCLOSURE DOCUMENTATION AND THAT BUYER IS MAKING ITS PURCHASE DECISION BASED SOLELY ON THE BUYER'S OWN EXAMINATIONS, INSPECTIONS, AND TESTS OF THE PROPERTY.
***
15. Buyer's Inspection and Tests. Buyer has the right to inspect or to have the Property inspected and tested by others on Buyer's behalf to determine the existence of defects, if any. All inspections and tests shall be conducted at Buyer's sole cost and expense. Graebel recommends, but does not require, that Buyer secure such surveys, title inspections, professional building inspection reports, and other inspections and tests as Buyer, in its sole and exclusive discretion, deems necessary or appropriate to determine the condition of the Property, including but not limited to, any inspections or tests necessary to determine the presence of radon gas, asbestos, lead based paint, underground storage tanks, or toxic or hazardous substances in or about the Property. Buyer acknowledges and agrees that all inspections and tests conducted on Buyer's behalf, and any defects discovered as a result of those inspections or tests, must be reported to Graebel or Graebel's agent in writing, accompanied by a complete copy of Buyer's inspection and test reports, no later than 5:00 p.m. (in the jurisdiction where the Property is located) on the last day of the Buyer's Inspection Period as set forth on Exhibit A. Buyer further acknowledges and agrees that, to the fullest extent permitted by law, buyer's failure to provide Graebel with a copy of the inspection and test reports and reported defects on or prior to the last day of the Buyer's Inspection Period shall constitute (a) Buyer's constructive acceptance of the condition of the Property, (b) Buyer's waiver of all inspection contingencies under the Buyer Offer of this Rider, and (c) Buyer's agreement to proceed to closing of the transaction for the sale and purchase of the Property as contemplated by the Buyer Offer and this Rider (the "Closing").
***
17. Pre-Closing Inspection of Condition of Property. Buyer shall have the right to make a final inspection of the Property within forty-eight (48) hours before Closing, not as a contingency of the sale, but solely to confirm that the Property's condition has not deteriorated from the date of the Buyer Offer and the Rider (ordinary wear and tear excepted).
***
20. Buyer's Release. Buyer expressly acknowledges that all of the obligations of Graebel pursuant to the Buyer Offer, as amended by this Rider, are subject to and conditional upon Buyer executing and delivering to Graebel at the Closing the Release of All Claims by Buyer which is attached hereto as Exhibit C and incorporated herein by reference.
***
27. Miscellaneous ...

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