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Furman v. Rowe Real Estate
Citations: 168 Vt. 597; 715 A.2d 1290; 1998 Vt. LEXIS 240Docket: No. 97-190
Court: Supreme Court of Vermont; July 27, 1998; Vermont; State Supreme Court
Defendants were found liable for negligent misrepresentation in a real estate transaction, but not for common law or consumer fraud. Plaintiffs, Bruce and Tammy Fhrman, contended that the trial court erred in denying their motion for partial summary judgment, excluding relevant non-hearsay evidence, admitting hearsay evidence, and improperly instructing the jury. The case involved a property in Brandon, Vermont, previously owned by Mr. and Mrs. Muthersbaugh, with whom the Realtor, Fred Rowe, had an exclusive listing agreement. The Fhrmans, living in California, expressed interest in the property after Realtor informed them of a "dog smell." They negotiated a contract over the phone without inspecting the property, signing it in November 1993 and paying a $17,000 non-refundable deposit. Upon arriving in Vermont in December, they encountered a strong dog odor and demanded a refund. The sellers undertook remediation work, after which the Fhrmans moved in and lived there for eleven months without issue. As the expiration of their purchase option approached, their financing application was rejected due to poor credit. Shortly before the deadline, they declared the house "uninhabitable" and vacated. The sellers quickly resold the property to another buyer who reported no pet odor. The Fhrmans subsequently filed suit for negligent misrepresentation and consumer fraud in June 1995, claiming the home remained uninhabitable despite remediation. Their motion for summary judgment was denied by the trial court. A jury determined that the Realtor made a negligent misrepresentation to the buyers, but found that the buyers suffered no damages and were 85% at fault compared to the defendants' 15%. The jury also ruled that the defendants were not liable for common law fraud or consumer fraud. Consequently, the trial court ruled in favor of the defendants and denied the buyers' motion for a new trial. On appeal, the court concluded that the buyers failed to prove damages, which was critical to their claims. Special interrogatories were used to assess liability and damages. The jury confirmed the defendants’ liability for negligent misrepresentation but found no damages were proven by the buyers. The buyers argued that the jury’s liability finding precluded them from recovering under a comparative negligence theory; however, the court disagreed, emphasizing that the jury assessed damages before determining the buyers’ negligence. The court noted that the buyers had ample opportunity to present evidence of damages but failed to do so, as they lived in the property for nearly eleven months without complaint and even sought financing to purchase it. The court affirmed the jury’s finding of no damages, asserting that the buyers did not seek clarification on the jury’s verdict at the time, which limited their ability to contest the findings on appeal.