Asuamah v. Haley
| Decision Date | 14 July 2008 |
| Docket Number | No. A08A0209.,No. A08A0210.,A08A0209.,A08A0210. |
| Citation | 293 Ga. App. 11,666 S.E.2d 426 |
| Parties | ASUAMAH v. HALEY et al.; Asuamah v. Cendant Mobility Financial Corporation. |
| Court | Georgia Court of Appeals |
Scoggins & Goodman, David L. Rusnak, Scott H. Michalove, for appellee (case no. A08A0210).
These appeals arise from the grant of summary judgment to the defendants, the listing real estate agent/listing brokerage, and the seller, on the plaintiff/purchaser's claims for fraud, rescission, breach of contract, and negligence. We affirm the judgment in Case No. A08A0209, the action against the real estate agent/listing broker, Barbara Haley and Coldwell Banker Residential Real Estate, Inc. ("Coldwell Banker"). In Case No. A08A0210, we reverse the grant of summary judgment to the seller, Cendant Mobility Financial Corporation ("Cendant"), on the claim that it negligently repaired the property.1 The judgment on the remaining claims is affirmed. The relevant facts follow.
Udeme Asuamah purchased a townhome in Atlanta from Cendant on June 28, 2005. When she moved in one month later, Asuamah discovered waterlogged carpeting and falling sheetrock in the dining room, among other water-related problems. Asuamah contacted Shelly Gee, the real estate agent who handled the transaction for Asuamah, as well as Haley. After speaking with Asuamah, Haley gave her a 20-page mold screening inspection report (the "mold report"), which showed extensive water stains and mold throughout the home. Asuamah had not seen the mold report before she purchased the townhome. Gee, however, admitted that the report had been in the townhome when she first showed it to Asuamah's brother, Philip Samuel Asuamah ("Phil"). Gee claimed that she did not notice it, but that she had given a "stack of information" to Phil. Phil denied ever receiving a copy of the mold report, and it is undisputed that Gee did not give the mold report to Asuamah prior to closing.
Asuamah, however, did not sue Gee. Asuamah filed a complaint against Coldwell Banker, Haley, and Cendant, alleging, inter alia, that her name had been forged on the seller's real estate disclosure sheet ("SRED"), which stated in part that Asuamah acknowledged that she had received a copy of the mold report from Cendant; that material facts and defects in the property were not disclosed to her; and that the defendants and their attorneys conspired to defraud her. These claims were based in part on the defendants' failure to disclose that the property previously had been the subject of litigation due to water-related problems. Asuamah sought to rescind the contract and to recover consequential and punitive damages, as well as attorney fees. She amended her complaint to add claims of breach of contract and negligence against Cendant. Coldwell Banker and Haley moved for summary judgment, and Cendant joined the motion. In separate orders, the trial court granted summary judgment to the defendants and entered final judgment in their favor. In Case No. A08A0209, Asuamah appeals the judgment entered in favor of Coldwell Banker and Haley, and in Case No. A08A0210, she appeals the judgment entered for Cendant. Because the enumerated errors are similar, we consolidate these appeals for disposition in a single opinion. Although Asuamah has enumerated thirteen errors, they relate to only five claims: fraud, breach of contract, equitable rescission, negligence, and discovery. For clarity, we group the enumerations of error according to claim.
1. Asuamah contends that the trial court erred in granting summary judgment to the defendants on her claim for fraud and rescission. In a related enumeration of error, Asuamah claims that the trial court granted summary judgment against her solely on the basis of her deposition testimony that she would not have purchased the property had she known of the mold report. We disagree.
A fraud action requires proof of five elements: (1) a false representation or omission of a material fact; (2) scienter; (3) intention to induce the plaintiff to act or refrain from acting; (4) justifiable reliance; and (5) damages.2
For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort. In deciding whether the evidence presented is sufficient to raise a triable issue as to each element, the court must resolve all disputes of fact and indulge all reasonable inferences therefrom in favor of the nonmoving party.3
We conduct a de novo review of the law and the evidence on appeal from the grant of a motion for summary judgment.4 Because defendants need eliminate only one essential element of Asuamah's claim to prevail at summary judgment,5 "we need not address all the issues raised on appeal or in the motion for summary judgment to resolve this appeal."6 Even viewed with every inference indulged in favor of Asuamah, the evidence demands a judgment for the defendants on the fraud claim because the evidence demonstrates conclusively that they disclosed the mold report and that Gee had the mold report and failed to disclose it to Asuamah. Thus, she cannot establish that, with the exception of alleged negligent repairs by Cendant, her damages flowed from the actions of these defendants.
In Haley's affidavit tendered in support of the motion for summary judgment, Haley averred that Cendant provides real estate location services to transferred employees, and Coldwell Banker manages and lists those employees' properties; Coldwell Banker first listed the townhome at issue in 2000 for Cendant, which was handling the property for a transferred employee; in 2001 the property was sold to Beverly McCannon; McCannon sued these same defendants for failing to disclose water leaks that led to mold contamination; the McCannon litigation settled in 2004, and Cendant took back the property. Haley further averred that after the suit was settled, the property listing was reassigned to her, and she hired a company to check for mold contamination, resulting in the mold report; that a company was hired to remediate the mold contamination; the company performed the work and provided a transferable antimicrobial warranty; and that she then hired contractors "to put the property back together." Believing that the problems were repaired and the mold was gone, Haley relisted the property for sale. She put a set of blank contract forms, the SRED, the mold report, a lead paint disclosure, and a few other items on the kitchen counter. The mold report revealed extensive water stains and mold throughout the home and stated that "water damage was previously remediated in the residence." Haley received an offer from Asuamah through Gee and negotiated the terms of the contract through Gee. Haley requested and received from Gee five original contracts signed by Asuamah and Gee; a SRED signed and initialed by Asuamah and a witness showing that Asuamah had received all the disclosure documents; a lead paint disclosure signed and initialed by Asuamah; and a corporate listing form signed by Gee and Asuamah explaining that the property was being sold by a corporate client rather than an individual seller.
Upon receiving these documents, Haley believed that Asuamah had received and reviewed all the disclosure documents, including the mold report. Haley averred that she did not forge Asuamah's name or initials to the SRED. Haley sent the contracts to Cendant's signing agent, who signed and returned them to Haley. Haley kept one and sent the other four originals to Gee. Asuamah had the property inspected, and Haley received from Gee an inspection report showing minor issues. Haley and Gee negotiated an agreement whereby Cendant would pay $540 to a contractor of Asuamah's choosing in lieu of making repairs. The day before closing, Haley went to the property to check for any moisture problems; she took off her shoes, walked through the dwelling, and did not observe or feel any signs of leaks, moisture or mold. A month after the closing, Asuamah called Haley to report a leak and asked whether there were any disclosures for the property. Haley stated that she had a signed document indicating that Asuamah had already received them. Asuamah realized that she had not and asked for a copy, which Haley provided.
In her deposition, Haley admitted, however, that the homeowner's disclosure to which the SRED referred was not from McCannon; rather, it was provided by a prior owner, Sharon Hunter. Haley testified that she first became involved with the property in 2001, when it was under contract with McCannon; that some work was performed by a construction company before that closing, that the company had reported "massive amounts of water trapped behind the walls"; and that after closing, McCannon complained about water penetration and mold contamination. After Cendant took back the property and Haley assumed its management, all of the back walls, the fireplace mantels, and sheetrock under the kitchen window had been removed. With verbal approval from Cendant, Haley authorized various contractors to repair the property.
Gee deposed that when she showed the property to Asuamah's brother, Phil, she picked up a stack of documents that were laying on the kitchen counter. The documents included the mold report, which Gee claimed she did not notice. Phil and Gee spoke with Asuamah, and she decided to make an offer but instructed Gee to deal with Phil. Gee faxed a contract to Phil, and then called Haley to communicate the offer. After reaching a verbal agreement with Haley on price and closing costs, Gee met with Asuamah at the property. Gee testified that she called Haley from the property because the stack of papers in the home seemed smaller; Haley told her to look in the drawers,...
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