DAVIS, Justice.
[¶ 1] Appellants Alan and Chleo Moats (Moats) sold 850 acres of farm ground, intending to retain the mineral rights for themselves. The deeds prepared by Appellee Professional Assistance, L.L.C., d/b/a Summit Title Services did not reserve the minerals, even after the Moats were made aware of the omission at closing, insisted that it be rectified, and were assured by a Summit employee that the deeds had in fact been corrected. Approximately six years passed before the error was discovered, and the Moats sued Summit, its general counsel Appellee P. Olen Snider, Jr., and Kuzma Success Realty, the brokerage firm involved in the transaction.
[¶ 2] The district court granted summary judgment in favor of all Appellees, finding that the Moats failed to exercise due diligence to discover the error so as to extend the statute of limitation as a matter of law. We find that there are genuine issues of material fact as to the claims against Summit and Snider, and we therefore reverse and remand for further proceedings as to those claims. We find that the district court correctly granted summary judgment to Kuzma, and we affirm that decision.
[¶ 3] Are there genuine issues of material fact as to whether the Moats exercised reasonable diligence to discover their claims
[¶ 4] The Moats own farmland in northern Laramie County. In early 2004, they decided to sell 850 acres, but wanted to retain the mineral rights. They contacted George O'Hare (O'Hare), a broker associate with Appellee Kuzma Success Realty, and entered into a listing agreement on January 5, 2004.
[¶ 5] The listing agreement indicated that no mineral rights were to be included in the purchase. After the property was listed, Howard Romsa, who had some interest in purchasing the land, contacted Mr. Moats directly. The Moats set a price satisfactory to the Romsas and notified O'Hare that they would contact him. The record contains an undated amendment to the agency agreement in which the Moats consented that O'Hare act as an intermediary rather than as the Moats' agent, and which explained the change in the relationship. The Moats then received a written offer to purchase from the Michael Romsa and Heidi Romsa Revocable Trusts on May 17, 2004. They received a separate purchase offer for a different parcel from the Howard and Mary Romsa Revocable Trusts, on May 19, 2004. The offers were prepared by O'Hare, and they each indicated that "[t]here are no mineral rights included." The Moats accepted both offers in writing on May 19, 2004.
[¶ 6] Appellee Professional Assistance, LLC, doing business as Summit Title Services (Summit), was selected to serve as the closing agent for the transaction. Appellee P. Olen Snider, Jr. (Snider) is an attorney who serves as general counsel for Summit. The Moats and the Romsa trustees signed a set of general closing instructions which indicated that "[t]he parties will provide to the Closer all documents necessary for the closing and in form and content sufficient to satisfy the title insurance commitment requirements." In fact, Summit prepared the documents necessary for the closing, including the deeds necessary to transfer title. Mr. O'Hare testified that his office customarily sends a copy of the executed purchase offer and acceptance to Summit for its use in preparing the required paperwork.
[¶ 7] Closing took place at Summit's offices in Cheyenne on May 19, 2004.
[¶ 8] Mr. Moats testified that he did not finish high school, and that his ability to read and understand complex documents is limited. Mrs. Moats also dropped out of high school but obtained a diploma through a correspondence course. She had a long career with AT & T, working as a manager in the sales department and later as a call quality analyst. She supervised up to twenty people while with AT & T. Mr. Moats customarily relies upon her to help him understand complex documents.
[¶ 9] At the closing, Ms. West presented the documents Summit had prepared to the parties to the transaction, explaining them as she went. The Moats did not read any of the documents presented. When Ms. West presented the warranty deeds necessary to transfer the property being sold, she explained that the deed did not reserve the mineral rights from the sale. Mr. Moats said "absolutely not," and told the Romsas and West that he and his wife would not sell unless they kept the minerals as agreed.
[¶ 10] West picked up some documents, said she would fix them, and left the room. She did not return for up to twenty minutes according to Mrs. Moats. When she did return, she said "they're okay now" or words to that effect, and the Moats signed the deeds without reading them. Mr. Moats explained that "when somebody says they did something and puts it back down in front of you and says it's all right now, I guess I'm dumb enough, I just take them at their word." O'Hare was not asked to and did not review the deeds, and the Moats did not ask him any questions about them.
[¶ 12] Mr. Snider, counsel for Summit, testified that deeds can contain anything the parties want so long as the provisions do not affect insurability of title transferred, and that Summit was "simply the scrivener." He also testified that he had never prepared a mineral reservation up to that point in time, and that it would have taken him hours to research how to properly draft one. The company would normally have told the parties to have their own attorneys prepare a deed containing a mineral reservation. West did not tell the Moats that their own attorney needed to prepare the deeds to reserve the minerals, but instead assured them that the deed did not convey the minerals after purportedly making corrections.
[¶ 13] About six years passed before the Moats learned of the problem with the deed. A landman with Family Tree Corporation offered to pay $30.00 an acre in bonus for a paid-up oil and gas lease on the property that had been transferred. The Moats were willing to lease the minerals for that price, and they executed the required documents. When a bonus check was not forthcoming, they followed up with the landman and learned that they did not own the minerals because they had been transferred.
[¶ 14] Mr. Moats contacted O'Hare, and he and the Moats went to the Laramie County courthouse to check the deeds. After reviewing the deeds, O'Hare told the Moats that the minerals had in fact been transferred with the land. He later told Mr. Moats that he had spoken with representatives of Summit Title, who told him that there had been a mistake and that they thought they could get the minerals back. Moats later met with a representative from Summit Title who had him sign some papers that were intended to play a role in transferring the minerals back to him and his wife,
[¶ 15] The Moats filed suit against Appellees on September 28, 2011. They claimed negligence against all defendants, and breach of contract and breach of an implied covenant of good faith and fair dealing against Kuzma and Summit. They also claimed legal malpractice against Snider and Summit, and negligent misrepresentation against Summit.
[¶ 16] The district court granted summary judgment in favor of all Appellees on all claims. It found that there were no genuine issues of material fact as a matter of law, and that the two-year professional negligence statute, Wyo. Stat. Ann. § 1-3-107, barred the Moats' claims because they had not read the documents in question, thereby failing to exercise the diligence necessary to avail themselves of more time under the discovery rule. This timely appeal followed.
[¶ 17] Our standard for review of summary judgment has been stated so often that it requires no elaboration:
DiFelici v. City of Lander, 2013 WY 141, ¶ 7, 312 P.3d 816, 819 (Wyo.2013).
[¶ 18] The Moats argue that the trial court erred in granting summary judgment to all Appellees because there was a genuine issue of material fact as to whether they exercised due diligence under the specific circumstances of this case. Appellees respond that the undisputed facts show that the deeds are relatively simple, and that the Moats had an opportunity to review them at closing and for years afterward, but did not do so. They also argue that Mr. Moats' limited reading abilities are, as a matter of law, insufficient to excuse both Mr. and Mrs. Moats from reading the deeds.
[¶ 19] The pertinent section of § 1-3-107 provides as follows:
Wyo. Stat. Ann. § 1-3-107 (LexisNexis 2013).
[¶ 20] The parties agree that this statute applies to the claims in this case. The Moats do not deny that the error in the deeds was discoverable within two years; instead, they argue that a jury should decide whether they exercised due diligence in light of Ms. West's assurances that the deeds had been changed to reserve the minerals.
[¶ 21] As we have previously said, the application of the discovery rule is a mixed question of fact and law:
Heimer v. Antelope Valley Improvement, 2010 WY 29, ¶ 18, 226 P.3d 860, 864 (Wyo. 2010).
[¶ 22] We have never had occasion to define the term "due diligence" as it is used in § 1-3-107 (see Adelizzi v. Stratton, 2010 WY 148, ¶ 16, 243 P.3d 563, 567 (Wyo. 2010)), but we have found that term to be fact-specific in other contexts.
Daniel v. State, 2008 WY 87, ¶ 14, 189 P.3d 859, 864 (Wyo.2008) (dealing with whether the State exercised due diligence to learn of extent of victim's injuries in a criminal case).
In Re Estate of Novakovich, 2004 WY 158, ¶ 27, 101 P.3d 931, 938 (Wyo.2004) (personal representative required to exercise reasonably diligent efforts, synonymous with due diligence, to locate creditors) (citing Pittman v. State ex rel. Workers' Comp. Div., 917 P.2d 614, 618 (Wyo.1996); Olheiser v. State ex rel. Worker's Comp. Div., 866 P.2d 768, 773 (Wyo.1994)).
Matter of Adoption of CAM, 861 P.2d 1102, 1105 (Wyo.1993) (adoptive father required to exercise due diligence to locate natural father before serving by publication).
[¶24] They also correctly point out that we have refused to reform deeds when the grantor did not read a deed and then did not seek reformation for many years. Town of Glenrock v. Abadie, 71 Wyo. 414, 431-32, 259 P.2d 766, 771-72 (1953) (litigant who erroneously deeded minerals and did not make any effort to correct the mistake for over thirty years barred from claim of reformation).
[¶ 25] If this case involved only a failure to read an easily understood document in a claim for rescission or an effort to avoid a contract, Summit's argument would doubtless prevail. There are other facts to balance, however, and we must view them in the light most favorable to the Moats:
[¶ 26] As noted above, Appellees rely upon Town of Glenrock v. Abadie for the proposition that failure to read the deeds bars the Moats from availing themselves of the benefit of the discovery rule regardless of whether Summit representative West misled
Kennedy, 113 S.W.2d at 1021. The Kennedy court found no such circumstances in that case.
[¶ 27] In Hutchins v. Birdsong, 258 S.W.2d 218 (Tex.Civ.App.1953), a different Texas intermediate court of appeal upheld reformation of a deed when the grantor was assured by the grantee that the documents in question, which the grantee's attorney prepared, did not transfer his mineral rights. Id. at 220-21. In ruling on what it described as a "vigorous motion for rehearing in which certain assertions are made by the writer, which, in his calmer moments he would not have indulged," it further explained its decision as follows:
[¶ 28] This record presents a genuine issue of material fact as to whether the Moats exercised the diligence a reasonable person would have under the circumstances. They certainly should have read the deeds, but the record is far from clear that a reasonable person with no background in real estate law would necessarily have understood them to convey the mineral interests — as noted above, the law requires an express reservation to retain the minerals, and there is nothing in this record which would tell us that the Moats or a reasonable person similarly situated would have known that. Whether the Moats should have trusted the closing agent's representation that the deeds had been changed to reserve the minerals must be evaluated in light of all the facts. See 54 C.J.S., supra, § 245 (Professional Malpractice); and due diligence cases cited above. Viewed in the light most favorable to the Moats and that most unfavorable to Appellees, West took the deeds, found that they could not be drafted to include a reservation of mineral rights, and decided to complete the transaction without telling the Moats that they needed to have their attorney prepare a deed with a mineral reservation, because that would have required the closing to be rescheduled.
[¶ 29] Summit and Mr. Snider correctly point out that the Moats have not claimed fraud. That is not the question. The question is whether on the facts of this case, the Moats exercised due diligence after being told that the deeds has been corrected to eliminate the mineral reservation. The Moats need not prove fraud to support a finding that they exercised due diligence under the circumstances. Womble v. Mahoney, 383 P.2d 26, 29 (Okla.1963); United States for Use and Benefit of Humble Oil & Refining Co. v. Fidelity & Cas. Co. of New York, 402 F.2d 893, 897-98 (4th Cir.1968); Nesbitt v. Erie Coach Co., 416 Pa. 89, 204 A.2d 473, 476-77 (1964); 31 Samuel Williston, Treatise on the Law of Contracts § 79.54, at 488-89 (Richard A. Lord ed., 4th ed.2004).
[¶ 30] Appellees Summit and Snider also cite Schmidt v. Killmer, 2009 WY 23, 201 P.3d 1121 (Wyo.2009). That case involved a claim by general partners in a limited partnership against an accountant. The partners claimed that the accountant, who was the liquidating trustee, had not distributed the limited partnership's assets as required by the partnership agreement. This Court affirmed summary judgment because the partners had each signed a ballot approving the settlement agreement proposed by the trustee, although they contended that they did not understand it. We noted that the partners did not argue that their consent to the distribution was fraudulently obtained or based on mistake, or that the trustee engaged in self-dealing. Id. at ¶ 17, 201 P.3d at 1126. We also noted that the appellants were "fully apprised at the time of all the details." Id. The case therefore does not afford the support these Appellees claim it does, because it does not involve a document which might be difficult for a layman to understand, or a misrepresentation.
[¶ 31] The record reveals very little about Mr. Snider's involvement in the transaction. He may have had nothing to do with it. As we discuss below, a misrepresentation by one party will not necessarily extend the statute of limitations against another party. However, as we have held:
[¶ 32] A reasonable jury may find that the Moats exercised reasonable diligence in light of all of the circumstances, or it may find that they did not. We conclude only that when the record is viewed in the light most favorable to the Moats, there are genuine issues of material fact as to whether they exercised due diligence to discover potential claims against Summit and Mr. Snider in light of Ms. West's representations.
[¶ 33] The record reflects that Kuzma associate broker George O'Hare drafted the purchase offer and acceptance in this case to exclude the minerals. It also reflects that he sent the purchase offer and acceptance to Summit, and that Summit drafted the deeds in question. He was not asked to and did not review the deeds before or after they were supposedly corrected. He is not accused of having misrepresented anything to the Moats.
[¶ 34] We therefore must decide whether there is a genuine issue of material fact as to whether the Moats used reasonable diligence to discover any claims it might have against Kuzma. As we have noted above, the Moats are not required to prove fraud to establish that they acted with due diligence under § 1-3-107 in light of the assurances of Summit's agent. However, we note that in general the act of a third person in concealing a cause of action against a defendant does not prevent the running of the statute of limitations in favor of that defendant unless there is an agency relationship between the misrepresenting party and the defendant. New York Life Ins. Co. v. Nashville Trust Co., 200 Tenn. 513, 292 S.W.2d 749, 764 (1956); L.S. Teller, Annotation, 173 A.L.R. 576 § 10 (2011); 51 Am.Jur.2d Limitation of Actions § 167 (2011); 54 C.J.S., supra, § 141; 31 Williston, supra, § 79:42, at 439. The record reflects no such relationship in this case.
[¶ 35] We see no reason that misrepresentations by an agent of Summit should extend the statute of limitations as to Kuzma. We will therefore affirm the district court's decision granting summary judgment to Kuzma.
[¶ 36] We find that there are genuine issues of material fact as to whether the Moats exercised due diligence to discover errors allegedly made by Appellee Summit (Professional Assistance L.L.C.), and we therefore reverse the district court's summary judgment. We also find that Appellee P. Olen Snider, Jr., failed to present a prima facie case that he was entitled to summary judgment, and we also reverse the district court's summary judgment as to him. We find that the district court correctly found that there were no genuine issues of material fact as to the claims against Kuzma Success Realty, and we therefore affirm summary judgment against it. We remand for further proceedings consistent with this opinion.
WARRANTY DEED
[property description]
