Buyers allege 'sick home' cover-up

Law of the Land

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Feb. 3, 2010

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Law of the Land

Tara-Nicholle Nelson
Inman News

In the case Sims, et al. vs. Weyerhaeuser, et al., the Sims family purchased a home and became ill after they moved in. They filed suit against the sellers (the Boscheinen family), claiming that the sellers were aware of mold, heavy metals and bacteria in the home, and fraudulently misrepresented the home's condition by concealing the air-quality issues.

The buyers also sued Weyerhaeuser, the manufacturer of wood components of the home, alleging the wood was defective and contained benzene, heavy metals and other toxic chemicals.

At trial, the court granted summary judgment for both the manufacturer and the sellers. Regarding the manufacturer, the court found that the wood at issue was neither a good nor a product under the Uniform Commercial Code sections invoked by buyers, and that there was no contractual or other relationship between the buyers and the manufacturer that would give rise to a cause of action.

In summarily dismissing the buyers' claims against sellers, the trial court reviewed the sellers' medical records and determined -- without disclosing those records to the buyers -- that the sellers had not experienced any air-quality-related illnesses that would have made them aware of the alleged issues.

The buyers appealed both grants of summary judgment, claiming that they had not completed discovery of information from the manufacturer and that the trial court erroneously sealed the sellers' medical records while using the sealed records as the basis for dismissing the case.

The Court of Appeals affirmed the trial court's grant of summary judgment and dismissal of the buyers' claims. On appeal, the court found that the trial court's sealing of the seller's medical records was in error.

However, the appellate court found that the trial court's grant of summary judgment in favor of the sellers was based not on the court's "in camera" (in chambers) review of the sellers' medical records, but on the trial court's finding that the sellers had offered to pay for the buyers to have a mold inspection, and that the buyers had refused such an inspection.

These facts defeated the buyers' claims that the sellers intentionally misrepresented the quality of the home's air, and rendered the trial court's error in sealing the sellers' medical record a harmless error.

With respect to the buyers' appeal of the trial court's grant of summary judgment against the manufacturer, the appellate court agreed with the manufacturer's argument that the new issues and arguments presented by the buyers on appeal were neither issues brought up and thus preserved at trial, nor were they presented in a timely manner. Accordingly, the Court of Appeals affirmed the trial court's ruling.

Tara-Nicholle Nelson is author of "The Savvy Woman's Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Ask her a real estate question online or visit her Web site, www.rethinkrealestate.com.

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