Smith v. J.H. Berry Realty Co., Inc.

• Citation: 528 So.2d 314
• Parties: Harold L. SMITH and Mavis L. Smith v. J.H. BERRY REALTY COMPANY, INC. 86-455.
• Decision Date: 24 June 1988
• Court: Supreme Court of Alabama

Page 314

528 So.2d 314

Harold L. SMITH and Mavis L. Smith v. J.H. BERRY REALTY COMPANY, INC.

86-455.

Supreme Court of Alabama.

June 24, 1988.

John F. Kizer, Jr., of Kizer & Bennett, Birmingham, for appellants.

Frank M. Bainbridge, and Bruce F. Rogers of Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellee.

ALMON, Justice.

The plaintiffs, Harold and Mavis Smith, appeal from a summary judgment granted for J.H. Berry Realty Company ("Berry Realty") in a fraud action.

The alleged fraud concerns a representation by an agent of Berry Realty that a house purchased by plaintiffs was located on a parcel of land in such a way as to be in compliance with zoning regulations. This case has a rather long history. See Smith v. City of Gardendale, 508 So.2d 250 (Ala.1987).

In February 1979, the Smiths were interested in a new home. They were shown the property at 944 Brookridge Drive in Gardendale, Alabama, by an agent of Berry Realty. On February 11, 1979, a sales contract was executed for the purchase of the home.

The fence in the back yard is located approximately one foot from the property line. Due to the angle at which the house is situated on the lot, the fence is approximately eighteen and one-half feet from the rear of the house at one end. The Smiths asked the agent if the position of the house and fence complied with applicable regulations. The agent answered that they did. Prior to closing, Mr. Smith investigated the matter by visiting the building inspector of the City of Gardendale, Mr. George Malone. Mr. Malone accompanied Mr. Smith to the city clerk's office, where Mr. Smith was informed by employees of that office that the home complied with the City of Gardendale building code. Mr. Smith specifically asked about the requirements of a rear lot line. Mr. Smith also obtained a copy of the restrictions promulgated by the Birmingham Regional Planning Commission. The plans for construction had been submitted to the City and approved. ¹

Mr. Smith testified in this regard as follows:

"Q. At the time you first saw the house was there a fence constructed on the rear lot line of the house?

"A. There was a fence back there, and at that time it was approximately one foot on this side of what was supposed to be the rear yard line.

"Q. Okay. Were you aware of the location of the fence when you first saw the house?

"A. Oh, yeah....

"...

"Q. Now, at any time prior to the time the sale was closed on April 3rd, 1979, did you have occasion to speak to a Mr. George Malone, who is the Building Inspector of the City of Gardendale?

"A. I think that I only talked to him one time.

"Q. And when would that have been?

"A. It could have been any date from three to seven days before closing, if we closed on the third day of April.

"Q. All right. That's close enough. What was discussed between you and Mr. Malone on the one occasion you met with him?

"A. Now, here, again, is a case of where I can remember almost verbatim what was said.... I walked over and introduced myself and told him who I was and I told him--now this is almost verbatim--that I would like to see the Gardendale Building Code, and I kept calling it the Gardendale Building Code, because I wanted to be able to read and satisfy in my own mind that there was no violations the way the code read as to where that house was situated on the lot.

"...

"Q. All right. I take it that when you first looked at the house you liked the house or you wouldn't have bought it?

"A. Still like the house.

"Q. And I take it also that when you looked at the house the location of the house on the lot was not particularly troublesome to you when you first saw it?

"A. I asked a lot of questions about it. I would have liked to have had more back yard, and Mr. Brooks knows this.

"Q. But you were familiar with the way the house sat on the lot?

"A. Oh, yes.

"Q. It was very easy for you to see what your back yard was like?

"A. Oh, yes. There's no question. You could see it.

"...

"Q. If the violation were removed, then I take it that you would be perfectly satisfied with it?

"A. If I had twenty-five feet back there, I'd be the happiest man in Brentwood.

"Q. Well, now, you didn't have twenty-five feet when you first saw the house?

"A. I tried to buy twenty-five feet."

The Smiths purchased the property on April 3, 1979. In the summer of 1979, the Smiths and J.H. Berry, owner of Berry Realty, received a letter from the City informing them that the rear lot set-back line was in violation of the building code of the City of Gardendale. This was the first notice to either of the parties that there was a violation of the zoning law. The Smiths have also received notification from the building inspector that a variance from strict compliance with the zoning regulations is available to correct the violation. The Smiths declined the City's request that they apply for a variance.

The Smiths brought this action, alleging that they were fraudulently induced to purchase the home by misrepresentations by Berry Realty concerning the property's compliance with the building code and alleging that they have suffered damages.

The elements of the tort of fraudulent misrepresentation are (1) a false representation (2) regarding a material existing fact, (3) which the plaintiff relies upon, and (4) damages proximately caused by the misrepresentation. Roney v. Ray, 436 So.2d 875 (Ala.1983); ...