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= &n= bsp; &nbs= p; = &n= bsp; ENTRY ORDER
= &n= bsp; &nbs= p; SUPREME COURT DOCKET NO. 2004-394
= &n= bsp; &nbs= p; = &n= bsp; APRIL TERM, 2005
A. Brooks Brown and Melinda Brown &nb= sp; } = APPEALED FROM:
v. = &n= bsp; &nbs= p; = &n= bsp; } = Bennington Superior Court
Lee Spivey and Moira Spivey&= nbsp; &nb= sp;  = ; }
} DOCKET NO= . 180-6-03 Bncv
Trial Judge: Karen R. Carroll
= ; &= nbsp; &nb= sp; In the above-entitled cause, the Clerk will enter:
Plaintiffs appeal the superior court’s order granting summary judgment in favor= of defendants with respect to plaintiffs’ lawsuit alleging that defenda= nts fraudulently or negligently sold them a house that was later found to have significant moisture problems. We affirm.
bought the house in question from defendants in 1996. At the time of the purchase, plai=
hired a building inspector to inspect the house. His inspection revealed a moisture
problem in two areas of the house, and he made several recommendations
concerning the problem. Base=
the inspector’s report, the parties entered into an escrow agreement
intended to assure that those recommendations were followed. The closing occurred on April 17,=
and the escrow funds were released the next month. In August 2001, plaintiffs noticed
moisture problems in their garage and contacted their insurance company.
The insurance company sent an exp=
determined that the problem was caused by an improperly applied vapor
barrier. Upon further
investigation, plaintiffs learned that the same problem existed throughout=
In June 2003, plaintiffs filed a complaint against defendants, alleging consu= mer fraud, negligent misrepresentation, negligent nondisclosure, breach of warranty, and fraudulent concealment.&nbs= p; In their answer, defendants denied the allegations and claimed that plaintiffs’ suit was barred by the applicable statute of limitations. In February 200= 4, following discovery, defendants filed a motion for summary judgment, argui= ng that the statute-of-limitations period commenced in 1996 when plaintiffs b= ecame aware that the house had moisture problems, and that plaintiffs had failed= to file their complaint within the applicable six-year period. See 12 V.S.A. § 511 (civil l= awsuit must be commenced within six years after cause of action accrues). Notwithstanding plaintiffs’ opposition, the superior court granted defendants’ motion, ruling th= at in 1996 plaintiffs had information sufficient to put a reasonable person on n= otice to investigate the moisture problem further, which, in turn, would have led them to discover the extent of the problem.
On appeal, plaintiffs argue that they presented credible evidence sufficient = to create jury questions as to when the limitations period began to run and whether the limitations period should have been tolled because of defendants’ fraudulent concealment.= See 12 V.S.A. § 555 (“When a person entitled to bring a personal action is prevented from so doing by the fraudulent concealment o= f the cause of such action by the person against whom it lies, the period prior = to discovery of such cause of action shall be excluded in determining the time limited for the commencement thereof.”). According to plaintiffs, they sub= mitted evidence demonstrating that they had not been given fair notice of the hid= den defect caused by the defective vapor barrier, and, at minimum, the trial c= ourt should have left it for the jury to determine when their cause of action h= ad begun to accrue and whether it should be tolled by defendants’ fraud= ulent concealment.
We agree with plaintiffs that the trier of fact ordinarily determines when the limitations period commenced and whether it was tolled by fraudulent concealment. See Aube v. O’Brien, 140 Vt. 1, 3, 5 (1981) (issue of whether fraudulent concealment tolled limitations period is question for trier of fact); M= onti v. Grantite Sav. Bank & Trust Co., 133 Vt. 204, 209 (1975) (mem.) (whether statute-of-limitations defense had merit and whether there was fr= aud were both questions for jury). Nevertheless, when there is no dispute as to any material fact, the trial court may resolve these questions as a matter of law. Compare Galfetti v. Berg, Carm= olli & Kent Real Estate Corp., 171 Vt. 523, 525-26 (2000) (affirming su= mmary judgment for defendant because undisputed material facts demonstrated that plaintiffs’ cause of action began to accrue when plaintiffs received letter informing them that house they purchased was in single-family zoning area); Rodrigue v. VALCO Enter., Inc., 169 Vt. 539, 541-42 (1999) (= mem.) (affirming summary judgment for defendant because undisputed material facts demonstrated that limitations period began to accrue shortly after automob= ile accident when plaintiff learned that he might have dram shop action against defendant) with Earle v. State, 170 Vt. 183, 193-94 (1999) (reversi= ng summary judgment ruling because existing record did not demonstrate, as ma= tter of law, when plaintiff first discovered that his psychological problems we= re caused by sexual abuse underlying his claim against defendant).
Generally, the limitations period begins to run when the plaintiff has information, or should have obtained information, sufficient to notify a person of ordinary intelligence and prudence that a cause of action exists. Rodrigue, 169 Vt. at 541.<= span style=3D'mso-spacerun:yes'> When there is an opportunity to o= btain information from available sources, “[t]hat is the point from which a plaintiff may use the limitations period to investigate or pursue a cause = of action.” Id.; s= ee Galfetti, 171 Vt. at 524 (cause of action accrues upon (1) discovery of facts constituting basis of cause of action or (2) existence of facts sufficient= to lead reasonable person to discover cause of action). Thus, the plaintiff is ultimately chargeable with notice of all facts that could have been obtained through reasonable diligence. Gal= fetti, 171 Vt. at 524.
Here, plaintiffs knew in 1996 before the closing that the house had a moisture problem. Indeed, six days be= fore the closing, plaintiffs’ attorney sent a letter to defendants’= attorney stating that a “major concern” of plaintiffs was the moisture problem, and that plaintiffs questioned whether merely scraping and repain= ting the damaged areas would resolve the problem. The letter indicates that plaintiffs’ attorney spoke to plaintiffs’ building inspector, = who was not sure what could be done to correct the problem, but suggested that= a carpenter remove some of the clapboards and cut a hole to determine the ex= tent of the moisture problem. Thu= s, the letter plainly states that plaintiffs were aware of both the moisture prob= lem and the means by which the extent of the problem could be determined. Under these circumstances, we agr= ee with the superior court that, as a matter of law, the limitations period began = to accrue in April 1996.
We find unavailing plaintiffs’ contention that the letter was incorrect because, as evidenced by his report and his later affidavit, the building inspector never recommended cutting a hole in the house to determine the e= xtent of the problem. There is no = dispute over any material fact. It is undisputed that plaintiffs’ building inspector identified a moist= ure problem and was unsure of its cause. Further, the statements of plaintiffs’ attorney—who inf= ormed defendants’ attorney that plaintiffs were concerned about the moistu= re problem, that repainting would probably not resolve the problem, and that = the extent of the problem could be determined by removing the clapboards and inspecting the interior walls—are imputed to plaintiffs. Galfetti, 171 Vt. at 525.<= span style=3D'mso-spacerun:yes'> They cannot now claim that they h= ad no notice of the moisture problem or that they did not possess information gi= ving them an opportunity to discover facts that would have revealed a possible = cause of action.
Nor do we find availing plaintiffs’ claim that the superior court should= have allowed the jury to determine whether defendants’ fraudulent conceal= ment tolled the limitations period. Plaintiffs have not presented any facts to support their bald asser= tion that defendants fraudulently concealed a defect in the house. V.R.C.P. 56(e) (party opposing mo= tion for summary judgment “must set forth specific facts showing that the= re is a genuine issue for trial”). In any event, a limitations period may be tolled when “a pers= on entitled to bring a personal action is prevented from so doing by t= he fraudulent concealment of the cause of such action by the person against w= hom it lies.” 12 V.S.A. &s= ect; 555 (emphasis added). Here, = we have concluded that plaintiffs knew enough in 1996 to discover their cause of action, and thus any fraudulent concealment on defendants’ part did = not prevent plaintiffs from bringing that cause of action within the applicable limitations period. See R= odrigue, 169 Vt. at 542 (affirming summary judgment for defendant notwithstanding a= ny alleged fraudulent concealment on defendant’s part because plaintiff still had access to ample information that would have allowed timely filin= g of claim).
BY THE COURT:
John A. Dooley, Associate Justice
Denise R. Johnson, Associate Justice
Frederic W. Allen, Chief Ju= stice (Ret.),