Shaw v. Robertson
307 Ga. App. 337
| Ga. Ct. App. | 2010Background
- Shaw purchased real property on March 24, 2003, and it flooded in September 2004 after Hurricane Ivan.
- Shaw sued in September 2008, asserting fraud and conspiracy to defraud by the seller, broker, and agents for failing to disclose prior flooding and flood-zone location.
- The trial court granted summary judgment to all defendants, finding Shaw failed to show due diligence and justifiable reliance.
- Shaw did not inspect the house, conduct independent due diligence, review flood maps, or interview neighbors; she relied on disclosures and the contract to purchase 'as is'.
- Closing documents showed a flood survey and a separately issued appraiser’s FEMA-based designation, but Shaw did not review the flood survey or appraiser report.
- Public records, maps, and the lender-directed flood certification reportedly indicated flood-zone risk, which Shaw could have discovered with due diligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shaw can prove fraud/conspiracy given due diligence | Shaw contends due diligence could not reveal latent flood risks despite prior flooding. | Defendants argue due diligence would reveal flood-zone status from reasonably accessible public documents. | Yes; due diligence would have revealed flood zone; no fraud proven. |
| Whether BRRETA/special relationship lowered due diligence burden | Special relationship and BRRETA duties imposed on brokers to disclose known adverse facts. | Even with BRRETA, Shaw failed to act diligently to uncover flood-zone information from public records. | No; Shaw failed to exercise diligence; BRRETA did not create liability. |
Key Cases Cited
- Cendant Mobility Finance Corp. v. Asuamah, 285 Ga. 818 (2009) (elements of fraud; due diligence standard guiding summary judgment)
- Smalls v. Blueprint Dev., 230 Ga.App. 556 (1998) (passive concealment limited to information discoverable via due diligence)
- Klusack v. Ward, 234 Ga.App. 178 (1998) (elements of fraud; justifiable reliance required)
- Peacock v. Kiser, 272 Ga.App. 83 (2005) (BRRETA disclosure duties; due diligence requirement)