Opinion by JUDGE WEBB

¶ 1 Whether the economic loss rule bars a nondisclosure tort claim against the seller of a home built on expansive soils, which caused damage to the home after the sale, is a question of first impression in Colorado. In case number 12CA1269, defendants, John E. McNutt, Timothy A. McNutt, and Christopher L. Boortz (collectively, Sellers), appeal the judgment entered following a bench trial in favor of Carol S. Gattis (Gattis) on her nondisclosure claim. They seek reversal on the basis that the economic loss rule precludes Gattis's tort claim because the standard-form purchase and sale agreement included a "Seller's Property Disclosure" form (SPD), which addressed expansive soils, but Gattis did not assert a breach of contract claim.

¶ 2 We decline to apply the economic loss rule in this case for two reasons. First, apart from any contractual obligation, home sellers owe home buyers an independent duty to disclose latent defects of which they are aware. Second, disclosure provisions in the standard-form residential real estate contract at issue do not so subsume this independent duty as to trigger the economic loss rule. Therefore, we affirm the trial court's judgment.

I. Background

¶ 3 An entity controlled by Sellers purchased the residence for purposes of repair and resale. Before the purchase, this entity obtained engineering reports that included extensive discussion of structural problems in the residence resulting from expansive soils and of ways to remedy those problems. Advance Structural Repair, another entity that Sellers controlled, oversaw the repair work. When the repairs were completed, Sellers obtained title to the residence and listed it for sale.

¶ 4 Sellers had no direct contact with Gattis and her husband, both now deceased, who purchased the residence from them. The parties entered into a standard-form real estate contract, approved by the Colorado Real Estate Commission: Contract to Buy and Sell Real Estate (Residential) (New Loan) (CBS 1-10-11), to which they made no changes (the Form Contract).

¶ 5 As relevant here, the SPD asked, "To Seller's current actual knowledge, do any of the following conditions now exist or have they ever existed: sliding, settling, upheaval, movement or instability of earth or expansive soils on the Property?" Across this entire page, one of the Sellers wrote, "Seller has no personal knowledge of property / Seller has never lived at property." The SPD also asked, "To Seller's current actual knowledge, do any of the following conditions now exist or have they ever existed: structural problems?" Although one of the Sellers wrote the same statement across this page, the "Yes" box was checked in response to this question, followed by, "Repaired by Advanced Structural Repair — Engineered by Bob Hessick" (sic).

¶ 6 Several years after having taken title to the residence, Gattis commenced this action. She pleaded several tort claims alleging only economic losses based on damage to the residence resulting from expansive soils.

¶ 7 The trial court denied Sellers' pretrial motion for summary judgment based on the economic loss rule. Sellers raised the economic loss rule through an oral motion to dismiss at the end of Gattis's case-in-chief. Again, the court denied Sellers' motion.

¶ 8 Sellers do not dispute the trial court's findings that before the sale closed:

¶ 9 As relevant here, the trial court held Sellers liable for nondisclosure of material facts. Citing Colorado Jury Instructions (CJI)-Civil 19:2 (2009), the court explained:

II. The Economic Loss Rule Does Not Bar Gattis's Nondisclosure Tort Claim

A. Standard of Review

¶ 10 "Whether the economic loss rule precludes a particular claim raises a legal issue subject to de novo appellate review." Makoto USA, Inc. v. Russell, 250 P.3d 625, 627 (Colo.App.2009). "The existence and scope of a tort duty is a question of law to be determined by the court." A.C. Excavating v. Yacht Club II Homeowners Ass'n, Inc., 114 P.3d 862, 866 (Colo.2005).

B. Economic Loss Rule

¶ 11 Under the economic loss rule, "a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law." Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1264 (Colo.2000). In adopting the rule, the supreme court recognized three policy considerations:

BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 72 (Colo.2004).

¶ 12 The source of the underlying duty determines whether the economic loss rule applies. Town of Alma, 10 P.3d at 1262. While contractual obligations are based on bargained-for exchanges, tort law imposes general duties "to protect citizens from risk of physical harm or damage to their personal property," in addition to duties arising from any agreement or contract. BRW, Inc., 99 P.3d at 72 (quoting Town of Alma, 10 P.3d at 1262).

¶ 13 For a claim to escape the economic loss rule, the duty must arise independently of any contractual obligation. Town of Alma, 10 P.3d at 1263 (citing Brody v. Bock, 897 P.2d 769, 776 (Colo.1995) (common law fraud claim is based on violation of a duty independent of contract); Keller v. A.O. Smith Harvestore Prods., Inc., 819 P.2d 69, 73 (Colo. 1991) (negligent misrepresentation is a tort claim based "not on principles of contractual obligation but on principles of duty and reasonable conduct")); see also United Int'l Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1227 (10th Cir. 2000) (plaintiff's "fraud claim, although premised on representations made in the course of contractual negotiations, likewise arose independently of the contract") (applying Colorado law).

C. Analysis

1. Independent of Any Contractual Obligation, Sellers Owe Home Buyers a Duty to Disclose Known But Latent Defects

¶ 14 The economic loss rule does not bar negligence claims brought by homeowners against builders for latent construction defects, because the "builder has an independent duty to act without negligence in the construction of a home." Town of Alma, 10 P.3d at 1265-66.1 In so holding, the court "[r]el[ied] heavily on policy concerns about protecting home buyers." Id. at 1266. Despite more recently having applied the economic loss rule in commercial construction cases, the supreme court has declined to extend it to negligence claims for latent defects in residential construction. Compare BRW, Inc., 99 P.3d at 74, with A.C. Excavating, 114 P.3d at 866.

¶ 15 In Mid Valley Real Estate Solutions V, LLC v. Hepworth-Pawlak Geotechnical, Inc., 2013 COA 119, ___ P.3d ___, 2013 WL 3943215, a negligent construction case involving a residence, the division identified several policy considerations that favor recognizing an independent duty to protect homeowners:

Mid Valley, ¶ 13.

¶ 16 For the following reasons, we conclude that these policy considerations apply to home sellers and home buyers as well. And we further conclude that they preclude drawing a principled distinction between negligence claims against home builders for latent defects in the original construction, which are outside the economic loss rule, and a nondisclosure claim against a later home seller for latent defects known to the seller.

¶ 17 For these reasons, we conclude that claims against home sellers for nondisclosure of latent but known defects arise from an independent duty.

2. Disclosure Terms in the Form Contract Do Not So Subsume This Independent Duty as to Trigger the Economic Loss Rule

¶ 18 Sellers argue that "[t]he Court need not reach the issue of whether or not Sellers owed Gattis an independent duty of care, because the only duties allegedly breached were those subsumed within the Contract and [SPD]." We disagree because, unlike the transaction-specific, negotiated contracts in the cases on which sellers rely, see Former TCHR, LLC v. First Hand Mgmt. LLC, 2012 COA 129, ¶¶ 28-30, 317 P.3d 1226, 2012 WL 3127336; Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282, 292-93 (Colo. App.2009), neither the SPD nor any other term in the Form Contract limits or subsumes home sellers' common law duty to disclose latent defects of which they are aware.

¶ 19 When parties negotiate a contract for a particular transaction, they often address common law duties. See, e.g., TCHR, ¶¶ 28-30; Hamon, 229 P.3d at 292-93; Casey v. Colo. Higher Educ. Ins. Benefits Alliance Trust, 2012 COA 134, ¶ 30, 310 P.3d 196 ("The language in the trust agreements creating the fiduciary duty indicates that sophisticated parties negotiated this contract."). Such contracts may completely subsume the common law duties addressed. See Casey, ¶ 30 ("The fiduciary duty that tort law imposes on trustees generally is nearly identical to the fiduciary duty that the language of the trust agreements imposes on the trustees here.").

¶ 20 Deciding if a common law duty differs from the corresponding contractual duty turns on whether the "duty of care ... was memorialized in the contracts." BRW, Inc., 99 P.3d at 74. A court need consider only whether "the [tort] claim could not have been proven without first proving that defendants also breached their contract with plaintiff." Makoto USA, Inc., 250 P.3d at 628.

¶ 21 For example, in TCHR, the contract for the purchase and sale of a shopping center included "carefully and expressly drawn allocations of risks, duties, and remedies for which [the parties] bargained." TCHR, ¶ 30. Specifically,

Id. at ¶ 28. Relying on the holding in Hamon that "although there is a common law duty to refrain from fraud, any such duty existed in the case only because of the parties' contracts," the division reached the same conclusion as to the nondisclosure claim against the seller. Id. at ¶¶ 32-33 (citing Hamon, 229 P.3d at 293-94). It added that imposing the common law duty of disclosure "would allow [the plaintiff] to evade its express agreement that it would not in any way rely on any representations or information provided by [the defendant] or its representatives, other than those set forth in the Agreement, but rather would rely exclusively on its own investigation." Id. at ¶ 30 (emphasis added). Then it applied the economic loss rule to bar the nondisclosure claim. Id. at ¶ 33.

¶ 22 In Hamon, a contractor claimed that the defendants, who were other participants in the commercial construction project, concealed and misrepresented site conditions, causing the contractor to submit change orders and seek delay damages. 229 P.3d at 287-88. The contracts in Hamon, however, addressed site conditions and related problems in four ways: (1) the defendants' discretion to accept change orders; (2) the covenant of good faith and fair dealing implicit in their doing so; (3) the implied warranty of the adequacy of the plans and specifications; and (4) the duty set forth in the contract's "prevailing standard of practice" clause. Id. at 292-93. The division explained that "[s]uch a duty would presumably preclude the type of concealment and misrepresentation [the plaintiff] allege[d] ..., and the articulation of such a duty in the contract further demonstrate[d] the parties' ability to allocate the risk of such conduct in their bargaining." Id. at 293. The contract also included specific remedies for the harm resulting from the alleged concealment and misrepresentation. See id. at 292. As in TCHR, the division held that the economic loss rule barred the contractor's claims. Id. at 293-94.

¶ 23 Sellers' argument that Hamon and TCHR require application of the economic loss rule to bar Gattis's nondisclosure claim ignores the following differences between the transaction-specific agreements in those cases and the Form Contract:

¶ 24 Therefore, the common law duty to disclose is not subsumed merely because the SPD asks questions about categories of commonly occurring defects. To the contrary, while Sellers were not required by the SPD to disclose their involvement with the entity that had performed repairs, the trial court found — and the Sellers do not dispute — that this fact was material and should have been disclosed. Thus, Gattis could have prevailed on this nondisclosure without relying on the SPD. See Makoto USA, Inc., 250 P.3d at 628.

¶ 25 Nevertheless, Sellers argue that the SPD subsumes their common law duty to disclose latent defects of which they knew because several sections of the SPD contain numbered but blank boxes, in which additional information could be added, and because the SPD admonishes the seller that "failure to disclose a known material defect may result in legal liability." This argument fails for two reasons.

¶ 26 First, the SPD does not instruct or require the seller to include additional information in the blank boxes. Second, because the buyer's signature on the SPD acknowledges only receipt ("Buyer hereby receipts for a copy of this Disclosure."), even if the admonition could be interpreted as limiting the seller's common law duty, the buyer merely acknowledging receipt would not constitute agreement to such a limitation. Nor does the Form Contract contain any language binding the buyer to the SPD.

¶ 27 To the extent that TCHR and Hamon contain broad statements about using the economic loss rule to bar fraud claims, we decline to apply such statements in residential real estate transactions utilizing form contracts that, as here, do not set out a standard of care, limit rights to specific disclosures, or provide express remedies for nondisclosure, for the following reasons. See People ex rel. A.V., 2012 COA 210, ¶ 11 n. 1, 297 P.3d 1019 ("One division is not bound by the holding of another division.").

¶ 28 First, we reject the suggestion in Hamon that other jurisdictions uniformly allow the economic loss rule to trump fraud claims relating to the subject matter of a contract. See 229 P.3d at 292 (citing Werwinski v. Ford Motor Co., 286 F.3d 661, 670-80 (3d Cir.2002) (applying Pennsylvania law); Bracco Diagnostics, Inc. v. Bergen Brunswig Drug Co., 226 F.Supp.2d 557, 562-65 (D.N.J. 2002) (applying New Jersey law); Huron Tool & Eng'g Co. v. Precision Consulting Servs., Inc., 209 Mich.App. 365, 532 N.W.2d 541, 544-46 (Mich.Ct.App.1995)). Other jurisdictions have recognized an independent duty to disclose latent but known defects in residential real estate transactions.3

¶ 29 Second, adopting Hamon, the division in TCHR rejected the plaintiff's reliance "on section 551(2)(b) of the Restatement (Second) of Torts (1977)," to establish a disclosure duty independent of the contract. TCHR, ¶ 34. But our supreme court has cited this section of the Restatement with approval. See, e.g., Mancuso v. United Bank, 818 P.2d 732, 744 (Colo.1991). And it has not applied the economic loss rule in a misrepresentation or nondisclosure case.

¶ 30 Third, were the economic loss rule to preempt this duty based on a form contract that, as here, neither disclaims reliance nor limits required disclosures, a tort claim could never be brought because the statute of frauds requires a written agreement to purchase a residence. See § 38-10-106, C.R.S. 2013. Such a broad approach does not align with the purpose of the economic loss rule.4

¶ 31 Fourth, a home seller's common law duty to disclose material information is a fact-specific inquiry based on the particular circumstances of the transaction. See, e.g., Burman, 821 P.2d at 918-19 (distinguishing facts of which home buyer was put on constructive notice from latent defects). But parties to a form residential real estate contract, who may not have legal representation, are ill-suited to anticipate all areas where disclosure may be appropriate and address them by attempting to amend the contract with transaction-specific duties and remedies.

¶ 32 Accordingly, because claims against home sellers for nondisclosure of latent but known defects are outside the scope of the economic loss rule, and because the disclosure terms in the Form Contract do not subsume a home seller's common law duty to disclose such defects, we decline to bar Gattis's nondisclosure claim based on the economic loss rule.

III. The Trial Court Properly Awarded Gattis Attorney Fees

¶ 33 In case number 13CA0116, Sellers appeal the trial court's award of attorney fees to Gattis as the prevailing party based on the following fee-shifting provision in the Form Contact: "In the event of any ... litigation relating to this contract, the ... court shall award to the prevailing party all reasonable costs and expenses, including attorney fees." (Emphasis added.) We conclude that Gattis was entitled to attorney fees as the prevailing party on her nondisclosure claim, and that she is entitled to her attorney fees on appeal.

A. Standard of Review

¶ 34 Absent a specific statute, court rule, or contract provision to the contrary, attorney fees are not recoverable by a prevailing party in a contract or tort action. Wheeler v. T.L. Roofing, Inc., 74 P.3d 499, 503 (Colo.App.2003). But "[f]ee-shifting provisions replace the otherwise applicable rule that the losing party does not have to pay the winner's attorney fees." Bedard v. Martin, 100 P.3d 584, 593 (Colo.App.2004).

¶ 35 A trial court's prevailing party determination under a contractual fee-shifting provision is reviewed for an abuse of discretion. Dennis I. Spencer Contractor, Inc. v. City of Aurora, 884 P.2d 326, 328 n. 6 (Colo.1994). However, interpretation of such a provision presents a legal question subject to de novo review. Fibreglas Fabricators, Inc. v. Kylberg, 799 P.2d 371, 374 (Colo.1990).

¶ 36 Likewise, "[t]he standard of review for the interpretation of contract terms is de novo." Cagle v. Mathers Family Trust, 295 P.3d 460, 465 (Colo.2013). When interpreting a contract, "[a]ny construction that would render any clause or provision unnecessary, contradictory, or insignificant should be avoided." Mapes v. City Council, 151 P.3d 574, 577 (Colo.App.2006).

B. Gattis Was the Prevailing Party

¶ 37 Sellers first contend Gattis was not the prevailing party because the economic loss rule bars her nondisclosure claim. Our conclusion that the trial court properly declined to apply the rule resolves this contention.

C. Gattis's Tort Claim Relates to the Contract

¶ 38 Sellers next contend Gattis is not entitled to attorney fees because the fee-shifting provision should not apply to her nondisclosure tort claim, if it is independent of Sellers' contractual obligations. The plain language of the fee-shifting provision defeats this contention.

¶ 39 Fee-shifting provisions that use broad phrases, such as "arise out of," have been interpreted as applying to all claims that originate from, grow out of, or flow from the contract at issue. Bedard, 100 P.3d at 593. For example, in Sperry v. Bolas, 786 P.2d 517, 518 (Colo.App.1989), the division concluded that even though "plaintiff [had] sought damages in tort for defendant's fraudulent misrepresentation," such a claim arose out of parties' contract.

¶ 40 Fee-shifting provisions that, as here, use the phrase "relating to" a contract have been interpreted even more "broad[ly] than one which covers claims merely arising out of a contract." City & County of Denver v. District Court, 939 P.2d 1353, 1366 (Colo. 1997) (quoting Yale Materials Handling Corp. v. White Storage & Retrieval Sys., Inc., 240 N.J.Super. 370, 573 A.2d 484, 486 (N.J.Super.Ct.App.Div.1990)). The terms "relating" and "relate to" have been interpreted to "encompass[] all issues surrounding the underlying subject matter." In re Marriage of Ikeler, 161 P.3d 663, 673 (Colo. 2007); see also Meadow Homes Development Corp. v. Bowens, 211 P.3d 743, 749 (Colo. App.2009) ("The contractual attorney fees provision is very broad: it covers not simply actions to `enforce' the agreement but also actions `relating to [it] or any of its terms or provisions.'"); Harwig v. Downey, 56 P.3d 1220, 1222 (Colo.App.2002) (the "broadly worded phrase `any ... litigation relating to this contract'" would apply to litigation between the contracting parties concerning a breach of the lease to which the sales contract was subject).

¶ 41 Here, despite our conclusion that Sellers' disclosure obligations were independent of their contractual duties, Gattis's nondisclosure claim concerned the subject matter of the Form Contract: the purchase and sale of the residence. Therefore, given the broad reach of litigation "related to" the parties' contract, Gattis is entitled to attorney fees under the fee-shifting provision as the prevailing party on this claim.

D. The Fee-Shifting Provision Is Not Limited to Default

¶ 42 Alternatively, Sellers contend the "remedies" section of the Form Contract, which includes the provision on prevailing party attorney fees, only applies to claims of default involving failure to pay amounts when due "or if any other obligation hereunder is not performed or waived as herein provided, there shall be the following remedies." Sellers rely on provisions of two subsections that address applicable remedies if the buyer or seller defaults: specific performance, forfeiture of payments, and damages. Their reliance is misplaced, for two reasons.

¶ 43 First, the section is entitled, "TIME OF ESSENCE AND REMEDIES." It consists of three subsections:

The fee-shifting language appears in the last subsection, which does not reference "default."

¶ 44 Second, accepting Sellers' interpretation would render the phrase "any arbitration or litigation relating to this contract" meaningless. The word "any" means "without limitation or restriction." Nat'l Farmers Union Prop. & Cas. Co. v. Estate of Mosher, 22 P.3d 531, 534 (Colo.App.2000). The breadth of "relating to" has been addressed. An interpretation that disregards these words must be avoided. See Mapes, 151 P.3d at 577.

E. Gattis Is Also Entitled to Appellate Attorney Fees

¶ 45 Based on the fee-shifting provision, Gattis seeks appellate attorney fees. Such an award is appropriate because, for reasons previously discussed, this appeal constitutes litigation relating to the Form Contract, and Gattis has prevailed in the appeal. See, e.g., Ranta Constr., Inc. v. Anderson, 190 P.3d 835, 847 (Colo.App.2008) (awarding attorney fees on appeal pursuant to a prevailing party attorney fee provision in underlying agreement). However, because the trial court is better situated to address the amount of such fees, we exercise our discretion under C.A.R. 39.5 and remand for the trial court to determine and award a reasonable amount of attorney fees incurred on appeal.

IV. Conclusion

¶ 46 The judgment and attorney fees award are affirmed. The case is remanded to determine the amount of appellate attorney fees.

JUDGE BERNARD and JUDGE DUNN concur.