Settlement and Releases: LARKINS V. MILLER (COA 10/26/2007)

LARKINS V. MILLER
SETTLEMENTS AND RELEASES: SALE OF LAND
2006-CA-002043
PUBLISHED: AFFIRMING
PANEL:  THOMPSON PRESIDING; WINE HENRY CONCUR
COUNTY: BOONE
DATE RENDERED: 10/26/2007

Larkins appeals TC’s entry of summary judgment for Miller on their claims for breach of contract and fraud stemming from the sale of an unimproved lot in a new subdivision being developed by Miller. At the time of sale, Larkins alleged that Miller advised them that the slope of the lot would result in additional construction costs that would not exceed a few thousand dollars. Larkins completed the sale and signed a formal Release Agreement that disclaimed any reliance on Miller’s representations about slope stability and released Miller from all claims and demands relating directly or indirectly to slope stability issues. When the Larkins finally moved forward with construction 5 years later, they learned that the slope of the lot would result in an additional $83,000 in building costs. Larkins moved forward with this lawsuit, which Miller defended on the clear wording of the Release. Larkins countered that the Release was invalid because it wasn’t supported by valuable consideration.

On appeal, the COA summarily rejected Larkins’ argument that the Release was not enforceable, pointing out that the Release was executed by them on the same date the check was written by them to Miller for the full purchase price of the property. The COA held that the check constituted valuable consideration and therefore validated the Release. Consequently, the TC’s entry of SJ for Miller was affirmed.

Chad Kessinger
Schiller, Osbourn, Barnes & Maloney

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