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AMERICAN TOWERS OWNERS v. CCI MECHANICAL12/20/1996
ts of which the seller was aware, the buyer may have a cause of action in fraud. Therefore, the circumstances presented to the purchaser of a residence are not closely analogous to those of a relatively powerless lessee.
875 P.2d at 582-83 (emphasis added).
The Association contends that Maack is distinguishable because the plaintiff was "an experienced attorney" who "conceded that a reasonable inspection of the home at the time of the purchase would have revealed all the alleged defects." We disagree and find that the reasoning in Maack is sound. The terms of a contract for the sale of a residence are much more open to negotiation than a rental
contract because the buyer and seller have similar bargaining power. If the seller refuses to accede to an express warranty, nothing prevents the buyer from halting negotiations and looking elsewhere. Tenants often do not have that luxury and are more prone to take what they can get.
The Association contends that condominium purchasers are especially susceptible to latent defects and do not have a feasible opportunity to conduct an inspection. We disagree. The condominium buyer, like the home buyer, is investing in the ownership of a residence rather than making rental payments for a transient dwelling. The buyer has the incentive and the means to inspect the unit before purchase. As noted in the economic loss section above, a condominium homeowners' association typically oversees the management, maintenance, and operation of the units. The potential buyer can contact this association, which is equipped to know of, respond to, and guard against defects in the complex. We are unconvinced that a condominium buyer is analogous to "a relatively powerless lessee." Accordingly, we affirm the district court's denial of this claim.
BLOCK ASSOCIATES, INC.
All of the defendants in this action except Block Associates, Inc. (BAI), responded to the Association's second amended complaint and were eventually granted summary judgment. Consequently, the Association filed a motion for entry of default judgment and an affidavit of its expert witness ostensibly establishing damages against BAI in the amount of $10.23 million. The district court directed entry of BAI's default but denied the request for a money judgment, holding that granting one "would be inconsistent with the law of this case as determined by this Court's rulings on plaintiff's claims against the other defendants."
We recently explained the law-of-the-case doctrine in Thurston v. Box Elder County, 892 P.2d 1034 (Utah 1995):
court is justified in refusing to reconsider matters it resolved in a prior ruling in the same case for reasons of efficiency and consistency. The doctrine is not a limit on power but, "as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided." It rests on " 'good sense and the desire to protect both court and parties against the burdens of repeated reargument by indefatigable diehards.' "
Id. at 1038-39 (emphasis added) (citations omitted).
BAI had originally functioned as the corporate general partner of Block 58 Associates, one of the defendants that already had been granted summary judgment. BAI had become defunct and was involuntarily dissolved by the Department of Commerce on September 1, 1989, two years before this action was originally filed. For the district court to have ruled as the Association requested would have created diametrically opposed and inconsistent judgments in this case.
"Defendant's failure to a
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