Harrell v. Dodson
| Decision Date | 08 May 1981 |
| Citation | 398 So.2d 272 |
| Parties | James Noble HARRELL et al. v. Hal M. DODSON, Jr., et al. 79-277. |
| Court | Alabama Supreme Court |
George Beck, Montgomery, for appellants.
Jere L. Beasley and Frank M. Wilson, Montgomery, for appellees Hal M. Dodson, Jr. and Sharon D. Dodson.
C. Lanier Branch, Montgomery, for appellee Rossi & Turner Realty, Inc.
Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellees Jean M. Evans and Stowers-Abrell, Inc.
This action was brought by James N. Harrell and his wife Jennifer W. Harrell for damages allegedly suffered by them as a result of fraudulent misrepresentation and concealment, negligence and wanton misconduct in connection with the sale to them of a dwelling house.
The Harrells appeal from the final judgment entered on a directed verdict in favor of Hal M. Dodson and wife Sharon D. Dodson, sellers of the house; Rossi & Turner Realty, Inc., their broker; Stowers-Abrell, Inc., purchasers' broker; and Jean Evans, its agent. We affirm.
The Dodsons sought to sell their fifty year old house through Rossi & Turner Realty, Inc., using their daughter Cathy Berman as listing agent. The house was sold to Mr. and Mrs. Harrell who had previously engaged the services of Jean Evans, a salesperson of Stowers-Abrell, Inc., to locate a house for them.
The Harrells were first shown the house by Jean Evans. When questioned about Mrs. Evans's representation concerning the house Mrs. Harrell testified as follows:
Q During your observation of the house, did you have an occasion to ask Mrs. Evans any questions about the condition of the house?
A Well, after we got around the house, I asked her questions. I asked her specifically about the wiring and the plumbing and the condition of the roof, the possible condition of the foundations.
....
Q Did she reply?
A She did. She said that if the property passed the VA appraisal, it would be basically sound and she said we would not have to worry.
Q Did she say it would be VA appraised?
A Yes, she did.
Q What did she say about that?
A As I recall, she said the appraisal would be done. It hadn't yet been done.
Q Did you ask her about these conditions one time or more than once?
A I asked her about the conditions probably several times but at the same period of time.
Q In other words, would you move into one room and ask about the condition or were you all in one room standing
A No, we were all in one room standing.
Q During this conversation, you asked her several times about the condition of the house?
A Yes.
Q And what was her response each time?
A That we would not have to worry because it would be looked at professionally. It would be appraised.
Q Did she say by whom it would be appraised?
A She said the Veterans Administration. It would be appraised and inspected by the Veterans Administration.
Neither Jean Evans, nor any of the other defendants, made any other representations regarding the condition of the house with the exception of a description of it contained in a multiple listing book. Mr. Harrell testified he had seen the listing book and it stated the house was in excellent condition. That listing had been taken by Cathy Berman and placed with the multiple listing service through Rossi & Turner Realty, Inc.
The Harrells inspected the house and satisfied themselves that it was in good condition. It was inspected by a VA approved appraiser upon the basis of whose appraisal the house was approved for a VA guaranteed loan on it as an existing house, not newly constructed. After the loan was closed on July 15, 1978, the sale concluded, and the Harrells had moved into the house, cracks in the walls, bulges in paneling, warped doors and frames and unlevel floors began to appear. The Harrells consulted two structural engineers who attributed these problems to settlement and movement of the house and concluded that repairs would be costly.
With the exception of the Dodsons' testimony, there was no evidence the other defendants knew any more about the condition of the house than a visual inspection, such as the one made by the Harrells, would reveal. Regarding the Dodsons' knowledge of the condition of the house, there was evidence that Mr. Dodson had, on occasion, leveled the floors, patched mortar cracks and replaced bricks in the exterior brick work. Fifteen to seventeen months before selling the house, Mr. Dodson had hung new wallpaper over an area where cracks in the plaster had previously been filled.
We must decide whether there was sufficient evidence to present a jury question as to whether any of defendants were guilty of fraudulent misrepresentation or concealment, negligence or wanton misconduct proximately resulting in damage to the Harrells.
First we address the issue of misrepresentation. The elementary rule is that evidence of misrepresentation of a material fact must be shown to support a claim for damages on account of a misrepresentation. Code 1975, § 6-5-101. This court has stated that:
Whether a given representation is an expression of opinion or a statement of fact depends upon all the circumstances of the particular case, such as the form and subject matter of the representation and the knowledge, intelligence and relation of the respective parties. The mere form of the representation as one of opinion or fact is not in itself conclusive, and in cases of doubt the question should be left to the jury. (Citations omitted.)
....
Whenever a person states a matter which might otherwise be only an opinion, not as a mere expression of his own opinion but as an existing fact material to the transaction, so that the other party may reasonably treat it as a fact, the statement clearly becomes a statement of fact. (Citations omitted.) (Fidelity & Casualty Company of New York v. J. D. Pittman Tractor Company, 244 Ala. 354, 358, 13 So.2d 669, 672 (1943).)
The representation of Jean Evans which we have quoted is, in our considered opinion, not a misrepresentation of material fact but a statement of opinion only. Although there is however testimony that Jean Evans made that statement in response to the Harrells' specific inquiries, the statement itself and the circumstances under which it was made leave no doubt in our minds that it was a sales "puff." The testimony of Mr. Harrell affirmatively supports this conclusion. On cross-examination Mr. Harrell testified as follows:
Q Well, what representation you have filed a suit against her, and you say in the complaint that Mrs. Evans made false statements to you concerning this transaction, and I want you to tell us what those false statements are.
A Well, I think that the point here is that the house was probably not even as Mrs. Evans thought it was. Now, I don't want to be you know, this is not a personal vendetta, but I'm saying that the house was sold as one thing and turned out to be another thing, and that the agent of that sale happened to be Mrs. Evans.
Q To your knowledge, did Mrs. Evans have any knowledge of any of the defects that you later found?
A To my knowledge, no.
Q Did she, to your knowledge, conceal any condition?
A I would have no way of knowing this.
Q All right. So, do you know of any facts that have led you to believe
A Nothing that would lead me to suppose so.
Q that she either made any false statements to you or concealed any facts from you? Do you have any knowledge of any facts of that?
A I'm hard pressed to know what, you know, what kind of evidence that I could have to know, I mean
Q That's what I am asking you, what evidence do you have?
A I don't know.
Q All right, sir. In regard to the VA appraisal, did she make any representations to you as to what that appraisal represented, or what it was supposed to be?
A I don't recall. I don't recall the, you know, exact discussion about the VA, except I remember Mrs. Evans saying the VA, you know, approved it, it had to be basically sound. This did not distress me because I certainly would assume that myself.
Q You would assume that was the case also?
A Absolutely....
At the close of his testimony Mr. Harrell reiterated his testimony:
Q All right. Now, in your complaint, Mr. Harrell you say that Mrs. Evans the plaintiff requested of defendant agent as to the condition of the roof, foundation, sewer, plumbing, electrical wiring, and general soundness of the residence, and plaintiff inquired of defendant agent and by the way, defendant agent is Mrs. Evans, and that's how she is identified in the complaint as to whether said residence would be thoroughly inspected and appraised, and defendant agent stated in reply that plaintiff could rest assured that if the residence passed the VA inspection and appraisal, then the house was sound; is that the allegation? Tell me about any conversations in which Mrs. Evans said that the condition of the roof, foundation, sewer, plumbing, and electrical wiring was sound. Is that a specific thing that she said to you all, either you or your wife?
A I don't know whether, you know, I don't know to what extent these problems were addressed.
Q Are you saying that just in general she said that the house appeared sound?
A This is my...
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