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P employed Hayek, a real estate agent who contacted Ron Lovercheck of Bear Mountain Land Company (D) and discussed O.W. and Margaret Lovercheck's (D1) farm in Goshen County. Hayek, D, and P toured the farm on November 5, 1995. The crops were planted but not growing when they toured the farm. D did mention that there had been some problems with rye in the past, expressing his belief that the problem was minor. P left the meeting with the understanding that the problem was confined to about 100 of the 1,960 acres. D informed P that he had spoken with the former owner of the farm, Ray Headrick (Headrick). Headrick stated that the acreage in question had always produced more wheat then the county average. Headrick also showed D the areas where the rye problem was at its worst. Those areas comprised about 100 acres total, and Headrick said that those areas could grow as much as twenty to twenty-five percent rye. P returned to view the property on ten to twelve occasions after the initial tour. P and D1 entered into a contract for sale of the farm. The contract, drafted by Hayek provided that: Purchaser is not relying upon any representations of the Seller or Seller's agents or sub-agents as to any condition which Purchaser deems to be material to Purchaser's decision to purchase this property. The contract also contained an 'as is' clause, a merger clause, a liberal inspection clause, and a specific objection procedure. The purchase price for the farm was $526,500.00, and the parties closed on May 10, 1996. When the crops came up the rye problem was not minor, but P estimates that there is rye on 1,800 acres, over a third of which was 100% infected. P's expert stated that the extensive rye problem decreased the value of the farm to only $ 392,000.00. P sued alleging that D1 breached the contract for sale, that D and D1 negligently and fraudulently misrepresented the extent of the rye problem that D's fraudulent misrepresentations entitled P to punitive damages, and that Hayek and The Property Exchange breached their duty to delete and/or explain the waiver language quoted above. The district court granted summary judgment in favor of all Ds. The district court awarded the D1 $ 12,811.09 in attorney's fees and $ 819.90 in costs and awarded $ 8,746.12 in costs to D. P appealed.

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