Hussen W. Butta, Appellant,
Mortgage Electronic Registration System, Inc., defendant and third party plaintiff,
Collopy & Saunders Real Estate, Inc. d/b/a Re/Max Results, third party defendants, Ludmilla Eremeyeva, third party defendant, Respondent.
Hennepin County District Court File No. 27-CV-11-12183
Daniel W. Schermer, Daniel W. Schermer, P.A., Minneapolis, Minnesota (for appellant)
Paul E. D. Darsow, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota (for respondent Mortgage Electronic Registration System, Inc.)
Sandra J. Grove, Law Office of Stilp & Grove, Golden Valley, Minnesota (for third party defendant Collopy & Saunders Real Estate, Inc.)
Richard A. Lind, William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, Minnesota (for third party defendant Ludmilla Eremeyeva)
Considered and decided by Peterson, Presiding Judge; Chutich, Judge; and Smith, Judge.
Appellant Hussen Butta challenges the district court's grant of summary judgment for respondent Mortgage Electronic Registration System, Inc. (MERS). Butta contends that the district court erred in concluding that MERS did not have a duty to inspect, repair, or warn Butta of a hazardous condition on its property. Because MERS did not have actual or constructive knowledge of any unreasonably dangerous condition on the property and because, in the alternative, any danger was open and obvious, MERS did not owe a duty to Butta. We affirm the grant of summary judgment for MERS.
In 2007, MERS foreclosed on and became the owner of a home located in Brooklyn Center. MERS entered into a listing agreement with third-party defendant Collopy & Saunders Real Estate Inc. doing business as Re/Max Results (Re/Max) under which Re/Max agreed to market and sell the property. The listing agreement provided that Re/Max was to notify MERS of any hazardous conditions on the property, inspect the property weekly, and report conditions affecting marketability. The house was to be sold "as is" and MERS made no warranties as to the condition of the property.
An inspection of the house occurred on June 5, 2008, and the inspector noted that the ceilings were in "average condition" but that a lower-level ceiling was "damaged by water." The inspection report did not include any comments or concerns about the condition of the garage, the garage ceiling, or the attic. A damage report was also prepared after an inspection on June 9, 2008, and it noted water damage in a lower-level ceiling but did not list any damage in the garage.
On July 3, 2008, Butta's brother went to view the Brooklyn Center property as a prospective purchaser. Butta accompanied his brother to the house because, as his brother testified, Butta "owns a house, he knows what need[s] to be fixed, and what some of the things need to be inspected before you purchase the house." Besides being a homeowner himself, Butta did not have any specialized expertise or qualifications in home inspection. Also present at the inspection were Ludmilla Eremeyeva, the brother's real-estate agent who was associated with Re/Max, and Pedro Martinez, a contractor or inspector that Eremeyeva had invited to provide estimates for any necessary repairs.
While viewing the house, the group noticed water damage in a bathroom ceiling. Martinez and Butta decided to try to access the space above the bathroom to determine whether the water was coming through the roof or if the plumbing was leaking. Butta ...