Hightower v. Century 21 Farish Realty
| Decision Date | 26 August 1994 |
| Docket Number | No. A94A1108,A94A1108 |
| Citation | 214 Ga.App. 522,448 S.E.2d 271 |
| Court | Georgia Court of Appeals |
| Parties | HIGHTOWER v. CENTURY 21 FARISH REALTY. |
Gary P. Bunch, Carrollton, for appellant.
Lefco & Blumenthal, Stanley M. Lefco, Atlanta, Tisinger, Tisinger, Vance & Greer, C. David Mecklin, Jr., Michael T. Camp, Carrollton, for appellee.
A. Derrell Hightower appeals the trial court's grant of summary judgment to Century 21 Farish Realty ("Farish Realty").
Several years after Hightower purchased a lake-front lot from a third party with Farish Realty as the seller's agent he learned he could not put a septic tank on the lot. Hightower then sued Farish Realty asserting a claim of fraud in that, according to Hightower, Farish Realty represented he could build a septic tank on the lot. He also asserted that he would not have purchased the lot if he had known he could not build a septic tank. Farish Realty contends, however, that Hightower cannot recover because he signed a sales contract that stated he had not relied upon any representations by Farish Realty, because no negligent representations were made, and because Hightower failed to exercise reasonable diligence by ascertaining whether a septic tank could be installed before buying the property.
The record shows that at a family outing Hightower asked his sister-in-law, a sales agent for Farish Realty, if she could show him a lot on a lake where a retirement home could be built. Later, the sister-in-law showed them the particular lake-front lot involved in this appeal. During a visit to the lot, the sister-in-law told Hightower that a septic tank would be needed on the lot. The record is clear, however, that no one represented to Hightower that a septic tank could be installed on the lot. Although Hightower apparently spoke to the seller about the lot prior to the sale, personally walked the lot several times, caused a survey to be run, and had a title search conducted, he did not test the soil to determine whether a septic tank could be installed. He maintains, however, he saw neighboring lots had septic tanks.
Hightower signed a contract to purchase the lot on August 1, 1987. The contract specifically provided that the purchaser had the right to inspect, examine, test, and survey the property, and also provided that the purchaser acknowledged that he had not relied upon any advice or representations by Farish Realty The contract also provided:
In May 1992, Hightower applied for a building permit for his retirement home, but was told that he first must obtain a septic tank permit. When he applied for the septic tank permit, his application was denied. Thereafter, in July 1992, Hightower filed this action alleging fraud and seeking compensatory damages, punitive damages, and attorney fees. Before filing his action for fraud, Hightower did not attempt to rescind the contract and his complaint did not seek rescission. It was not until March 1993, that Hightower attempted to rescind the contract. Then, on May 11, 1993, Hightower filed an amended complaint alleging counts of negligent misrepresentation and professional negligence.
After Farish Realty moved for summary judgment, the trial court granted summary judgment to Farish Realty on the counts of the complaint and amended complaint because the trial court found that Hightower was bound by the terms of the contract, including the disclaimer quoted above, which precluded his reliance upon any representations made by Farish Realty. Later, however, the trial court vacated the grant of summary judgment on the counts alleged in the amended complaint. Farish Realty's subsequent motion for summary judgment on these claims was granted as the trial court found that the claim for...
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...he may affirm the contract and sue for damages resulting from the fraud.’ ” 586 S.E.2d at 728 (quoting Hightower v. Century 21 Farish Realty, 214 Ga.App. 522, 448 S.E.2d 271 (1994) ) (emphasis added). The court also observed that the existence of a merger clause will prevent recovery for fr......
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