Summary
The Vermont Supreme Court affirmed summary judgment for a home appraiser on the purchaser’s claims for negligent misrepresentation, negligence, and consumer fraud. The court held that the appraiser owed no duty to the purchaser because the lender was the appraiser’s only client and there was no evidence of intended or invited reliance by the purchaser. It also held that an allegedly erroneous professional appraisal opinion, absent a scheme to defraud or misrepresentation of specific facts, was a malpractice matter outside the scope of Vermont’s Consumer Fraud Act. The court further upheld enforcement of Vermont Rule of Civil Procedure 56(c)(2), deeming the moving party’s supported facts admitted when the opponent filed no separate statement of disputed facts.
Topics
Practice areas
Questions Presented
- Whether the superior court properly deemed the defendant's asserted material facts admitted when the plaintiff failed to file the separate statement of contested facts required by Vermont Rule of Civil Procedure 56(c)(2).
- Whether an appraiser hired solely by a mortgage lender owed the home purchaser a duty sufficient to support negligence and negligent misrepresentation claims under the undisputed summary-judgment record.
- Whether a home purchaser may recast an allegedly erroneous appraisal based on professional judgment as a consumer fraud claim under Vermont's Consumer Fraud Act.
Holdings
- When an opposing party fails to file the separate statement of contested facts required by V.R.C.P. 56(c)(2), properly supported material facts in the moving party's statement are deemed admitted and may be treated as true on summary judgment.
- On the undisputed facts, an appraiser whose only client is the purchaser's mortgage lender, and who did not intend to provide the appraisal to or induce reliance by the purchaser, owes no duty to the purchaser supporting negligence or negligent misrepresentation claims.
- A plaintiff cannot recast a malpractice claim based on a professional's allegedly erroneous opinion or exercise of professional judgment as a consumer fraud claim, unless the conduct involves a fraudulent scheme, a misrepresentation of specific facts, or conduct that is not an expression of professional opinion.
Key quotations
“Forcing courts to sift through nearly fifty pages of narrative in order to find contested and uncontested facts is precisely the type of “needle in a haystack” search the rule is meant to avoid.” (560)
“Defendant owed no duty to plaintiff on which plaintiff could rest a negligence or negligent misrepresentation claim.” (563)
“A plaintiff cannot simply recast a malpractice claim as a consumer fraud claim.” (564)
“Not every alleged wrong against a consumer is actionable under the Consumer Fraud Act; here, plaintiff fails to state a viable claim under the Act.” (565)
Factual background
Webb agreed to purchase a Vermont home for $310,000 and sought a $110,000 mortgage from Spruce Mortgage. Spruce hired Leclair, a licensed appraiser, to determine whether the property provided sufficient equity for the loan; Leclair's report stated that its purpose was to assist the lender and he had no agreement with Webb. Leclair valued the property at $310,200, but later appraisals valued it at approximately $252,000 to $255,000, allegedly because the home was older than represented in the appraisal. Webb did not receive or review Leclair's appraisal until after closing.
Procedural history
Ann Webb sued appraiser John Leclair for negligent misrepresentation, fraud, consumer fraud, negligence, and fraudulent concealment after later appraisals valued her home substantially below Leclair's appraisal. The superior court granted Leclair summary judgment on all counts, concluding that he owed Webb no common-law or statutory duty and that the evidence did not support the asserted misrepresentation, concealment, or intent theories. On appeal, Webb challenged only the negligent misrepresentation, negligence, and consumer fraud rulings. The Supreme Court of Vermont affirmed.