GOLDEN, Justice.
[¶ 1] In July 2008, Monica Claman (Claman) purchased a house in Rock Springs, Wyoming, from Jean Popp (Popp). In September 2008, Claman filed an action against Popp based on subsidence-caused defects in the house. The district court entered summary judgment against Claman on her breach of contract and negligent misrepresentation claims, and following a bench trial, it entered judgment against her on her fraudulent inducement claim. We affirm.
[¶ 2] Claman presents the following issues on appeal:
[¶ 3] In 1970, Popp and her husband purchased a house located at 517 Walnut Street in Rock Springs, Wyoming. They lived there together until 2007, when Mr. Popp passed away. In 2008, Popp decided to sell the property so she could move to Elko, Nevada, to be closer to her son and his family.
[¶ 4] The house at 517 Walnut Street is located in an area of Rock Springs that has been designated as a subsidence area, with at least some of the subsidence in the area caused by abandoned mines that are under the jurisdiction of the Wyoming Department of Environmental Quality (DEQ). During the time that they lived at 517 Walnut Street, Popp, or Popp and her husband, submitted two claims to the DEQ Subsidence Insurance Program. Following the first claim on August 12, 1993, a DEQ claims adjuster inspected the property. The claims adjuster identified subsidence damage to the property, but he concluded that the damage was not attributable to mine subsidence and was therefore not a covered claim. He presented the subsidence damage in a list of thirteen required repairs to the home ranging in cost from a low of $25.00 and a high of $205.00, for a total cost of repair of $1,197.40.
[¶ 5] On December 14, 1993, the Department notified the Popps that their subsidence claim was denied. It explained:
[¶ 6] Popp's second DEQ claim was not a claim for damages, but was instead an application for subsidence insurance submitted in response to the following October 2, 2007, notice from the DEQ:
[¶ 7] Popp submitted her subsidence insurance application on October 13, 2007, followed by a "Property Loss Claim Form," dated November 9, 2007. The Property Loss Claim Form identified minor existing subsidence damage to the property and noted that a report would be provided by Wilbert Engineering, Inc., the engineering firm that inspected the property pursuant to a contract with DEQ. Wilbert Engineering provided DEQ a "Pre-Policy Inspection Report" based on the firm's inspection of the Popp property on October 24, 2007. That report identified a
[¶ 8] In the spring of 2008, after she made the decision to sell her home, Popp hired realtor Mary Manatos of High Country Realty to assist with the sale. On April 29, 2008, in conjunction with the property listing, Ms. Manatos instructed Popp to complete a document entitled "Seller's Property Disclosure to Prospective Buyers" (Property Disclosure). Included in the questions presented by the document was the question, "Does the property or neighborhood have any known or suspected subsidence problems?" Popp answered the question by checking the box marked "yes." She did not provide additional information concerning the subsidence issues or reference the submissions to DEQ regarding the property. Also included in the questions presented by the document was the question, "Are there any structural problems with the improvements?" to which Popp responded by checking the box marked "no."
[¶ 9] Popp signed the Property Disclosure on April 29, 2008. Her signature appeared below the following acknowledgement:
[¶ 10] On April 29, 2008, Ms. Manatos listed the Popp property for sale on the Multiple Listing Service (MLS). The MLS listing provided a general description of the property and included an attached copy of the Property Disclosure. The listing described the property as a single level home with no basement and did not indicate whether the property had a crawlspace.
[¶ 11] On May 27, 2008, Claman viewed the Popp property for the first time with her own realtor, Maria Davis of Coldwell Banker Carrier Realty. Popp was present for the initial walk-through, which lasted approximately an hour. Neither Claman nor Ms. Davis asked Popp any questions concerning the property's condition during that first visit.
[¶ 12] On May 30, 2008, Claman offered to purchase the Popp property for the full asking price of $168,900.00, and Popp accepted the offer. Claman and Popp then executed on that same date a "Contract to Buy and Sell Real Estate" (Contract). The Contract specified a closing date of June 30, 2008, and authorized Claman, as the Buyer, to have the property inspected on or before June 15, 2008.
[¶ 13] Under the section of the Contract governing the property's condition, Section X.A.3 provided:
Immediately following Section X.A.3, Sections X.B.1 and X.B.2 of the Contract disclaimed any Buyer reliance on Seller's representations:
[¶ 14] Under the section of the Contract governing Buyer inspections, the Contract, in Section XII.A, authorized the Buyer to obtain "electrical, mechanical, structural, air quality ..., environmental ..., and/or other inspections of the Property by qualified professional inspectors and/or engineers[.]" Section XII.C concluded this provision with the following waiver:
[¶ 15] The Contract ended with a consents and acknowledgements section, Section XVIII.A, which contained the following merger clause:
[¶ 16] On June 14, 2008, Claman had the Popp property inspected by Richard Wright of Rocky Mountain Home Inspection Services. In his inspection report, Mr. Wright described the property's interior as in "good/ fair overall condition with small repairs needed." He made the following additional comments concerning the property:
[¶ 17] On July 10, 2008, the parties closed on the property. Claman took possession of the property on that same date, and shortly after that, while working in her yard, Claman was visited by an individual who identified himself as Harry Moore. Mr. Moore informed Claman he was an engineer and was investigating a claim Popp had made for dynamite compaction damage. Following her conversation with Mr. Moore, Claman contacted DEQ and obtained copies of its documentation relating to the property. She thereafter hired a structural engineering firm, Reeve & Associates, Inc., to prepare a structural assessment of the property. Following its assessment of the property, Reeve & Associates submitted a report to Claman that detailed the following findings and conclusions, with the references to attached photographs omitted:
[¶ 18] On September 10, 2008, Claman filed a Complaint against Popp alleging claims for breach of contract, negligent misrepresentation, and fraudulent inducement. Claman's specific allegations were that the property was not in the condition represented by the Property Disclosure, and, in particular, the foundation was "completely broken." Claman alleged she would not have purchased the home if she had been informed of the defects or if she had been informed of the submissions to the DEQ concerning property subsidence. Through her Complaint, Claman sought damages of $300,000 to correct the property's structural defects, or, in the alternative, rescission of the Contract.
[¶ 19] On December 17, 2009, Claman filed an Amended Complaint, adding Richard Wright and Rocky Mountain Home Inspection Services as defendants. Claman eventually settled her claims against the inspector and his company, leaving only her claims against Popp. On October 1, 2010, Popp moved for summary judgment on all of the claims, and on February 14, 2011, the district court entered an Order Granting Partial Summary Judgment. In granting partial summary judgment, the district court found no breach of contract based on the Contract's merger clause and on its provision disclaiming any buyer reliance on seller representations. The court granted summary judgment on Claman's negligent misrepresentation claim based on the same Contract provisions, ruling that the Contract's merger and disclaimer clauses barred a claim for negligent misrepresentation. The court found issues of material fact existed on the question of fraudulent inducement, and it thus denied summary judgment on that claim.
[¶ 20] The district court held a bench trial on the fraudulent inducement claim on June 21 and 22, 2011, and on July 7, 2011, it issued its Findings of Fact, Conclusions of Law, and Order rejecting the claim and finding in favor of Popp. Claman thereafter appealed the Order Granting Partial Summary Judgment and the Findings of Fact, Conclusions of Law, and Order.
[¶ 21] We consider the district court's rulings on Claman's breach of contract and negligent misrepresentation claims under our summary judgment standard of review. Motions for summary judgment come before the trial court pursuant to Rule 56(c) of the Wyoming Rules of Civil Procedure, which provides that
Formisano v. Gaston, 2011 WY 8, ¶ 3, 246 P.3d 286, 288 (Wyo.2011). We review a grant of summary judgment as follows:
Lindsey v. Harriet, 2011 WY 80, ¶ 18, 255 P.3d 873, 880 (Wyo.2011).
[¶ 22] Because Claman's fraudulent inducement claim was tried to the court, we apply the following standard of review:
Piroschak, ¶ 7, 106 P.3d at 890. Findings may not be set aside because we would have reached a different result. Harber v. Jense [Jensen], 2004 WY 104, ¶ 7, 97 P.3d 57, 60 (Wyo.2004). Further,
Id.
Pennant Service Co., Inc. v. True Oil Co., LLC, 2011 WY 40, ¶ 7, 249 P.3d 698, 703 (Wyo.2011) (quoting Hofstad v. Christie, 2010 WY 134, ¶ 7, 240 P.3d 816, 818 (Wyo.2010)) (some citations omitted). We review the district court's conclusions of law de novo. Lieberman v. Mossbrook, 2009 WY 65, ¶ 40, 208 P.3d 1296, 1308 (Wyo.2009).
[¶ 23] When summary judgment is entered based on interpretation of a contract, the following standard of review applies:
Union Pacific Railroad Co. v. Caballo Coal Co., 2011 WY 24, ¶ 13, 246 P.3d 867, 871 (Wyo.2011) (quoting M & M Auto Outlet v. Hill Inv. Corp., 2010 WY 56, ¶ 12, 230 P.3d 1099, 1104 (Wyo.2010)).
[¶ 24] Claman asserts that Popp breached the parties' Contract by failing to disclose the property's structural defects. She contends this failure occurred both in Popp's negative response to the Property Disclosure's question concerning structural problems and in Popp's failure to disclose subsidence claims that had been submitted to the DEQ. The district court rejected Claman's breach of contract argument. Based on the court's interpretation of the Contract's language, which it found to be unambiguous, the court concluded:
[¶ 25] On appeal, Claman argues the district court erred in finding the Contract's language unambiguous. She contends that conflicting Contract provisions, and the parties' disagreement over the meaning of those provisions, create an ambiguity and a question of material fact precluding summary judgment.
[¶ 26] In keeping with our settled rules of contract interpretation, we begin our analysis of any contract with the document's plain language. Hunter v. Reece, 2011 WY 97, ¶ 17, 253 P.3d 497, 501-02 (Wyo. 2011).
Hunter, ¶ 17, 253 P.3d at 502 (quoting Amoco Prod. Co. v. EM Nominee Partnership Co., 2 P.3d 534, 540 (Wyo.2000)).
[¶ 27] "When contractual language is clear and unambiguous, the interpretation and construction of contracts is a matter of law for the courts." Hunter, ¶ 18, 253 P.3d at 502 (quoting Thorkildsen v. Belden, 2011 WY 26, ¶ 8, 247 P.3d 60, 62 (Wyo. 2011)). Whether a contract is ambiguous is a matter of law for the court to decide, and disagreement among the parties to a contract as to the contract's meaning does not mean that contract is ambiguous. Ultra Resources, Inc. v. Hartman, 2010 WY 36, ¶ 23, 226 P.3d 889, 905 (Wyo.2010). Because we use an objective approach to interpret contracts, evidence of the parties' subjective intent is not relevant or admissible in interpreting a contract. Hunter, ¶ 16, 253 P.3d at 501.
[¶ 28] Our rules of interpretation require that we interpret a contract as a whole, reading each provision in light of all the others to find their plain meaning. Arnold v. Ommen, 2009 WY 24, ¶ 40, 201 P.3d 1127, 1138 (Wyo.2009); see also Caballo Coal Co. v. Fid. Exploration & Prod. Co., 2004 WY 6, ¶ 11, 84 P.3d 311, 314-15 (Wyo.2004). We presume each provision in a contract has a purpose, and we avoid interpreting a contract so as to find inconsistent provisions or so as to render any provision meaningless. Scherer v. Laramie Reg'l Airport Bd., 2010 WY 105, ¶ 11, 236 P.3d 996, 1003 (Wyo.2010).
[¶ 29] Using these rules of interpretation, we turn to Claman's argument on appeal. Claman's specific contention is that the Contract's Property Disclosure provision conflicts with the Contract's provision disclaiming any buyer reliance on seller representations and its warranty disclaimer provisions. She argues that the conflicting contract language, coupled with the parties' disagreement over which provision should control, means the Contract is ambiguous. As we noted above, the parties' disagreement as to the meaning of a contract's language does not alone render that contract ambiguous. See Ultra Resources, Inc., ¶ 23, 226 P.3d at 905. Instead, we must consider the Contract as a whole and the relationship between each of its provisions, and only if the Contract's plain meaning cannot be determined do we find the Contract to be ambiguous.
[¶ 30] This Court has on a number of occasions interpreted real estate contracts containing merger clauses and disclaimers acknowledging that the buyer is not relying on representations by the seller. We have explained the meaning and effect of such provisions as follows:
Hulse v. First American Title Co. of Crook Cty., 2001 WY 95, ¶ 54, 33 P.3d 122, 139 (Wyo.2001); see also Foxley & Co. v. Ellis, 2009 WY 16, ¶ 21, 201 P.3d 425, 431 (Wyo. 2009) (non-reliance clause placed risk of nondisclosure on buyer); Snyder v. Lovercheck, 992 P.2d 1079, 1089 (Wyo.1999) ("The contract clearly and unambiguously states that [Buyer] is not relying on any representations made by [Seller]. This clause validly allocates the risk of loss resulting from [Buyer's] reliance on [Seller's] representations.").
[¶ 31] We have also considered the meaning and effect of an "as is" clause in a real estate contract, holding that "absent an allegation of fraud, an `as is' clause bars a claim for nondisclosure." Richey v. Patrick, 904 P.2d 798, 804 (Wyo.1995).
Richey, 904 P.2d at 803 (quoting Grube v. Daun, 173 Wis.2d 30, 496 N.W.2d 106, 117 (App.1992)); see also Hulse, ¶ 53, 33 P.3d at 138-39 (contract's "as is" clause "placed the risk of discovery of adverse material facts" on buyer).
[¶ 32] The plain meaning of the Contract's "as is," merger, and disclaimer provisions is thus clear. The provisions place the responsibility for discovering adverse material facts concerning the property on the buyer, and likewise place the risk of loss for those adverse material facts on the buyer. The next task then is to determine whether the Contract's Property Disclosure provision somehow alters that plain meaning. To answer this question, we must determine the meaning of the Property Disclosure provision.
[¶ 33] The Contract's Property Disclosure provision states, "Seller represents that upon execution of this Contract ... [t]he condition of the property is as stated in the Property Disclosure." Before addressing the purpose of this provision, we will address what we know the provision is not. We know the provision is not a warranty because the Contract's plain language clearly and specifically disclaims any seller warranties, express or implied, concerning the property's condition. The Property Disclosure itself confirms this interpretation. The document's front page specifies that it is "Seller's Property Disclosure to Prospective Buyers," and the document describes itself as a "statement and representation" disclosing designated conditions "to the best of Seller's current actual knowledge." The Property Disclosure details the Seller's knowledge of the property, but it contains no language that could be interpreted as a warranty or promise, assurance or guarantee of any type.
[¶ 34] The Property Disclosure's incorporation into the Contract does not change or elevate the document's status. The Property Disclosure is by its own description and by the Contract's terms a representation by the seller. The sentence immediately following the Property Disclosure's incorporation into the Contract then specifies that the buyer is not relying on the seller's representation as to any condition the buyer deems material to her decision to purchase the property. The Property Disclosure thus cannot by its own terms or by its incorporation into the Contract be interpreted as a guarantee, promise or warranty of the property's condition.
[¶ 35] The final question then is what meaning to give the Contract's Property Disclosure provision. The Contract provision sets forth two options concerning Property Disclosure: option A specifies that the condition of the property is as stated in the attached and incorporated Property Disclosure form, and option B specifies that a Property Disclosure is not available. Given its immediate proximity to the buyer's disclaimer of reliance on any seller representation,
[¶ 36] We thus conclude that the Contract is unambiguous, and based on its plain meaning, Claman may not assert a breach of contract claim based on the accuracy of any representation by Popp or any nondisclosure by Popp, or Claman's reliance on the alleged representation or nondisclosure.
[¶ 37] Claman's second cause of action against Popp was a negligent misrepresentation claim. Claman asserted that Popp undertook to make property condition disclosures and in doing so assumed a duty to "fully, accurately, and completely" disclose her prior knowledge of any defects in the property. Claman argues that Popp breached that duty by not disclosing the claims submitted to the DEQ concerning the property's subsidence damage.
[¶ 38] The district court granted summary judgment against Claman's negligent misrepresentation claim, ruling that the Contract's merger and disclaimer provisions barred the claim. On appeal, Claman argues that the court erred because the Contract's Property Disclosure provision distinguishes this case from those on which the district court relied. We disagree.
[¶ 39] This Court has repeatedly held that when a purchaser of realty signs a contract with disclaimer and merger clauses providing that the purchaser is not relying on the representations of the seller as to the condition of the property, the contract bars a claim for negligent misrepresentation. Hulse, ¶ 54, 33 P.3d at 139; Sundown, Inc. v. Pearson Real Estate Co., Inc., 8 P.3d 324, 332 (Wyo.2000); Snyder, 992 P.2d at 1089. We have explained:
Hulse, ¶ 54, 33 P.3d at 139 (quoting Snyder, 992 P.2d at 1087).
[¶ 40] As we noted above in our discussion of Claman's breach of contract claim, the Contract's Property Disclosure provision is simply a notice provision. The provision did not alter or dilute in any fashion the Contract's merger and disclaimer provisions, and it did nothing to undermine the policy justifications for not allowing a tort claim to nullify the parties' bargained for allocation of risk. See Snyder, 992 P.2d at 1087 ("[P]arties are not permitted to assert actions in tort in an attempt to circumvent the bargain they agreed upon."). We thus affirm the district court's entry of summary judgment rejecting Claman's negligent misrepresentation claim.
[¶ 41] Claman's final claim for relief was a fraudulent inducement claim, which she based on two alleged fraudulent acts by Popp. First, Claman alleged that Popp intentionally withheld information concerning the 1993 and 2007 DEQ submissions with the intention of inducing Claman to purchase the property. Second, she alleged that Popp intentionally misrepresented to Claman that the property did not have a crawlspace in an effort to conceal the failing foundation.
[¶ 42] Following a bench trial, the district court ruled against Claman on both allegations of fraud. With respect to the allegation relating to the crawlspace, the court found Popp's testimony more credible than that of Claman, and it concluded that Popp had in fact informed Claman of the crawlspace and offered to show her the crawlspace. On appeal, Claman does not challenge the district court's findings on the crawlspace allegation. Claman instead appeals only the ruling on the fraud allegations relating to Popp's failure to disclose the DEQ claims.
[¶ 43] A plaintiff alleging fraudulent inducement carries the burden of showing by clear and convincing evidence that 1) the defendant made a false representation intending to induce action by the plaintiff; 2) the plaintiff reasonably believed the representation to be true; and 3) the plaintiff suffered damages in relying on the false representation. Bitker v. First Nat'l Bank in Evanston, 2004 WY 114, ¶ 12, 98 P.3d 853, 856 (Wyo.2004). "Clear and convincing evidence is the `kind of proof which would persuade a trier of fact that the truth of the contention is highly probable.'" Alexander v. Meduna, 2002 WY 83, ¶ 29, 47 P.3d 206, 216 (Wyo.2002) (quoting MacGuire v. Harriscope Broadcasting Co., 612 P.2d 830, 839 (Wyo. 1980)).
Alexander, ¶ 25, 47 P.3d at 215 (quoting Sundown, Inc., 8 P.3d at 330-31) (emphasis in original).
[¶ 44] Applying these principles to Claman's allegation that Popp fraudulently failed to disclose the 1993 and 2007 DEQ submissions, the district court rejected the claim based on the following conclusions (citations to trial exhibits omitted):
[¶ 45] On appeal, Claman does not challenge the evidentiary basis for the district court's conclusions, but instead, in her brief, argues:
Claman's argument misunderstands the showing required to prove a claim for fraudulent inducement and the import of the district court's findings.
[¶ 46] The court's findings and conclusions illustrate first that Popp's failure to disclose the DEQ claims was not motivated by a fraudulent intent. Simply put, the court concluded that Popp was not trying to hide a latent defect. On the Property Disclosure, Popp reported that the property had known or suspected subsidence problems. And the subsidence problems reported in the DEQ claim forms were not latent defects that could be learned only from reviewing those forms. The DEQ submissions revealed drainage issues, issues that the court found Popp had disclosed and were otherwise apparent, and they revealed minor repairs that were required to the property, repairs that cost less than $1,200.00. The forms did not disclose anything that would suggest the home's foundation was failing and would require the $300,000.00 in repairs Claman has demanded. Based on Popp's affirmative disclosure of the property's subsidence problems, the open indicators of the subsidence problems covered by the DEQ claims, and the district court's determination that Popp was a credible witness, the court concluded that Popp did not know of the failing foundation and had no intent to misrepresent the property's condition by not disclosing the DEQ claims.
[¶ 47] The district court's findings also undercut Claman's allegation of reliance on the nondisclosure and her allegation that her damages were caused by that reliance. This Court has held that a contract's "as is" disclaimer provision will not bar a claim for fraudulent nondisclosure. Richey, 904 P.2d at 803-04. Nonetheless, a buyer of property cannot ignore available evidence of a defect, such as physical evidence on the property and the seller's property condition disclosures, and then assert a claim for fraud because the same information was not provided in a different form. Under these circumstances, the evidence does not support a claim of reliance on the nondisclosure.
[¶ 48] The district court's summary judgment against Claman's breach of contract and negligent misrepresentation claims was in accordance with law and the undisputed facts. We also conclude that the court's findings of fact on Claman's fraudulent inducement claim were not clearly erroneous and its conclusions and order were in accordance with law. We thus affirm.
