                IN THE SUPREME COURT, STATE OF WYOMING

                                         2013 WY 37

                                                            OCTOBER TERM, A.D. 2012

                                                                    March 27, 2013

SARAH FERRELL,

Appellant
(Plaintiff),

v.                                                   S-12-0174

EARL KNIGHTEN,

Appellee
(Defendant).

                  Appeal from the District Court of Hot Springs County
                         The Honorable Robert E. Skar, Judge

Representing Appellant:
      Mary L. Scheible, Thermopolis, WY.

Representing Appellee:
      Michael S. Messenger and James A. Michel Jr. of Messenger and Overfield, P.C.,
      Thermopolis, WY.

Before KITE, C.J., HILL, VOIGT, BURKE, and DAVIS, JJ.




NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.

[¶1] Appellant Sarah Ferrell challenges an order dismissing her professional negligence
claim against a real estate agent who represented the sellers in Ferrell’s 2001 purchase of
a commercial property. On appeal, Ferrell claims that the agent was negligent in failing
to provide a property disclosure statement. We dismiss and explain hereinafter.

                                           ISSUE

[¶2]   Ferrell presents one issue:

              Whether a realtor acting as seller’s agent has a duty of
              care to the buyer.

                                          FACTS

[¶3] On January 31, 2001, Ferrell, along with her sister and brother-in-law, offered to
purchase a commercial property in Thermopolis, Wyoming. Appellee Earl Knighten was
the real estate agent who prepared the offer and represented himself as the “Broker
working with the Buyer as [Seller’s Agent].” The sellers (Jerry and Nancy Slagle)
accepted the offer to purchase. Knighten was also the tenant of the building at issue.

[¶4] On February 5, 2001, the sellers prepared a property disclosure statement in
compliance with the contract requirement. Opinions diverge about what happened next.
Knighten claims that he provided the buyers with the property disclosure statement prior
to closing, but Ferrell argues that she did not receive a copy of the disclosure statement
until June of 2010, during litigation in a separate case. In any event, the disclosure states:
“Foundation wall on west side moist when it rains for prolonged periods.” Ferrell claims
that she hired a housing inspector to examine the building prior to closing, but the
inspector did not detect a moisture problem with the foundation and closing was held on
April 5, 2001.

[¶5] In 2003, Ferrell opened a health food store on the property and in 2004 she
became the sole owner of the property. Two years later, in October of 2006, Ferrell
discovered three inches of water in the basement of the building. The water had leaked
through the west wall of the foundation of the building. A resulting investigation
revealed an irrigation pipe on an adjacent property had ruptured and was the source of the
water leak. Also, the investigation revealed that the west wall of the property was
originally built as an interior wall shared with another building which was demolished in
1991 after a fire. That demolition converted the interior wall of Ferrell’s building into an
exterior wall.




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[¶6] Nearly four years passed and in January of 2010 Ferrell filed suit against Fred C.
Hanson Construction, the company that demolished the adjoining building. Ferrell
claimed that Hanson had not properly protected and sealed the west wall of her building
against moisture during the conversion, and now claims that it was during discovery in
that case when she first received a copy of the property disclosure statement. However,
during that case the sellers’ son, Steve Slagle, executed an affidavit stating that the buyers
were in fact provided a copy of the property disclosure statement and, prior to closing,
they were verbally advised of the basement water issues. That case was resolved in
summary judgment in favor of Hanson. The court ruled that the statute of limitations
began to run on February 5, 2001, when the sellers completed the property disclosure
statement.

[¶7] In January of 2012, Ferrell filed a complaint against Knighten, alleging that he
was negligent in failing to provide the property disclosure statement. A hearing was held,
whereafter the district court found that Ferrell’s causes of action should be dismissed
with prejudice on account of the two-year statute of limitations having expired. In a final
attempt to save her lawsuit Ferrell filed a motion to set aside the dismissal. A second
hearing was held and Ferrell’s motion was denied. In its subsequent order the district
court acknowledged that Knighten had a duty to deliver the disclosure statement but
nonetheless again held that dismissal was properly based upon the court’s previous ruling
on the statute of limitations. This appeal followed.

                                      DISCUSSION

[¶8] Ferrell argues on appeal that the district court erred in ruling that Knighten had no
duty to disclose or provide the property disclosure statement. She relies on Wyo. Stat.
Ann. § 33-28-303(c), which provides that a seller’s agent owes no duty to a buyer
“except that a licensee [Agent/Knighten] shall disclose to any prospective buyer all
adverse material facts actually known by the licensee.” She contends that Knighten’s
withholding of the disclosure statement was a breach of his duty to the buyers and
because of that, her claim against Fred C. Hanson Construction was not timely filed.
Furthermore, she asserts that because Knighten conducted his business in the building
immediately prior to her occupancy there are material issues of fact regarding what
Knighten knew about the moisture problem notwithstanding the disclosure statement.

[¶9] Knighten responds that there was no breach of duty, but regardless, the statute of
limitations has run on any failure to provide the sellers’ property disclosure statement to
the buyers.

[¶10] Wyo. Stat. Ann. § 33-28-303(c) (LexisNexis 2011) states as follows:

                     A licensee acting as a seller’s agent owes no duty or
              obligation to the buyer, except that a licensee shall disclose to


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                any prospective buyer all adverse material facts actually
                known by the licensee. The adverse material facts may
                include adverse material facts pertaining to the title and the
                physical condition of the property, any material defects in the
                property and any environmental hazards affecting the
                property which are required by law to be disclosed. The
                licensee acting as a seller’s agent shall not perpetuate a
                material misrepresentation of the seller which the licensee
                knows or should know is false.

After reconsideration and in light of the foregoing statute, the district court acknowledged
that Knighten did in fact have a duty to Ferrell. In its November 2012 Order
Reconsidering Dismissal with Prejudice, the court wrote that Knighten “had a duty to
[Ferrell] to deliver … Seller’s Disclosure Statement.” In light of the statutory language,
coupled with the district court’s realization, Ferrell appears to be correct that Knighten
owed Ferrell a duty.

[¶11] Unfortunately for Ferrell, the duty issue is not dispositive on appeal. Instead, this
case turns on the two-year statute of limitations, which Ferrell does not challenge on
appeal.1 In Serda v. Dennis, 2004 WY 141, ¶¶ 5-6, 100 P.3d 860, 861 (Wyo. 2004), we
addressed this same issue:

                       Of more importance is what the Serdas do not
                challenge. They do not take issue with the jury's finding that
                they did not suffer any damages. The jury finding on damages
                is thus conclusive. Rosics v. Heath, 746 P.2d 1284, 1287
                (Wyo. 1987) (“Appellant has never challenged this aspect of
                the Wyoming court’s findings, and therefore, we deem it
                conclusive.”). Because the jury determined that the Serdas
                suffered no damages, any issue regarding liability is moot.
                       ....
                       The question of liability is irrelevant if there are no
                damages. No decision this Court might reach on the issues
                presented will affect the ultimate outcome of the case sub
                judice - zero recovery. This Court will not consider an appeal
                when its decision can have no practical effect. In re SNK,
                2003 WY 141, ¶ 18, 78 P.3d 1032 (Wyo. 2003) (quoting

1
   After Knighton raised the statute of limitations as an alternative ground for affirmance in his brief,
Ferrell then addressed the merits of that question in a reply brief. “Presenting argument in a reply brief is
not equivalent to framing the issues in an opening brief. A reply brief is not a second chance to raise an
issue or present argument that the appellant had the responsibility, but failed, to address in its opening
brief.” Ultra Resources, Inc. v. McMurry Energy Co., 2004 WY 121, ¶ 11, 99 P.3d 959, 963 (Wyo.
2004).


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              Wyoming Bd. of Outfitters & Prof’l Guides v. Clark, 2002
              WY 24, ¶ 9, 39 P.3d 1106 (Wyo. 2002)). “When the
              determination of a matter is sought which, if provided, cannot
              have any practical effect on the existing controversy, the case
              is moot,” and dismissal of the appeal is the appropriate
              response by this Court. McLain v. Anderson, 933 P.2d 468,
              472 (Wyo. 1997). Appeal dismissed.

[¶12] Here, the district court’s independent ruling that the statute of limitations had run
trumps its first erroneous ruling on the question of duty. Because the district court’s
statute of limitations ruling goes unchallenged, and because that ruling provides an
independent ground for dismissal, Ferrell’s duty claim is consequently moot. See Serda,
supra; see also Ultra Resources, Inc. v. McMurry Energy Co., 2004 WY 121, 99 P.3d
959 (Wyo. 2004).

              Since Ultra failed in its opening brief to designate or argue
              the issue of the propriety of the holding by the district court
              that it contractually waived its right to seek judicial review of
              the arbitration award, the holding is uncontested. “The points
              presented in this court on behalf of the plaintiff in error are
              very limited, and it is, of course, elementary that points not
              urged in this court are deemed to be waived.”

Id. ¶ 13, 99 P.3d 964 (citation omitted). In accord with Serda and Ultra Resources, we
dismiss this appeal due to Ferrell’s failure to challenge the statute of limitations ruling.

                                     CONCLUSION

[¶13] Due to Ferrell’s failure to challenge the statute of limitations ruling by the district
court, this case is dismissed.




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