case about the undisclosed sewer easement my client purchased land in park city utah it is undisputed that when he purchased the land he did not know about a series meant there and right to the middle of one of the l s in the proceedings below just a few weeks before trial was scheduled to begin the district court granted the defendant's motion for summary judgment dismissing all of my client's claims we are appealing the dismissal of two of those claims the claim for breach of contract and the claim for fraudulent non disclosure it's interesting to know that in making its ruling dismissing my client's claims the district court rebuilt in open court that it was quote uncomfortable with the result the quote is found on page seventy nine dollars of the hearing transcript where the judge said the court rules that the legal theories of the plaintiff cannot survive even though i am uncomfortable with the result well today we have the chance to fix that we raised numerous issues for appeal in our briefs there's no way i could go through all of those and the time allotted i think our opening greve does a fine job clearly laying out all the grounds for reversal in the time allotted i want to focus on two claims the breach of contract claim and the claim for fraudulent are the two issues and i'm not talking about all the seven issues that are itemized i'm going to focus on really just the heart of these two issues in the breach of contract claims we have a standard purchase contract for land in utah and there are two provisions that play in that the st one is section seven and this is part of the seller's disclosures a copy of the purchase contract is attached as exhibit one in our opening brief if you wanted all along but the seller's disclosure contract requires the seller to provide to the buyer a list of items the very last item is a blank item it says other with a blank line and what my client typed in as the buyer was the following words survey if one has been done so that incorporated into this contract a contractual requirement to provide to my client the buyer a copy of the survey if one has been done and we resolve any ambiguity against your draft language well i suppose you could if you think there's ambiguity the problem in this case your honor is that the court in the district court went on to impose requirements that don't exist the district court essentially said well what that means is a survey if one has been commissioned or paid for by the sellers that language isn't there it simply says in their survey of so provided but i think it's more important to read that section of the contract in connection with the seller's property disclosure condition for because there again inspections of the seller's property condition form it says this is paragraph sixty by the way are you aware i'm sixty six d are you aware of any surveys that have been prepared for the property it doesn't say in your possession or control it doesn't say that you've paid for it doesn't say that you personally commission it just says are you aware of any surveys that have been prepared for the property and the sellers check the box no that is undisputedly the wrong answer and here's how we know that if you look at the evidence in this case shortly after the sellers of the saltman trust purchased this property in two thousand and seven they filed an application with the local sewer district to try to relocate that sewer line they also filed for applications with the park city planning department for development approvals and in each of those four applications a copy of the survey was included  application filed with the sewer district to relocate the sewer line the record evidence was clear that all those applications mr saltman signed them they were not only just to relocate the sewer line but they were to get development approvals and the i mean he says you know he's not sure when the attachments were were added and so on so he may not have known least there's a there's a possibility of know about that but if he signed an application to relocate a sewer line i significant and if you didn't catch this on page eighteen of our opening brief on page eighteen on the opening breathe the applications that mr solomon himself signed contained a certification of verification where he says i have read and understood the because the language in the disclosure form does seem to contradict your interpretation of the contract in one respect ok because it says are you she say that it resolves what looks like and you know any ambiguity into well you know provide any survey means any in your possession because there was only three more days before closing anyway so you don't think it's a it's a reasonable when you combine the disclosure statement with the contractual provision even with what was added by your client that they weren't asking for some absolute disclosure but you know if you have it give it to us yeah at a reasonable interpretation no it is ok it is if you have it given to us but but i don't i don't think they have this they filed it and it was included in the very application that mr saltman sign so it's it would i don't know how you can make that leap of logic to say ok it's undisputed that mr saltman signed the application which contained the survey he represented to the city that the contents in the application were true correct including the survey but he didn't have the survey in his possession sufficient to disclose it to the buyer especially on summary judgment when reasonable inferences are supposed to be construed in favor of the nonmoving party my client that should have been construed as an difference valid evidence to support the conclusion that mr saltman had the survey at least he was aware of it and was aware of it exactly engineering firm said it i can't remember whether i've done it but i did it in that specific case and on specific memory but that's my practice i didn't write as i don't understand what it was that not presented to the judge went out to the judges out see how the judge said there's no evidence that they knew of it your honor that's why we're here because we were shocked and in my view when you look at the undisputed evidence it's just inexplicable how the trial judge could say that as a matter of law th solomons didn't breach the contract when they knew about the survey and they didn't disclose it now that's just the survey the key part to the survey is that survey clearly shows the series ok we also have this other language in the reps in the purchase contract i'm sorry section ten point two which is a very important requirement under utah law because it imposes a duty on the sellers an affirmative duty on the sellers to disclose defects and here's the and here's the key language in ten  the seller has to disclose in writing to the buyer defects in the property known to the seller that materially affect the value of the property that cannot be discovered by a reasonable inspection by an ordinary prudent buyer and that's what has a long sentence has to disclose in writing to the buyer defects in the property that they know about the seller knows about that materially affect the value and cannot be discovered by reasonable inspection of an ordinary prudent buyer so if it's not a defect stop right there well i beg to differ slightly because here here's what goes on to say if it materially effects the value and it cannot be discovered by a reasonable inspection by ordinary print buyer then it is a defect that has to be disclose we're not talking about construction in fact claims we're talking about disclosure standards so that a buyer here's the key a buyer is entitled to make an informed decision about the property he or sh to see if there's any defect in title and to make you whole if there is one so in that light in that given that that's it maybe it's not true in that jurisdiction but it's absolutely standard practice in my understanding to get title insurance and given that i would think that the natural inference is you're not talking about title defects in that provision this is a defect because it is actually a physical pipe in the property that it's underground so you can see it a reasonably prudent buyer is not going to see it by inspecting the property because it's underground so you can't see it so it  affects the develop ability of the property that the trial court judge was correct when saying i'm not he said i'm not going to rule that all these months are the effects but in this case for this property this particular sewer easement was a defect because impaired the ability to develop or construct anything on top of that sewer line so that's where the defect comes in your honor is that it it's a condition that's not evident from inspection it reduces the by the property and it impairs your ability d to build on the land so that's my st point the nd point is we're dealing with a very rare situation this is a very mixed race where even though this easement the series meant had technically been recorded in the sense that it had the legal description of the property and it was filed with the county it was not indexed correctly it was actually indexed against a piece of property an entirely different city block so anybody that did a title search on this property would not find the series and in fact it was mis reports here's why this is significant the court's ruling below basically said constructive notice constructive recording notice trumps everything because this easement was recorded albeit index incorrectly albeit the fact that no title company can find it that act of recording trunk's you visser rates the duty of the seller to disclose information that the buyer could not readily find elsewhere that was the flaw in the ruling now i see i'm about a time so i'll just make one last statement here the last problem with the court's ruling is that the court adopted the defendant's proposed memorandum decision without making any effort to revise that memo decision to comport with the actual findings and the actual rulings that the district court mate and our brief goes through it lists three pages worth of rulings that are contained in the memo decision that the court entered because it was prepared by the defendants that were not even close to being part of what the court ruled that at the hearing that's a major problem thank you  that only defects in the property being sold need to be disclosed and that's both under section ten dollars of the contract and under the fraudulent nondisclosure case law property the way that the party may have wanted to with three residences or more and works only one person knew about this that could solve it and that is the seller and the sell restrictions on development a piece of property in tangible restrictions like easements like whether it's disclose or not disclosed is not the kind of physical defect of the we're talking about  member the the contract between the parties and frankly the law tries to strike a balance between disclosure and and sort of the as his characteristics of the property where does it say  physical and if it doesn't say physical defect why would we get it that way now it says it in section ten point two your owner of the real estate purchase contract i'm reading agrees to disclose it in writing to section is condition of the property and it begins seller acknowledges and agrees that in reference to the physical condition of the property some are greece described in writing to  defects in the property so we're talking about physical conditions in the context of the real estate purchase contractors there's no question about it well the land he goes up as a coal object so why in the physical description it's not a defect in the condition in the physical condition of the property it's it is at best an intangible condition of the property so i mean i think i think the best answer the question is we've no one on either side of this case found a single case across the country that characterized an easement as a defect that had to be disclosed a real estate transaction just hasn't ever happened before this is an unprecedented interpretation yand and it's inconsistent with section ten dollars of the agreement and it's inconsistent with every utah case in the case anywhere in the country that characterize it as and easement as a defect in the condition of the property that had to be disclosed either under a contract or under a common law had your there's a false statement in the disclosure for it's do you know are there any well nobody asked are you aware of any surveys that have been prepared for the property or in your joint property your property there were were interested in things other than the current physical condition of the property physical defects of the property if that was intentionally false why isn't that a breach of contract a sure well if it were intentionally false then it could be fraud that the fraud claim has been dismissed and has not been appealed it the question then becomes is that a breach of contract and we have two arguments there your honor one the real state  the seller disclosure form that included the no answer to the question are you aware of any service is didn't create a contract to contract question because right underneath the title of the doc judge thought all you had to do was answer you don't have to answer truthfully and i'm not going to buy that well if you don't answer truthfully then you're guilty of fraud you know that your debt now is there yourself ok like why would you ever ask somebody past the debate about whether it's a reach a contract or not and let's focus on whether the answer was truthful your honor because it's just a court found that's that's just a court found it was undisputed that the answer was honest that the trust had no knowledge of this sort of thing now what but what let's make clear what the district court was saying not that the judge found that they didn't know maybe they didn't know the question is was there enough evidence for a jury to finding my head and we already have that the survey being attached to a request for a sewer relocation but also can we rely on the general practice and course of business habit of the engineering firm that said i normally sit down and help with the client about it is ye is no the reason is that st of all there is no evidence that the that the survey was attached to the application to relocate the siller just not it's just not there all we know is that mr saltman signed the application with the then owner of the property t p partners to relocate the sewer but we don't know what was attached to that application and there were talking with two different applications mr graham and brought up the application to relocate the sewer which is an application of the syria district there's no evidence about the content of that application in the record the application of park city that th predevelopment application of park city is a different application and all we know about that application is that mr solomon signed the signature page of that application and when he was deposed about that he said i don't recall seeing anything else besides signature page and what we do know is that that survey that eventually ended up in the park city files you can actually that pre development application was submitted by the architects there's a transmetal letter by which the architects send the survey to park city in there's no evidence that anybody representing the trust or mr solomon who signed the application ever saw the survey and the evidence was to the contr who was mr solomon son in law and was working for the trust at the time and saw the survey there's no question that that is undisputed the question then becomes whether m knowledge of the survey in two thousand and seven is imputed to the trust in two million fifty two thousand and fifteen when it's filling out this seller disclosure form about awareness of the survey and the and the court found that the answer that question is no and the and the it was an agency law issue and i know i know your honor is very familiar with agency law and the bottom line here is that the th me this is my understanding that he says as far as deposition that he didn't specifically recall reviewing the subdivision replication packages with defendants but it is typical business practice to review property surveys with clients before filing now what was he referring to there because i think we can  i think that's sufficient evidence for a jury to infer that he actually did in that particular case assuming that is that you're not old or why not it doesn't because st of all he didn't say he refused to serve it with clients he said reviews the application packet i think were his what was the phrase he used and we don't we don't know what he meant by application packet because nobody asked him nd of all i did ask him who did you talk with about the survey and his answer was the only person i recall talking with about the survey was jeff warbl the survey is should be imputed to the trust when it's filling out this form eight years later and the agency's analysis on that issue is is carefully planned set forth in the brief and i think th got it right that the only person who saw the survey that we know of is jeff were below and his knowledge can't be imputed to the trust of the circumstances here remember the survey was unimportant to anybody in two thousand that's correct so you know it's we haven't really touched on the fraudulent nondisclosure claim at all and it's it's it's well briefed and i don't think we need to really get into too much about it i think the bottom line there what is were below does he have any connection with the trust itself is he a beneficiary or is he  is not a beneficiary of his not a trustee is not a member of the trust in any fashion what he is is mr saltman son in law and and there's no question that he was working on behalf of the trust in two thousand and seven sort of develop these ideas about how the property might be developed what buildings might be built on the property but in that context the survey was not important to him what was important to him is what the buildings look like what could fit on the property and yes the easement wasn't porton to i'm but not the survey what we're talking about here in the disclosure form is the survey not the easement it's an important distinction survey yes it did but nobody knew that until this lawsuit nobody nobody except perhaps the architects until this and because the certainly just wasn't a big deal to anybody in two thousand fifteen when when the survey was eventually brought to the fore in this lawsuit and the fact that it should be used when it became a big deal but when mr maher can tell asked for a copy of the survey in his in the real estate purchase contract he didn't know the survey showed the easement nobody know it because nobody had seen a survey except the architect and mr were below is acids deposition did you notice that the ease shown on the survey he said not at the time not until you showed it to me right now in two thousand and eighteen my deposition that i notice that the use of the shown in the survey just wasn't a big deal the time my time is up points mr we're a low is certainly married to a beneficiary of the trust so if you're looking for a connection that's where that is now let's be realistic about the question of why would mr saltman file an application to relocate t he would only do that because he knew the location of the sewer line and realized that it was such an impediment to building and development that he wanted to change that location now the survey was clearly included in the packets that were filed with park city for the plat approvals the record does not specifically say whether the survey was included in the application to relocate the sewer line but that application to relocate the series mint is in the appendix at page two and forty nine you can look at it for yourself but the clear reference terry has he obviously knew the location of the serial line because he wanted to change how else would you know the location of the sewer line it wasn't by looking at the survey that's what showed it and my client never got the opportunity to look at the survey so that he could see the sewer line before he purchased it sears say he would have had to see a survey to know where the sewer line is when he said to me that you know all i'm saying is if the saltman said fulfill their contractual duty to disk to provide the survey then he would have seen the survey and seen the sewer line it would have seen that there's a sewer line running right through the middle of what you're saying saw him and must have known of the survey because he knew that argument made to the district court we made all of these arguments to the district court i can't i can't sitting here today tell you if i made that word for word argument but there's no question i made the argument that mr stallman filed applications which he signed