Webb v. Rushing, A89A1862
| Decision Date | 06 March 1990 |
| Docket Number | No. A89A1862,A89A1862 |
| Citation | 194 Ga.App. 732,391 S.E.2d 709 |
| Parties | WEBB et al. v. RUSHING et al. |
| Court | Georgia Court of Appeals |
Oldfield & Wilson, William G. Cromwell, Savannah, for appellants.
Jones, Bordeaux & Associates, H. Gregory Fowler, Savannah, for appellees.
Appellants brought suit against appellees, alleging fraudulent concealment and misrepresentation regarding termite damage and roof defects in the sale of a house. Summary judgment was granted to the appellees and this appeal followed.
Prior to closing on the sale, appellants conducted two visual inspections of the residence. On the first visit, appellants viewed the complete interior, including the roof and attic. They found no evidence of insect infestation or water or structural damage inside. However, they did discover a warped, discolored area on the ceiling of the porch, which Mr. Rushing identified as a leak, the only leak in the roof. Following that initial visit, the parties agreed on a purchase price and appellants, though aware of the leaks on the porch, signed a document certifying their inspection and their judgment that the house was in good working order, the roof was water tight, and there were no broken panes.
Between the two visits, an exterminator was hired to provide a termite inspection letter. He discovered and treated a "minor" infestation of subterranean termites, but reported that the house was free of other wood destroying insects or fungus, structural damage, or rotten timbers. During this interim, a Veterans Administration appraiser also inspected the house and found no damage.
By the second visit, Mr. Rushing had repaired the porch leak, which the appellants re-examined, as well as the rest of the house. They signed two inspection documents prepared by the exterminator reporting his findings. The second document, reflecting the results of a re-inspection after treatment, recited no active infestation or damage.
Shortly after appellants moved in, the den roof leaked during a storm. They then noticed a patch in the roof in the area of the leak. When Mr. Rushing was contacted, he remembered there once had been a leak in the den. Subsequently, more leaks developed, most of which have gone unrepaired. Appellants also discovered termites in the kitchen and den. An exterminator's investigation revealed insect infestation and damage to the den floor, the subflooring, and the frame and jambs of the entrance door. It was also apparent that some of the den floor tiles had been patched and structural repairs were made in other areas of the house during the thirty-three years the appellees resided there.
1. Appellants contend in their first enumerated error that the trial court erred in determining that the appellants presented no evidence concerning appellees' knowledge of pest damage.
Lively v. Garnick, 160 Ga.App. 591, 593, 287 S.E.2d 553 (1981).
The record reveals that appellees occupied the home for thirty-three years. During those years, various repairs were made. There is no indication that prior to the completion of the exterminator's inspection appellees knew of any pest infestation or damage. Appellants urge the court to infer actual knowledge from the repairs which they allege were made to conceal damage. The trial court found, however, and we agree, that at best this knowledge would be constructive, which is insufficient to support an action for fraud.
2. Appellants contend the court erred in...
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