Ray v. Montgomery

• Decision Date: 24 December 1980
• Citation: 399 So.2d 230
• Parties: Henry Lewis RAY and Patricia Reese Ray v. Dean H. MONTGOMERY et al. 79-434.
• Court: Alabama Supreme Court

Page 230

399 So.2d 230

Henry Lewis RAY and Patricia Reese Ray v. Dean H. MONTGOMERY et al.

79-434.

Supreme Court of Alabama.

Dec. 24, 1980.

J. Paul Whitehurst and Walter B. Henley of Henley, Clarke & Watson, Northport, for appellants.

Carl W. Albright, Jr. of Rosen, Wright, Harwood, Albright & Cook, Tuscaloosa, for appellees M. C. Montgomery and Dean H. Montgomery.

Raymond E. Ward of Ray, Oliver & Ward, Tuscaloosa, for appellee Guaranty Pest Control, Inc.

SHORES, Justice.

This is an appeal by plaintiffs, Henry L. Ray and Patricia R. Ray, purchasers of a used residence with termite damage, from a final judgment in favor of defendants entered on the following motions: A motion to dismiss of defendants Minniesota Bailey and Harold Knight, as administrator ad litem for E. W. Bailey, from whom the Montgomerys purchased the residence, and the motions for summary judgment of defendants Dean H. Montgomery and M. C. Montgomery, ¹ who sold the residence to the Rays, and of defendant Guaranty Pest Control, issuers of a termite control service contract and bond to the Baileys. We affirm the trial court's decision.

In October, 1977, the Baileys sold the house and three acres in Coker, Alabama, to the Montgomerys, who then sold it to the Rays in November, 1977. Mrs. Dean Montgomery was a licensed real estate salesperson during this period.

In 1973, the Baileys contracted with Guaranty Pest Control for termite extermination. The termite treatment bond was renewed, and the house treated yearly until 1977.

The Rays alleged that, at the time of the November, 1977, sale, the Montgomerys had represented that they had been in the attic and under the house and that the house was supported by hewn pine timbers, had good support, was "a nice house," was solid and was in good condition. The contract of sale between the Montgomerys and the Rays, and signed by the Rays, contained provisions that the sellers made "no warranties other than as to title and (have) no liability for any defects or repairs" and that the "house (was) sold in 'as is' condition." Shortly after the Rays moved in, they discovered termite damage to the substructure of the house.

The Rays filed suit against the Montgomerys, the Baileys, and Guaranty Pest Control. Mr. Bailey died while the suit was pending, and an administrator ad litem was appointed. The Rays in their complaint and on appeal have asserted the following theories of liability: (1) Fraud and misrepresentation by the Montgomerys and the Baileys; (2) breach by the Montgomerys of the duty to disclose termite damage to the Rays as purchasers; (3) fraud by Guaranty Pest Control in failing to disclose termite damage to the Baileys and breach of its service contract by Guaranty Pest Control in failing to adequately treat the house and consequent liability to the Rays as third-party beneficiaries of that contract. We find no merit in any of these theories and, therefore, affirm the trial court's judgment.

Summary judgment shall be rendered if the pleadings, depositions, interrogatory answers, or affidavits submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), ARCP. The burden of proof is on the movant to establish the absence of any issue of a material fact. Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976). If there is a scintilla of evidence supporting the position of the party against whom the motion is made, summary judgment cannot be granted. Rule 56(c), ARCP, Committee Comments; Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975). The court must view the evidence and all reasonable inferences to be drawn from the evidence in the light most favorable to the non-moving party. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976). However, to defeat a motion for summary judgment, the non-moving party must present facts that are properly admissible in evidence. Morris v. Morris, 366 So.2d 676 (Ala.1978).

The Rays rely on the statements by the Montgomerys that the house was solidly supported in order to challenge the granting of summary judgment and to support their theories of misrepresentation by the Montgomerys. However, the statement relied on does not present a scintilla of evidence to support a claim based on misrepresentation nor is it admissible in support of the contract theory under the parol evidence rule as it contradicts the written contract which contained an "as is" provision. On the latter point the appellant relies on Hibbett Sporting Goods, Inc. v. Biernbaum, 375 So.2d 431 (Ala.1979), to allow admission of the parol evidence in spite of the "as is" cause. In that case, however, the parties both agreed to the inclusion of the clause for a single purpose, and both acknowledged that the writing was not a true and complete expression of their agreement. Such is not the case here.

The statement is not admissible to show that the execution of the instrument was procured by fraud since it is itself insufficient evidence of fraud. The representations are statements of the seller's opinion and not of fact. Such a statement is actionable only if it is a misrepresentation of material fact acted upon by the party to whom it was made. Such is not the case here.

Nor does any fraud exist by reason of the purported confidential relationship between the Rays...