Opinion
No. 91CA0196
Decided February 27, 1992. Rehearing Denied May 14, 1992. Certiorari Denied November 9, 1992 (92SC388).
Appeal from the District Court of the City and County of Denver Honorable R. Michael Mullins, Judge
John F. Griebel, Richard J. Lesch, for Plaintiff-Appellant.
Maurice Reuler Associates, P.C., Maurice Reuler, Robert W. Becker, for Defendant-Appellee.
Plaintiff, High Country Movin', Inc., appeals the summary judgment entered in favor of defendant, U.S. West Direct Company. We affirm.
In 1983, plaintiff began purchasing classified advertisements under the heading "Movers" in the Yellow Pages directories published by defendant. In 1989, plaintiff commenced this action, claiming that in the directories issued during the years 1985-1987, defendant had violated its established publication procedures by improperly positioning plaintiff's advertisements toward the back of the "Movers" section. In its complaint, plaintiff also alleged that, following the publication of each of these directories, defendant had acknowledged the placements were erroneous and had promised the errors would not be repeated. Plaintiff sought recovery under theories of negligence and breach of contract.
Defendant moved for summary judgment, arguing plaintiff could not recover because each of the annual advertising contracts that were executed by the parties contained a general integration clause and a prominent disclaimer stating: "[n]o specific position for display advertising is guaranteed in any issue." Relying on these contract provisions, the trial court entered summary judgment for defendant.
I.
On appeal, plaintiff asserts that its claim of negligence was, in reality, a claim for negligent misrepresentation and that its allegations regarding defendant's oral assurances present disputed issues of fact precluding summary judgment. This contention is without merit.
Colorado has adopted Restatement (Second) of Torts § 552 (1965) regarding the elements necessary to state a claim for negligent misrepresentation. See Keller v. A.O. Smith Harvestore Products, Inc., 819 P.2d 69 (Colo. 1991); First National Bank v. Collins, 44 Colo. App. 228, 616 P.2d 154 (1980). That Restatement section provides in relevant part:
"One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information."
Here, plaintiff readily acknowledges that a party seeking to establish a claim for negligent misrepresentation must show the defendant failed to act reasonably in ascertaining the accuracy of the information supplied or in communicating the information. See Ebrahimi v. E.F. Hutton Co., 794 P.2d 1015 (Colo.App. 1989). However, despite this acknowledgment, plaintiff does not claim that defendant was in any way negligent in making the promises regarding the placement of the advertisements; instead, plaintiff asserts that defendant may be held liable for negligently failing to perform as promised.
In as much as the tort doctrine of negligent misrepresentation applies only when there has been a misrepresentation of an existing fact, this assertion is clearly untenable. Thus, contrary to the position taken by plaintiff, a claim of negligent misrepresentation cannot be based solely on the nonperformance of a promise to do something at a future time. Lowell Staats Mining Co. v. Pioneer Uravan, Inc., 878 F.2d 1259 (10th Cir. 1989); City of Warrensburg v. RCA Corp., 571 F. Supp. 743 (W.D. Mo. 1983).
Here, the asserted failure of defendant to perform as promised constitutes, in essence, a breach of contract claim. And, as such, recovery thereon was precluded by the disclaimer in the contract. To the extent that plaintiff asserts a claim based on deceit, we conclude this contention fails because there were no assertions or evidence that at the time the plaintiff was given the assurances the defendant had no intent to comply with those representations. Restatement (Second) of Torts § 530 (1965), entitled "Misrepresentation of Intention." The Comment on Restatement (Second) of Torts § 530(1) (1965) (paragraph b) provides in pertinent part:
"To be actionable the statement of the maker's own intention must be fraudulent, which is to say that he must in fact not have the intention stated. . . . If the statement is honestly made and the intention in fact exists, one who acts in justifiable reliance upon it cannot maintain an action of deceit if the maker for any reason changes his mind and fails or refuses to carry his expressed intention into effect. If the recipient wishes to have legal assurance that the intention honestly entertained will be carried out, he must see that it is expressed in the form of an enforceable contract, and his action must be on the contract."
Applying this analysis, we conclude that the trial court did not err in entering summary judgment in favor of defendant.
II.
Plaintiff also asserts that the entry of summary judgment was improper because there were material issues of fact concerning whether defendant had waived its rights under the contract disclaimers by acknowledging the placement errors and promising to correct them in future directories. We disagree.
Waiver of a contract term occurs when a party to the contract is entitled to assert a particular right, knows the right exists, but intentionally abandons that right. Ebrahimi v. E.F. Hutton Co., supra. Waiver may be shown by a course of conduct signifying a purpose not to stand on a right, leading one, by a reasonable inference, to the conclusion that the right in question will not be insisted upon. Pastor v. San Juan School District No. 1, 699 P.2d 418 (Colo.App. 1985).
Here, plaintiff concedes that, despite the alleged acknowledgements and assurances by defendant, the parties continued to execute written contracts containing disclaimer provisions. Under these circumstances, we conclude that defendant's conduct did not amount to a voluntary relinquishment of its rights under those provisions.
Plaintiff's remaining contentions are without merit.
The judgment is affirmed.
JUDGE MARQUEZ concurs.
JUDGE DUBOFSKY dissents.