Rucker v. Federal National Mortgage Association , 2016 COA 114 ( 2016 )

COLORADO COURT OF APPEALS 2016COA114
Court of Appeals No. 15CA1755
Adams County District Court No. 13CV31426
Honorable Frederick M. Goodbee, Judge
Ellyn Rucker,
Petitioner-Appellant,
v.
Federal National Mortgage Association and Heter and Company, Inc.,
Respondents-Appellees.
ORDER AFFIRMED
Division A
Opinion by JUDGE FOX
Hawthorne and Berger, JJ., concur
Announced July 28, 2016
The Frickey Law Firm, P.C., Howard Flicker, Eric B. Ballou, Lakewood,
Colorado, for Petitioner-Appellant
The Waltz Law Firm, Richard A. Waltz, Christopher R. Reeves, Denver,
Colorado, for Respondent-Appellee Federal National Mortgage Association
Law Offices of Skrabo & Atkins, Randee L. Stapp, Greenwood Village, Colorado,
for Respondent-Appellee Heter and Company, Inc.
¶1 In this C.A.R. 4.2 interlocutory appeal, plaintiff, Ellyn Rucker
(Ellyn),1 seeks review of the trial court orders holding that she was a
trespasser under the Premises Liability Act (PLA). She argues that
the court erred in concluding that she was not an invitee under the
PLA based on the “For Sale” sign at a house where she tripped and
fell on the pathway to the house. We grant Ellyn’s petition and
affirm the trial court’s orders.
I. Background
¶2 In June 2011, Kristin Rucker (Kristin), Ellyn’s daughter, was
interested in moving to a new home in Denver. Because of her
financial circumstances, Kristin could not afford to buy a home.
Her father, David Rucker (David),2 agreed that he would purchase a
home, and Kristin would rent it from him.
¶3 On the morning of June 5, 2011, David submitted a written
offer on a house in Adams County, Colorado. The house was an
unoccupied foreclosure acquisition owned by defendant, Federal
National Mortgage Association (FNMA). Defendant, Heter and
Company, Inc. (Heter), was FNMA’s listing real estate broker.
1 For purposes of clarity, we refer to Ellyn, her daughter Kristin,
and her former husband David Rucker by their first names.
2 David and Ellyn divorced in 1978.
1
¶4 Heter had placed a “For Sale” sign in the house’s front yard,
with the listing realtor’s name and phone number. Heter also
affixed a white sign to the front door of the house. The sign stated
“Warning” in English and Spanish in large print. In smaller print, it
stated, in both languages, “Theft, Trespassing or Vandalism Will Be
Prosecuted to the Full Extent Of the Law.” “Warning” was the only
word which could be read from the street in front of the house.3
¶5 On the afternoon of June 5, 2011, Kristin and Ellyn drove to
the house. A Heter realtor had shown Kristin the house before
David submitted the offer, but Ellyn had not yet seen it. Neither
Kristin nor Ellyn alerted FNMA or Heter of their visit or requested
permission to enter the property.
¶6 Kristin and Ellyn parked in the house’s driveway. After Ellyn
exited the vehicle, she walked through the gravel flower beds and
maneuvered around shrubs to look in the windows of the house.
Once Ellyn reached the front doorstep of the house, she began
walking back to the driveway along the front pathway. She lost her
3Our reference to the warning sign is provided for factual context
only.
2
balance when she stepped on an uneven part of the sidewalk, fell,
and suffered injuries.
¶7 Ellyn sued FNMA and Heter for the damages she suffered in
her fall. She alleged that she was an invitee to the property under
the PLA because the “For Sale” sign in the front yard constituted an
“express or implied representation that the public is requested,
expected, or intended to enter or remain on the premises.”
§ 13-21-115(5)(a), C.R.S. 2015. She also argued that she was an
invitee because she was “a person who enter[ed] or remain[ed] on
the land of another to transact business in which the parties are
mutually interested.” Id.
¶8 In a written order on March 17, 2015, the trial court
concluded that Ellyn was a trespasser. The court reasoned that the
“For Sale” sign did not make Ellyn an invitee because she “never
had the express consent of any ‘land owner’ to enter or remain on
the Property” and the “‘For Sale’ sign did not qualify as an implied
invitation to the public-at-large or more specifically to Ellyn to enter
the subject property.” The court did not address, in that order,
Ellyn’s second argument that she was an invitee because she was
present with regard to a business transaction.
3
¶9 Upon Ellyn’s request, the trial court certified its order for
immediate appeal under C.A.R. 4.2. A division of our court,
concluding the case was not ripe for interlocutory appeal, dismissed
the appeal without prejudice on June 5, 2015. The division noted
that Ellyn raised two issues (the business transaction and the “For
Sale” sign issues) before the trial court and a third (the pathway
issue) for the first time on appeal and that the trial court had only
ruled on the “For Sale” sign issue.4
¶ 10 Before the trial court, Ellyn requested that the court
reconsider her arguments concerning the business transaction and
“For Sale” sign issues. In the “For Sale” sign section of her
pleading, she contended that a paved pathway to a residential
property’s front door created an express or implied representation
that the public could enter the property. On July 21, 2015, the
trial court ruled that Ellyn was not an invitee and rejected her
business transaction and “For Sale” sign arguments.
4 Ellyn’s pathway argument contends that a paved pathway to a
residential property creates an implied representation that the
public is requested, expected, or intended to enter or remain on the
property. The pathway, warning sign, and business invitee
arguments are not before this court and nothing we decide is
intended to affect the trial court’s analysis of those issues.
4
¶ 11 Then, Ellyn requested that the trial court rule on the pathway
argument. On August 28, 2015, the court ruled against Ellyn on
that argument.
¶ 12 Again, upon Ellyn’s request, on October 5, 2015, the trial
court certified the issues relating to the “For Sale” sign and the
paved pathway for interlocutory appeal under C.A.R. 4.2. However,
the trial court declined to certify the business transaction argument
for interlocutory appeal.
¶ 13 In this appeal, Ellyn sought review of the business transaction
and “For Sale” sign issues. In an earlier order, we limited our
interlocutory review to the “For Sale” sign issue because the trial
court declined to certify the business transaction issue for
interlocutory appeal. We also concluded that we would not address
the pathway issue because Ellyn did not seek review of it.
¶ 14 We exercise our discretion pursuant to C.A.R. 4.2 to review
Ellyn’s contention that she was an invitee under PLA section
13-21-115(5)(a) because the “For Sale” sign constituted an “express
or implied representation that the public is requested, expected, or
intended to enter” the property.
5
II. The “For Sale” Sign Argument
¶ 15 Ellyn contends that she is an invitee because she entered the
property in response to an implied representation by FNMA that the
“For Sale” sign indicated that the public was requested, expected, or
intended to enter.5 We disagree.
A. Standard of Review
¶ 16 The trial court’s determination of the plaintiff’s PLA
classification is a mixed factual and legal question. Legro v.
Robinson, 2015 COA 183, ¶ 15. We will disturb the trial court’s
findings of fact only if they are clearly erroneous and unsupported
by the record. Id. We review de novo the court’s application of the
facts to the governing legal standards. Id.
¶ 17 Here we must interpret section 13-21-115(5)(a). Statutory
interpretation presents a question of law that we review de novo.
Corder v. Folds, 2012 COA 174, ¶ 7.
5 We do not address Ellyn’s contention that she had a greater
interest in being on the property than the public because David had
made an offer on the house and Kristin was interested in living in it.
This argument relates to the business transaction issue, which is
not at issue here.
6
B. Statutory Interpretation
¶ 18 In construing a statute, we ascertain and effectuate the
General Assembly’s intent. In re Miranda, 2012 CO 69, ¶ 9. We
apply the plain meaning of the statutory language, give consistent
effect to all parts of a statute, and construe each provision in
harmony with the overall statutory design. Id. If the statutory
language is ambiguous, we employ additional tools of statutory
construction. Id. We avoid interpretations that would produce
absurd results. Larrieu v. Best Buy Stores, L.P., 2013 CO 38, ¶ 12.
C. Applicable Law
¶ 19 The PLA’s central purpose is to determine private landowners’
liability to persons entering their land based on whether the entrant
is an invitee, a licensee, or a trespasser. § 13-21-115(1.5); Legro,
¶ 19. The PLA defines invitee, licensee, and trespasser as follows:
(a) “Invitee” means a person who enters or
remains on the land of another to transact
business in which the parties are mutually
interested or who enters or remains on such
land in response to the landowner’s express or
implied representation that the public is
requested, expected, or intended to enter or
remain.
(b) “Licensee” means a person who enters or
remains on the land of another for the
7
licensee’s own convenience or to advance his
own interests, pursuant to the landowner’s
permission or consent. “Licensee” includes a
social guest.
(c) “Trespasser” means a person who enters or
remains on the land of another without the
landowner’s consent.
§ 13-21-115(5). The trial court determines the status of the plaintiff
at the time of injury. See generally § 13-21-115(4); Legro, ¶ 15. A
landowner’s duty toward a plaintiff is determined by the category in
which the court places the plaintiff. § 13-21-115(3).
¶ 20 As stated above, no Colorado case has addressed whether a
“For Sale” sign creates an express or implied representation for a
plaintiff to enter a landowner’s property as an invitee.
D. Analysis
¶ 21 We conclude that “For Sale” signs, standing alone, do not
create an implied representation to strangers to enter the private
property of others. Ellyn does not argue that she had an express
invitation, unrelated to the signage, to enter the house. Therefore,
we only determine to what extent, if any, Ellyn had an implied
invitation to enter the property.
8
¶ 22 Ellyn argues that the trial court improperly required a
landowner to provide an express representation of permission
before a person can enter a property on which a “For Sale” sign is
posted because the court required a person to first call the listing
realtor to obtain permission to enter the property. We disagree.
The trial court did not require that only a landowner’s express
representation would allow Ellyn to enter the property.6
¶ 23 Ellyn next argues that the trial court erred by not concluding
that FNMA impliedly represented that she could enter the property.
The trial court relied on Wells v. Polland, 708 A.2d 34 (Md. Ct. Spec.
App. 1998), and Coddington v. Federal National Mortgage
Association, No. 3:12-CV-00481-AC, 2013 WL 4084071 (D. Or. Aug.
9, 2013) (unpublished opinion), to hold that when a “For Sale” sign
only contains the name and phone number of the listing realtor, the
sign is not an implied representation for a person to enter the land.
6 The court wrote that Ellyn did not have “express consent,” but we
discuss “express representation” following the language of section
13-21-115(5)(a), C.R.S. 2015. Ellyn, relying on Corder v. Folds,
2012 COA 174, ¶¶ 15-16, argues that FNMA gave its “consent” for
her to be on the property. But, Corder does not provide guidance in
interpreting the meaning of invitee here.
9
Rather, the trial court held the sign is merely an invitation to call
the realtor.
¶ 24 Ellyn argues that we should not rely on Wells or Coddington
because neither case interpreted a statute like the PLA. Instead,
she urges us to rely on Singleton v. Charlebois Construction Co., 690
S.W.2d 845 (Mo. Ct. App. 1985), and Holcomb v. Colonial
Associates, L.L.C., 597 S.E.2d 710 (N.C. 2004). We find Wells and
Coddington persuasive.
¶ 25 While none of these cases deals with a statutory premises
liability scheme, the common law definitions of “invitee” in Wells
and Coddington are similar to Colorado’s statutory definition of that
term. Compare § 13-21-115(5)(a), with Wells, 708 A.2d at 40
(explaining that a plaintiff can become an invitee through “implied
invitation”), and Coddington, 2013 WL 4084071, at *6 (explaining
that a plaintiff is an invitee if the landowner expressly or impliedly
led a visitor to “believe that [the landowner] intended visitors to use
the premises for the purpose that the person is pursuing and that
the use was in accordance with the intention or design for which
the premises were adapted or prepared”) (citation omitted). In
contrast, neither Singleton nor Holcomb interprets invitee similarly.
10
See Singleton, 690 S.W.2d at 847 (discussing business invitees
only); Holcomb, 597 S.E.2d at 716 (discussing lawful visitors only).
¶ 26 In Wells, 708 A.2d at 37-38, the defendant, the exclusive
listing agent for the property, had placed a “For Sale” sign in the
front window of a beach house. The plaintiffs, who were interested
in purchasing a beach house, decided to visit the property. Id.
They did not contact anyone to seek permission or otherwise notify
anyone of their intended visit. Id. After climbing a flight of stairs,
they peered into the home through the windows, and as they turned
to descend the stairs, the stairs collapsed, injuring them. Id.
¶ 27 The Wells court applied an objective approach to its analysis of
whether there was an implied invitation. Id. at 40. The court
stated such approach “gains its vitality from such circumstances as
custom, the habitual acquiescence of an owner, the apparent
holding out of premises for a particular use by the public, or the
general arrangement or design of the premises.” Id. (citing Crown
Cork & Seal Co. v. Kane, 131 A.2d. 470, 473 (Md. 1957)). The court
distinguished mere acquiescence, which did not constitute an
implied invitation, from direct or implied inducement, which did.
11
Id. In further rejecting that an implied invitation to enter the
property existed, the court stated:
It is unreasonable to suggest that every time
an owner or real estate company places a ‘sale’
sign outside a house, the owner or company
[is] ‘inviting’ people to come in . . . . To hold
otherwise would mean that anytime an owner
puts a property up for sale and posts a simple
‘sale’ sign in front of the property, the public-
at-large would be free to enter the property at
anytime [sic] of the day or night with the
benefit of being an invitee rather than a
trespasser.
Id. at 42.
¶ 28 We agree with this rationale. Rucker’s suggested construction
would lead to unreasonable results not warranted by Colorado’s
PLA. See Asphalt Specialties, Co., Inc. v. City of Commerce City, 218
P.3d 741, 746 (Colo. App. 2009) (we will not interpret the law in
such a way that leads to an absurd or unreasonable result).
¶ 29 In Coddington, 2013 WL 4084071, at *8, the court rejected the
plaintiff’s argument that a “For Sale” sign served as an invitation for
the public to enter the property as an invitee. Rather, the court
found that the posting of a “For Sale” sign provided notice to anyone
who saw the sign that the property was for sale and provided
information about whom to contact to schedule a viewing. Id. In
12
 addition, the Coddington court rejected the plaintiff’s argument that
she had an implied invitation to enter the property absent evidence
showing that the landowner customarily permitted potential buyers
to enter the property without prior notice to the landowner, the
plaintiff had knowledge of this custom, and the plaintiff relied on it
when she entered the property. Id.
¶ 30 Ellyn argues we should determine whether all the
circumstances objectively indicate that FNMA impliedly invited
prospective buyers to enter the property. Under the reasoning in
Wells and Coddington, we conclude there was no such implied
representation.
¶ 31 As noted in the trial court order, nothing in the record
indicates that FNMA had a custom of permitting people to enter the
property unaccompanied by a realtor. In fact, Heter stated in
depositions that prospective buyers were only allowed to enter
properties by appointment and accompanied by a Heter realtor.
Here, the posted “For Sale” sign, like that in Wells, simply indicated
that the property was for sale and provided contact information for
the listing agent. Other states that have addressed analogous
scenarios conclude similarly. See, e.g., Wilkie v. Randolph Tr. Co.,
13
55 N.E.2d 466, 467-68 (Mass. 1944) (“For Sale” sign in window of
property was not an invitation to enter onto the property, but
instead was an invitation to contact the listing agent); Mortg.
Comm’n Servicing Corp. v. Brock, 4 S.E.2d 669, 672 (Ga. Ct. App.
1939) (property listing advertisement in newspaper was not an
implied invitation for a reader to inspect the property without being
accompanied by a listing agent representative).
¶ 32 Ellyn argues that Holcomb and Singleton stand for the
proposition that when a house is for sale, a prospective home buyer
is not a trespasser as a matter of law. These cases do not support
that proposition.
¶ 33 In Singleton, 690 S.W.2d at 846, the plaintiff was injured when
he entered a partially constructed home that had a “For Sale” sign
in the front yard. The sign in Singleton, as here, simply gave the
real estate company’s name and phone number. Id. No one else
was present when the plaintiff entered the property. Id. However,
there was testimony that the defendant had allowed prospective
buyers to enter the property and the plaintiff was aware that other
prospective buyers had visited the property unannounced and
unaccompanied. Id. at 846-48. While the trial court did not
14
explicitly phrase it as such, this evidence established a custom
which impliedly represented to plaintiff that he was invited to enter
the property.
¶ 34 In Holcomb, 597 S.E.2d at 712-13, a company interested in
buying property for redevelopment hired plaintiff to prepare a
demolition estimate. When plaintiff visited the property to prepare
the estimate, he fell and was injured when large dogs loose on the
property lunged at him. Id. The Holcomb court concluded that
plaintiff was not a trespasser, but a “lawful visitor,” because the
owner had “placed a ‘For Sale’ sign on its property and had allowed
buyers and their agents to inspect the property.” Id. at 715-16.
While the trial court did not explicitly phrase it as such, this
evidence established a custom which impliedly represented to
plaintiff that he was invited to enter the property. Therefore,
Holcomb is factually distinguishable. Here, there was no evidence
that the buyers had any authority to inspect the premises without a
real estate agent present. Moreover, the determination in Holcomb
that plaintiff was a lawful visitor was premised on a jury verdict,
whereas here we have a legal question presented.
15
¶ 35 Finally, we will not address Ellyn’s contention that her status
could have changed from trespasser to invitee or licensee once she
was on the property because she raised this contention for the first
time during oral argument. See Bd. of Cty. Comm’rs v. City of
Greenwood Village, 30 P.3d 846, 849 (Colo. App. 2001).
¶ 36 Therefore, we conclude the trial court did not err in concluding
that the “For Sale” sign did not constitute an implied representation
to the public to enter or remain on the property, and, consequently,
Ellyn was a trespasser.
III. Conclusion
¶ 37 The trial court’s order is affirmed.
JUDGE HAWTHORNE and JUDGE BERGER concur.
16