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Carleton v. Suzannewinter

June 15, 2006

JENNIFER CARLETON & JOHN CARLETON, APPELLANTS,
v.
SUZANNEWINTER, ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia (No. CA-6718-01) (Hon. Zoe Bush, Trial Judge).

The opinion of the court was delivered by: Kern, Senior Judge

Argued February 1, 2006

Before FARRELL and KRAMER, Associate Judges, and KERN, Senior Judge.

This appeal is from the grant of summary judgment to appellees on various claims --including misrepresentation and negligence -- brought against them arising from real estate or home inspection services they performed in connection with the appellants' purchase of a residence in Washington, D.C. We affirm the judgment as to appellee Winter, but vacate and remand for further proceedings with respect to appellees Home Tech Systems, Inc. and Robert Phillips (who conducted a home inspection of the property in question).

I.

Appellants John and Jennifer Carleton, government employees assigned to Washington, D.C., went house hunting for their child and themselves with a real estate agent, appellee Suzanne Winter. Appellants became interested in a four-story, six-bedroom house in the 2100 block of L Street, Northwest, which was conveniently located to their respective places of employment. Appellants recognized that the house, constructed in the early 1900s and poorly maintained, would require repairs and renovation, but they anticipated doing a good deal of this work themselves.*fn1 However, both they and their agent noted the sagging condition of the entire back wall of the house and the resultant slanting of this wall's windows, so as to give the windows what they described as a "cockeyed" appearance.

Appellants, concerned about the condition of the back wall, but also concerned that the house might be bought by others, presented an offer to the house's owners, conditioned upon a favorable report by a professional home inspection company. Appellants requested that their real estate agent, appellee Winter, choose for them a competent home inspector. She advised that there were only three companies in the area that she could recommend, one of them being appellee Home Tech Systems, Inc. (HTSI), and its employee, Robert Phillips. Winter had used Phillips in the past, and she described him as "great" and particularly suited for young people who were first-time home buyers, such as the Carletons.

Shortly thereafter, appellant John Carleton and home inspector Phillips went through the house together for almost two hours. Appellant Jennifer Carleton later testified at trial that she received a call from her husband who was then in the house with Phillips. Phillips had explained to John Carleton that old houses "settle" over time, and that this was what had happened to this particular house. After Phillips gave this favorable report, the condition earlier put on appellants' offer to purchase was removed, and they bought the house. Appellants paid HTSI $430 for the home inspection services, pursuant to a printed form agreement which John Carleton and Phillips had signed.

The Carletons commenced certain renovations, intending to create within their four-story dwelling a unit for a tenant. They brought in a contracting company to commence the renovations, but upon arrival, the construction foreman told them they had a "serious defect in the rear wall." Also, an architect hired by appellants examined their house and advised that the wall was going to have to be replaced, and advised appellants to have a structural engineer examine it. Shortly thereafter, the entire back wall of the Carletons' house collapsed. The fallen wall had to be removed through a public alley behind their house, which was a laborious, and thus expensive, process and a new wall put in its place.*fn2 While this repair work was being carried out, appellants and their child had to live in a near-by apartment. They estimated they expended some $169,000 on repairs to make their house livable.

Appellants brought suit against appellees Phillips and HTSI, and also against appellee Winter and her employer, generally alleging negligence on the part of them all, as well as alleging that appellee Winter had breached the fiduciary duty which she had owed them as their real estate agent.

The trial court, after considerable pretrial discovery, made various rulings, all of them unfavorable to appellants. Thus, the court concluded that appellee Winter's agency relationship with appellants did not fall within the ambit of the District of Columbia Consumer Protection Procedures Act (the CPPA), codified at D.C. Code §§ 28-3901 through -3913 (2005), and that she had not made fraudulent misrepresentations to them by recommending Phillips. The court also rejected appellants' contention that they did not need to present expert testimony to support their claim that Winter had breached her fiduciary duty to them as their agent by recommending Phillips to inspect the house before they purchased it. Finally, after a jury had been assembled and appellant Jennifer Carleton had testified, the court concluded that the expert witness appellants presented to explain to the jury the responsibilities of a real estate agent lacked sufficient expertise, and therefore, could not testify. Accordingly, the court entered judgment as a matter of law in favor of Winter and her employer.

As to appellants' claims against Phillips and his employer, HTSI, the court entered an "Order Granting in Part, and Denying in Part, Defendants' Motion for Summary Judgment." This terse ruling determined that there was a genuine dispute "as to whether the inspection was negligently performed," but then concluded, without explanation, that it was "clear that liability [of appellees HTSI and Phillips] is limited to a refund of the $430.00 inspection fee pursuant to . . . [the] signed agreement," and therefore that these appellees "may thus terminate involvement in this case by refunding the inspection fee."*fn3

II.

With respect to the court's rulings granting summary judgment and judgment as a matter of law, we review those determinations de novo. See Columbia Plaza Tenants' Ass'n v. Columbia Plaza Ltd. P'ship, 869 A.2d 329, 332 (D.C. 2005) (summary judgment); Brown v. Nat'l Acad. of ...


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