Elworthy v. Spiva
This litigation arises out of a real estate transaction in which Bruce Elworthy and Anne Marshall (husband and wife, jointly Buyers) purchased a home for $3 million from Stephan (Steve) and Barbara Spiva (Spivas or Sellers). After they discovered several defects with the home, many of which had to do with windows and doors that leaked, Buyers sued Sellers, Sellers’ real estate agents, and certain parties responsible for the construction of the home. After settling with some defendants and dismissing others, the case was tried to the court on Buyers’ claims for intentional misrepresentation, negligent misrepresentation, and rescission against Sellers. The court found for Buyers on their claim for negligent misrepresentation about the doors that leaked; it awarded Buyers $60,000 in damages.
In this appeal, Buyers challenge the trial court’s ruling that rescission of the house purchase––as opposed to a $60,000 damages award––was not available to them as a remedy. Buyers contend the court erred when it refused to grant their request for rescission, abused its discretion when it found that Buyers were guilty of laches, and erred when it failed to consider that Sellers engaged in “more than mere ‘negligent misrepresentation.’ †We conclude that the court properly found that rescission was not available to Buyers because they had lost the property to foreclosure. Accordingly, we will affirm the judgment.
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