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Ghidotti v. Waldron

Court of Appeals of Utah

May 2, 2019

Darnell Ghidotti and Greg Ghidotti, Appellants,
v.
Melodie Waldron and Re/Max Metro, Appellees.

          Third District Court, West Jordan Department The Honorable James D. Gardner No. 150900601

          Lincoln W. Hobbs and Sarah H. Orme, Attorneys for Appellants

          Stuart H. Schultz and Nicholas E. Dudoich, Attorneys for Appellees

          Judge Kate Appleby authored this Opinion, in which Judges Michele M. Christiansen Forster and David N. Mortensen concurred.

          OPINION

          APPLEBY, Judge

         ¶1 Darnell and Greg Ghidotti appeal the district court's grant of summary judgment in favor of Melodie Waldron and Re/Max Metro (collectively, Re/Max). The court ruled that the Ghidottis were unable to prove their damages with the requisite degree of certainty and had not properly disclosed Darnell[1] as an expert witness prior to trial. We affirm.

         BACKGROUND

         ¶2 The Ghidottis were looking to purchase a house where they could live and operate a dog training and boarding business. They specifically wanted to find one in a community that was not controlled by a homeowners' association (HOA) because they anticipated an HOA would not allow them to operate this type of business from their home. One of the listings the Ghidottis reviewed with their real estate agent was for a property (Property) that apparently was not subject to an HOA: the listing left "blank[s]" after "HOA contact," "HOA phone," and "HOA remarks," and the section identifying "Restrictions on the property" was marked "No."

         ¶3 The Ghidottis signed a real estate purchase contract for the Property in May 2014. The contract required the sellers (Sellers) to make various disclosures including providing "a copy of any restrictive covenants (CC&Rs) [and] rules and regulations affecting the property." In their disclosures, the Sellers represented the Property was not "part of a condominium or other [HOA]." The Ghidottis allege they were never provided copies of any CC&Rs or rules and regulations affecting the Property. Based on the representations in the real estate purchase contract and the Sellers' disclosures that the Property was not subject to an HOA, the Ghidottis closed the deal on the Property.

         ¶4 After purchasing the Property, the Ghidottis applied for a conditional use permit, which they needed for keeping dogs on the Property. After becoming aware of the permit application, members of the Country Lane Ranchette's Homeowners' Association objected to its issuance, asserting that the Property was subject to CC&Rs. Further research revealed the Property was in fact subject to CC&Rs, which prohibited the Ghidottis from keeping their own dogs on the Property and precluded them from operating a training and kennel business there.

         ¶5 The Ghidottis filed a lawsuit in 2015 against the Sellers, Re/Max, and their real estate agent and broker.[2] In March 2015, the Ghidottis served their initial disclosures. The disclosures designated Darnell as a fact witness who potentially would testify about the Ghidottis' desire to purchase property not subject to an HOA, their efforts to ensure the Property was not subject to an HOA, the information provided to them about the Property, and how they discovered it was subject to an HOA. Neither Ghidotti was identified as an individual who would testify about damages. Darnell was mentioned among the "individuals who the plaintiffs may call in their case in chief" along with the phrase, "See summary of expected testimony above." The "computation of damages" section stated that the Ghidottis had "not yet had an opportunity to ascertain their damages." Further, it stated that the damages calculation would "depend upon if and when the [Ghidottis were] able to sell their Property" and "upon the expenses [the Ghidottis were] forced to incur in defending the action brought against them by their neighbors who [were] seeking to enforce the [CC&Rs]."

         ¶6 As fact discovery progressed, Darnell testified in her deposition about her calculation of damages resulting from their inability to run the business out of their home. Darnell acknowledged this was a new business operation. She also testified there were no other businesses in the area that offered similar services. After Darnell's deposition the Ghidottis filed their first supplemental disclosures, which included financial documents "the [Ghidottis] may offer in their case-in-chief." The documents were labeled but no explanation was provided along with them. The Ghidottis filed their second supplemental disclosures, which provided the following damages calculation:

The [Ghidottis] have computed their damages based on the difference in revenue their business . . . would have earned, had they been able to operate the business as originally planned, and what it will earn in light of the required changes to its business plan. Because the [Property] . . . is in the Country Lane Ranchette's Homeowners' Association and is subject to restrictive covenants-a fact that was concealed from and thus unbeknownst to [the Ghidottis] at the time of their purchase, despite their efforts to avoid purchasing a property in a homeowners association-[the Ghidottis] cannot operate the business on their property, as originally intended, but will have to operate the business at an off-site location. Operating at an off-site facility changes the services ...

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