LBI v. Scanlan

Opinion

23CA1265 LBI v Scanlan 07-11-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1265

Summit County District Court No. 23CV30050

Honorable Karen A. Romero, Judge

LBI Group, LLC, a Colorado limited liability company; Steven Robert Anderson;

and Debra Sue Anderson,

Plaintiffs-Appellants,

v.

Tim Scanlan,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division III

Opinion by JUDGE DAVIDSON*

Yun and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 11, 2024

Dill Dill Carr Stonbraker & Hutchings, PC, Patrick D. Tooley, Denver, Colorado;

Hamil Law Group LLC, J. Lawrence Hamil, Denver, Colorado, for Plaintiffs-

Appellants

Beltzer Bangert & Gunnell LLP, Buck S. Beltzer, Eric J. Moutz, Greenwood

Village, Colorado, for Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

1

¶ 1 Plaintiffs, LBI Group, LLC; Steven Robert Anderson; and Debra

Sue Anderson (collectively, the Andersons), appeal the district

court’s judgment dismissing under C.R.C.P. 12(b)(5) their complaint

against defendant, Tim Scanlan. We affirm.

I. Background

¶ 2 In 2019, Mr. Anderson approached Mr. Scanlan about

building a home in Silverthorne, Colorado. During precontract

discussions, Mr. Anderson told Mr. Scanlan that the Andersons had

to finance the home’s construction costs and had a total budget of

$2 million. Mr. Scanlan provided an initial budget in July 2020,

estimating the building cost at $1,698,452 plus a $30,000

contingency. The budget also accounted for $634,300 in high-end

allowances, raising the total cost to $2,332,752.

1

¶ 3 Mr. Anderson told Mr. Scanlan that this estimate exceeded the

Andersons’ budget, and after some back and forth, Mr. Anderson

spoke with the lender to see whether he could increase the loan to

meet the estimate. Mr. Anderson then told Mr. Scanlan the lender

1

The parties’ contract defines “allowances” as “specifically itemized,

optional portions of the Work or materials for which the Contractor

or Owner has estimated a cost.”

2

would finance the home if costs were kept to $2.1 million. Mr.

Scanlan responded, “I know we can get it done for that budget

number.”

¶ 4 After reviewing the Andersons’ finalized architectural

drawings, Mr. Scanlan provided an updated budget in September

2020. The updated budget estimated the building cost at

$2,278,284 plus a $30,000 contingency fee. And with high-end

allowances, the total cost of the home would be $2,408,784.

¶ 5 Later that month, the Andersons contracted with Raptor

Construction, Inc. (Raptor), Mr. Scanlan’s business, to build the

home. Raptor built the Andersons’ home, but by May 2022, Raptor

claimed the home’s total costs had increased to over $3.1 million.

To cover these increased costs, the Andersons had to refinance their

home with a larger mortgage.

2

2

After the home was finished, the Andersons refused to pay the full

costs claimed by Raptor. Raptor subsequently recorded a lien on

the home and sued the Andersons to foreclose on its lien. In

return, the Andersons asserted several contract and tort

counterclaims against Raptor, the latter of which appear nearly

identical to the claims here. As best we can ascertain, the other

suit is still ongoing.

3

¶ 6 The Andersons sued Mr. Scanlan, alleging that he

misrepresented or concealed the true building costs to induce the

Andersons to contract with Raptor. Based on these allegations, the

Andersons brought claims for fraudulent misrepresentation,

negligent misrepresentation, and nondisclosure or concealment.

¶ 7 Mr. Scanlan moved to dismiss the complaint under Rule

12(b)(5), attaching the parties’ contract as an exhibit. In relevant

part, Mr. Scanlan argued that the Andersons failed to allege

reasonable reliance as a matter of law because the contract

expressly disclaimed the accuracy of any cost estimate and warned

that costs could increase.

3

¶ 8 Considering the contract without converting the motion to

dismiss into one for summary judgment, the district court granted

the motion and dismissed the complaint with prejudice.

3

In his motion to dismiss, Scanlan also argued that (1) the

complaint failed to allege he acted in an individual capacity, and (2)

the economic loss rule barred the Andersons’ claims. However, the

district court did not reach those issues, and they are not at issue

in this appeal.

4

¶ 9 The Andersons now appeal, asserting the district court erred

in multiple respects by dismissing the complaint. We address each

argument in turn and perceive no error.

II. The Court Properly Dismissed the Complaint

A. Standard of Review

¶ 10 We review de novo a district court’s ruling on a motion to

dismiss. Patterson v. James, 2018 COA 173, ¶ 16. We apply the

same standards as the district court, accepting the complaint’s

factual allegations as true and viewing those allegations in the light

most favorable to the plaintiff. Id.

¶ 11 A court may dismiss a complaint under Rule 12(b)(5) if the

factual allegations do not, as a matter of law, support a claim for

relief. Froid v. Zacheis, 2021 COA 74, ¶ 17.

¶ 12 We also review de novo the interpretation of a contract. Klun

v. Klun, 2019 CO 46, ¶ 18.

B. The District Court Properly Applied

the Rule 12(b)(5) Standard

¶ 13 We reject the Andersons’ assertions that the district court

misconstrued the complaint, and we conclude that nothing in the

5

court’s analysis suggests it misapplied the Rule 12(b)(5) standard in

resolving the Andersons’ motion to dismiss.

¶ 14 First, we disagree with the Andersons that the district court

misread their complaint. To the contrary, the court accurately

summarized the basis for the Andersons’ lawsuit and acknowledged

the Andersons’ allegations of misrepresentations by Mr. Scanlan as

to how he reached the estimated budget and how he could build the

home within the Andersons’ budget. The court properly interpreted

these statements to mean that the home would cost no more than

$2.1 million and that this was the only reason the Andersons

decided to sign the contract. In the words of the court: “[The

Andersons] claim they justifiably relied on [Mr. Scanlan’s]

statements concerning the cost of building their home.”

¶ 15 Moreover, and also contrary to the Andersons’ assertions, the

district court repeatedly referred to the concealment claim as

separate from the misrepresentation claims, and the court

addressed allegations that specifically related to the concealment

claim.

¶ 16 Nor did the district court misapply the standard of review.

6

By its plain terms, the order accurately states the applicable

Rule 12(b)(5) standard and explicitly confirms that the court

accepted the allegations in the complaint as true and viewed them

in the light most favorable to the Andersons. The court’s order then

provides that, based on its determination of clear and specific

language in the contract, the Andersons could not establish

reasonable reliance as a matter of law.

4

C. The Contract is Central to the Andersons’ Claims

¶ 17 Even so, the Andersons contend that the district court’s Rule

12(b)(5) ruling must be reversed because it improperly considered

the parties’ contract without converting the motion into one for

summary judgment. Again, we disagree.

¶ 18 When resolving a motion to dismiss under Rule 12(b)(5), a

court may only consider the complaint’s factual allegations,

documents attached to or referenced in the complaint, and matters

of which the court may take judicial notice. Froid, ¶ 18. If a court

considers “matters outside the pleading” when resolving a Rule

4

Even if the district court had misapplied the C.R.C.P. 12(b)(5)

standard, any such error would be harmless because we review the

motion to dismiss de novo. See Roane v. Elizabeth Sch. Dist., 2024

COA 59, ¶ 21.

7

12(b)(5) motion, “the motion shall be treated as one for summary

judgment and disposed of” under C.R.C.P. 56. C.R.C.P. 12(b).

¶ 19 However, a document is not considered a “matter outside the

pleading” if the plaintiff refers to it in their complaint, even when

the plaintiff does not attach the document to the complaint or

incorporate it by reference. Yadon v. Lowry, 126 P.3d 332, 336

(Colo. App. 2005). Thus, if the plaintiff refers to a document in

their complaint and that document is central to the plaintiff’s claim,

the defendant may attach an authentic copy of the document to

their motion to dismiss, and the court may consider the document

without converting the motion into one for summary judgment. Id.

“The reason for the rule is obvious: ‘If the rule were otherwise, a

plaintiff with a deficient claim could survive a motion to dismiss

simply by not attaching a dispositive document upon which the

plaintiff relied.’” Id. (quoting GFF Corp. v. Associated Wholesale

Grocers, Inc., 130 F.3d 1381, 1385 (10th Cir. 1997)).

¶ 20 That is exactly what happened here: the Andersons did not

attach the contract to their complaint, Mr. Scanlan attached it to

his motion to dismiss, and the district court considered it without

converting the motion to dismiss into a motion for summary

8

judgment. The court reasoned that the contract was central to the

Andersons’ claims because the complaint referenced the contract

approximately thirteen times in the context of those claims.

¶ 21 The Andersons contend that the district court’s ruling was in

error. More specifically, they assert that their “tort claims against

Scanlan are neither based on nor derive from” the contract but

rather “are premised on Scanlan’s fraud . . . during the

[p]re[c]ontract [p]eriod.” In support, they emphasize that Mr.

Scanlan is not a party to the contract, the contract has no legal

effect on the communications between the Andersons and Mr.

Scanlan, and the contract postdates the “false representations and

fraudulent omissions” Mr. Scanlan made prior to the contract.

¶ 22 However, the thrust of the Andersons’ claims is that Mr.

Scanlan, by misrepresentations and omissions, fraudulently

induced them to execute the contract, resulting in damages. As the

Andersons acknowledge in their opening brief, “it would be difficult,

if not impossible, to plead fraud in the inducement of a contract

without referring to the contract.” And, although the Andersons say

this “hardly” makes the contract central to their claims, they do not

explain — nor is it apparent to us — how, under the circumstances

9

here, a court could assess alleged fraudulent or negligent

misrepresentations or omissions without looking at the subsequent

agreement.

¶ 23 To illustrate, regarding their nondisclosure or concealment

claim, the Andersons allege in their complaint that

• “Scanlan concealed or failed to disclose facts with the intent

that [the Andersons] rely on the fact that the disclosed facts

did not exist, and enter the [c]ontract with Raptor”;

• the Andersons “entered the [c]ontract with Raptor relying on

their belief the concealed or undisclosed facts were different

than they actually were”; and

• the Andersons’ “reliance was justified” and “caused

damages to them.”

¶ 24 Likewise, regarding their negligent misrepresentation claim,

the Andersons allege in their complaint that

• “Scanlan gave [the Andersons] false information in the form

of the false representations, concealments, and

non-disclosures”;

10

• “Scanlan gave the information to [the Andersons] as

guidance for [the Andersons] to use in a business

transaction with Raptor, namely the [c]ontract”;

• “Scanlan gave the information to [the Andersons] with the

intent that the Andersons would rely on it to enter the

[c]ontract with Raptor”; and

• the Andersons “justifiably relied on the information

provided by Scanlan and did enter the [c]ontract with

Raptor,” which “caused the Andersons damage.”

¶ 25 Thus, while the Andersons insist that their claims are confined

to precontract actions that induced them to come to the table, it

remains that there could be no completed tort claim under these

circumstances unless they actually entered into the contract. That

is, without the contract, the Andersons would have no claims. See,

e.g., W. Cities Broad., Inc. v. Schueller, 830 P.2d 1074, 1077 (Colo.

App. 1991) (“Actual damage is an essential element” of a fraudulent

inducement claim, and to recover, a plaintiff “must prove both the

value of the consideration he actually received under the

fraudulently induced contract and the value that consideration

would have had if the representations had been true.”), aff’d, 849

11

P.2d 44 (Colo. 1993); accord Club Matrix, LLC v. Nassi, 284 P.3d 93,

96 (Colo. App. 2011).

¶ 26 We are similarly unconvinced by the Andersons’ argument

that the district court improperly “conflated” Mr. Scanlan and

Raptor because Mr. Scanlan was not a party to the contract and

because the contract did not bar the Andersons from asserting

claims against Mr. Scanlan. This appears to be a variation of the

Andersons’ argument — rejected above — that the court should not

have considered the contract because it is not central to their

claims. In any event, to the extent this argument is different, we

note that many allegations in the complaint tie Mr. Scanlan and

Raptor together. For example, the complaint alleges that

• “Scanlan communicated frequently with the Andersons for

the purpose of inducing [them] to enter the [c]ontract with

Raptor”;

• the Andersons “reasonably and justifiably relied on” Mr.

Scanlan’s representations, “and, in reliance on Scanlan’s

representations, entered the [c]ontract with Raptor to their

detriment”;

12

• “without Scanlan’s representations that Raptor could and

would build the [h]ome” within the Andersons’ budget, they

would have stopped discussing the contract with Mr.

Scanlan; and

• Raptor’s claimed total cost of $3.1 million far exceeded “the

amount for which Scanlan represented Raptor could and

would build the [h]ome.”

¶ 27 Again, we do not see how a court could compare Mr. Scanlan’s

precontract representations to what Raptor promised to deliver

under the contract without looking at the agreement itself.

¶ 28 Thus, we conclude that the district court properly considered

the parties’ contract in resolving the motion to dismiss.

D. By the Plain Terms of the Contract, the Andersons Cannot

Show Justifiable Reliance on Scanlan’s Precontract

Statements as a Matter of Law

¶ 29 As their final contention, the Andersons argue that the district

court incorrectly determined that, under the terms of the executed

contract, they could not show justifiable reliance as a matter of law.

We disagree.

¶ 30 Claims for fraudulent misrepresentation, negligent

misrepresentation, and nondisclosure or concealment share a

13

common element — proof of plaintiff’s justifiable reliance on those

representations or omissions. See, e.g., Allen v. Steele, 252 P.3d

476, 482 (Colo. 2011) (negligent misrepresentation); Barnes v. State

Farm Mut. Auto. Ins. Co., 2021 COA 89, ¶ 28 (fraudulent

misrepresentation); CJI-Civ. 19:2 (2024) (nondisclosure or

concealment). “Reliance is not justifiable if another person of

similar intelligence, education, or experience would not have relied

on the alleged representation.” J.A. Walker Co. v. Cambria Corp.,

159 P.3d 126, 132 (Colo. 2007) (Hobbs, J., dissenting).

¶ 31 Accordingly, contract language that “clearly and specifically”

disclaims precontract representations or omissions may preempt

tort claims based on those statements or omissions. Keller v. A.O.

Smith Harvestore Prods., Inc., 819 P.2d 69, 74 (Colo. 1991)

(negligent misrepresentation); see, e.g., Colo. Coffee Bean, LLC v.

Peaberry Coffee Inc., 251 P.3d 9, 17-21 (Colo. App. 2010)

(fraudulent disclosure and negligent misrepresentation). However,

14

a “general integration clause” will not suffice;

5

rather, a

“non-reliance” provision, to be effective, “must be couched in clear

and specific language.”

6

Keller, 819 P.2d at 73-74; accord Colo.

Coffee Bean, 251 P.3d at 19 (observing that Keller “left open the

possibility that a clause ‘couched in clear and specific language’

could protect a party” (quoting Keller, 819 P.2d at 74)); see also

Student Mktg. Grp., Inc. v. Coll. P’Ship, Inc., 247 F. App’x 90, 99

(10th Cir. 2007) (applying Keller to conclude that contract contained

“the kind of ‘specific language’ necessary to preempt” negligent

misrepresentation claim); Steak n Shake Enters., Inc. v. Globex Co.,

110 F. Supp. 3d 1057, 1082-83 (D. Colo. 2015) (applying Keller and

other Colorado and Indiana law to conclude that contract’s

language “specifically and clearly” barred fraudulent inducement

claim), aff’d on other grounds, 659 F. App’x 506 (10th Cir. 2016).

5

An integration clause, sometimes called a merger clause, states

that a contract is the complete and final agreement between the

parties, thus limiting future disputes to the express terms of the

contract. E.g., Keller v. A.O. Smith Harvestore Prods., Inc., 819 P.2d

69, 73 (Colo. 1991).

6

The Andersons direct us to no requirement that a non-reliance

provision must take a certain form, whether that be an integration

clause or something else, other than that it must be “couched in

clear and specific language.” Id. at 74.

15

¶ 32 As relevant here, the parties’ contract contains a “Cost of the

Work” clause that provides:

The term “Cost of the Work” shall mean costs

necessarily incurred by the Contractor in the

proper performance of the Work, excluding the

Contractor’s Fee. . . . Contractor represents

that all rates applied to determine the Cost of

the Work, including all labor, materials,

overhead and fee rates, shall be consistent

with the then-current market rates applicable

to projects of the same general scope and

quality in the region where the Site is located.

The Contractor’s Estimate of the Cost of the

Work is included in Exhibit A, which is based

on bids/proposals Contractor has obtained

from its sub-contractors and on Contractor’s

reasonable estimates of certain items.

Contractor represents and warrants that all

Work necessary to complete the Project is

included in Exhibit A. While Contractor has

made good faith efforts to assure the accuracy

of its estimate of the Cost of the Work,

Contractor does not guarantee that its estimate

will actually be the Cost of the Work. Owner

recognizes that the actual Cost of the Work

could exceed Contractor’s estimate included in

Exhibit A.

(Italicized emphasis added.)

¶ 33 The contract also contains an “Other Conditions or Provisions”

clause that states:

This Contract may be executed in

counterparts, each of which shall be combined

to form one Contract. . . . The terms and

16

conditions set forth herein shall constitute a

solicitation from Contractor to Owner for an

offer to perform the Work as described

above. . . . No enforceable agreement, contract,

or promise to perform shall be formed between

the Parties unless and until an authorized

representative of Contractor executes this

contract.

(Emphasis added.)

¶ 34 In its order, the district court acknowledged that the contract

does not contain a “release of liability and waiver provision, an

integration clause, or an exculpatory agreement.” However, citing

the Cost of the Work clause, the court observed that the contract’s

“non-reliance provision concerns precisely what [the Andersons]

claim [Mr. Scanlan] misrepresented: the cost of building their

home.” The court also noted that the Other Conditions or

Provisions clause, which it described as “akin to an integration

clause,” “further undermines [the Andersons] claim that they

reasonably relied upon [Mr. Scanlan’s] pre-contractual budget

estimate as the actual cost of building their home.”

7

Finally, the

7

In critiquing the district court’s reasoning, the Andersons assert

that the court mischaracterized the Other Conditions or Provisions

clause as “akin to an integration clause.” They also point out that

the Other Conditions or Provisions clause “contains no disclaimer,

17

court took judicial notice that Mr. Anderson is a Colorado

bar-certified attorney to highlight that he was a “sophisticated

party” when he entered into the contract. Given this, the court

concluded that the contract’s clear and specific non-reliance

provision “preempts [the Andersons’] reasonable reliance on the

budget for the cost of building their home.”

¶ 35 In challenging the ruling on its merits, the Andersons’ main

contention appears to be that the non-reliance language in the Cost

of the Work provision does not clearly and specifically disclaim their

reliance on Mr. Scanlan’s representations. In that regard, the

Andersons stress that the “fulcrum” of their complaint “is not that

there was a guaranteed price under the [c]ontract but rather that

waiver, or anti-reliance language of any kind” that would preempt

their reasonable reliance on Scanlan’s representations. It remains,

however, that the court, for the most part, did not disagree with the

Andersons’ characterization of the Other Conditions or Provisions

clause and based its ruling on the non-reliance language in the

Cost of the Work provisions. Thus, whether the Other Conditions

or Provision clause is or is not an effective integration clause, and

whether it is sufficient, standing alone, to limit the Andersons’

reliance, is of little consequence here. Cf. Student Mktg. Grp., Inc. v.

Coll. P’Ship, Inc., 247 F. App’x 90, 99 n.9 (10th Cir. 2007) (analyzing

Keller “to mean that a general integration clause is not sufficient to

bar a claim for negligent misrepresentation” but that an additional

disclaimer “could suffice”).

18

Mr. Scanlan created a superficial budget of made-up numbers

unsupported by bids from subcontractors that could not be relied

on, and he knew it.” That is, according to the Andersons, during

precontract discussions, Mr. Scanlan fraudulently and negligently

misrepresented or failed to disclose that he did not have a firm and

reliable basis for his cost estimates.

¶ 36 However, assuming as we must that Mr. Scanlan’s precontract

statements were false or unsupported, we conclude as a matter of

law that it was unreasonable for the Andersons to rely on Mr.

Scanlan’s unsupported cost estimates considering the clear and

specific language in the Cost of the Work clause. Indeed, by its

plain terms, the clause set forth a cost estimate, attached as

Exhibit A, explaining that the estimate was “based on

bids/proposals Contractor has obtained from its sub-contractors

and on Contractor’s reasonable estimates.”

8

The provision then

clearly and specifically stated that “Contractor does not guarantee

8

We are unable to review Exhibit A, which includes the estimated

costs to build the Andersons’ home, because it is not a part of the

record. We therefore presume Exhibit A would support the district

court’s judgment. See Marchant v. Boulder Cmty. Health, Inc., 2018

COA 126M, ¶ 18 n.2.

19

that its estimate will actually be the Cost of the Work” and that the

Andersons “recognize[] that the actual Cost of the Work could

exceed Contractor’s estimate.” Moreover, to the extent the

Andersons allege they were misled by representations or omissions

concerning the “methodology, reliability, accuracy and control” over

costs, the contract outlines a specific methodology to be used for

calculating how the costs were to be computed — namely, that they

would be based on “then-current market rates” for “labor,

materials, overhead and fee rates.” Further, and more to that point,

how Mr. Scanlan reached the cost estimate ultimately does not

mean much considering that the contract set forth an estimate and,

in no uncertain terms, provided a disclaimer that the estimate was

not fixed and could change.

¶ 37 In addition, it is undisputed that Mr. Anderson — a licensed

attorney — drove most (if not all) of the precontract discussions

between the Andersons and Mr. Scanlan. Thus, we agree with the

district court that, between the contract’s clear and specific

language and Mr. Anderson’s sophisticated status as an attorney, it

was unreasonable as a matter of law for the Andersons to rely on

20

Mr. Scanlan’s precontract budget representations.

9

See J.A.

Walker, 159 P.3d at 132-33 (Hobbs, J., dissenting) (emphasizing

contracting party’s “sophistication” in concluding that reliance was

not justifiable); Steak n Shake, 110 F. Supp. 3d at 1082-83 (noting

contracting party’s “sophisticated” nature in concluding that the

parties’ agreements barred fraudulent inducement claim); see also

Colo. Coffee Bean, 251 P.3d at 19 (“[I]t is simply unreasonable to

continue to rely on representations after stating in writing that you

are not so relying.”) (citation omitted).

¶ 38 Nor are we persuaded, as the Andersons suggest, that the

supreme court’s opinion in Keller requires a different result. In

Keller, the plaintiffs were ranchers who purchased grain storage

silos from the defendant. 918 P.2d at 70. The silos were designed

9

To the extent the Andersons suggest that a non-reliance provision

cannot bar fraud claims, we disagree. See Colo. Coffee Bean, LLC v.

Peaberry Coffee Inc., 251 P.3d 9, 19 (Colo. App. 2010) (concluding

contract barred intentional fraud by nondisclosure claim); Steak n

Shake Enters., Inc. v. Globex Co., 110 F. Supp. 3d 1057, 1082-83

(D. Colo. 2015) (concluding contract barred fraudulent inducement

claim), aff’d on other grounds, 659 F. App’x 506 (10th Cir. 2016).

Likewise, given the “specificity” of the language in the Cost of the

Work clause, we reject the Andersons’ contention that the

non-reliance provision is unenforceable on grounds of public policy.

Colo. Coffee Bean, 251 P.3d at 19.

21

to be airtight, enabling ranchers to store feed indefinitely and cut

losses. Id. at 70-71. Based on representations contained in video

tapes, brochures, and literature prepared by the defendant, the

plaintiffs believed the storage silos would reduce or eliminate the

use of protein supplements in feeding their dairy herd. Id. at 71.

After the plaintiffs began to use the grain silos, however, their

herd’s milk production dropped, and some of the herd became sick

or died. Id. Further, the silos failed to produce the quality of silage

that the defendant had promised. Id. The plaintiffs sued, asserting

a claim for negligent misrepresentation. Id. The defendant moved

to dismiss the claim, asserting that language in the parties’

purchase agreements barred such a claim. Id. at 72.

¶ 39 The purchase agreements in question provided the following:

Buyer recognizes that any advertisements,

brochures, and other written statements which

he may have read . . . as well as any oral

statement which may have been made to him,

concerning the potential of the [silos] . . . are

not guarantees and he has not relied upon

them as such.

. . . .

[Buyer has] read and understood the terms

and conditions of this purchase order

including the warranties, disclaimers and

22

terms and conditions herein given to me,

either by the manufacturer or the seller.

[Buyer relies] on no other promises or

conditions and regards that as reasonable

because these are fully acceptable to [Buyer].

Id. at 74. Rejecting the defendant’s argument, the supreme court

concluded that these non-reliance provisions “simply state that the

[plaintiffs] recognize that certain oral and written statements were

not ‘guarantees’ and that the [plaintiffs] did not rely upon those

statements ‘as such.’” Id. In other words, “[t]he language of those

provisions does not clearly and specifically disclaim reliance by the

[plaintiffs] on all representations made by [the defendant] prior to

the execution of the contract.” Id.

¶ 40 But the alleged misrepresentations and non-reliance language

in Keller are very different from those at issue here. As we read

Keller, the plaintiffs claimed that the defendant misrepresented that

the silos would enable them to store grain indefinitely and reduce or

eliminate the use of protein supplements in feeding their herd. See

id. at 70-71. It makes sense, then, that the purchase agreements’

generic language disclaiming unidentified statements regarding the

guaranteed “potential” of the silos fell short of the “clear and

specific language” required to bar a misrepresentation claim. Id. at

23

74. Here, however, the Andersons’ numerous allegations all relate

to one thing — that Mr. Scanlan misrepresented the estimated cost

of building their home. And, tracking that specific claim, the

contract language here clearly “does not guarantee” that the

estimated cost “will actually be the Cost of the Work” and that the

Andersons “recognize[] that the actual Cost of the Work could

exceed” the estimated cost. Given that this is precisely the kind of

clear and specific non-reliance language that Keller contemplates, it

was unreasonable for the Andersons to rely on Mr. Scanlan’s

precontract cost estimates.

¶ 41 Thus, like the district court, based on the clear and specific

language in the contract, we conclude that the Andersons cannot

show reasonable reliance as a matter of law.

III. Disposition

¶ 42 We affirm the judgment.

JUDGE YUN and JUDGE MOULTRIE concur.