After Woodard purchased a house, she discovered structural damage in the attic caused by a fire which occurred prior to the purchase. She sued the seller and the real estate agents for the seller, Ben Farmer Realty Company and Rubin, claiming they fraudulently induced her to enter into the sales contract by concealing the fire damage. Ben Farmer Realty and Rubin moved for summary judgment, and the trial court granted the motion in part and denied it in part. Case No. A93A2588 is the interlocutory appeal granted by this court to Ben Farmer Realty and Rubin from the partial denial of summary judgment. Case No. A93A2589 is the cross-appeal of Woodard from the partial grant of summary judgment.
A purchaser claiming to have been fraudulently induced into entering a sales contract has an election of remedies involving rescission or affirmation of the contract.
Tuttle v. Stovall,
In its order on the defendants’ motion for summary judgment, the trial court granted summary judgment in favor of all defendants on Woodard’s tort claim for fraud on the basis that Woodard sought to rescind the contract and sue in tort, but failed to restore or offer to restore the contract benefits as required in a tort action based on rescission. The trial court also ruled that summary judgment was denied as to breach of contract claims brought by Woodard against Ben Farmer Realty and Rubin, finding questions of fact raised by the terms of the contract.
The complaint and remaining record in the case clearly show that Woodard sought to affirm the contract, and sued for damages resulting from the alleged fraud. There is nothing in the record indicating any effort by Woodard to rescind the sale. Her suit was one in tort for the amount of the structural fire damage to the house (essentially seeking the difference between the actual value of the house as sold and its value as she claims it was represented), plus punitive damages and attorney fees. Woodard correctly argues in her cross-appeal that a failure to offer to restore benefits was not a proper basis for dismissal of her tort claim. Ben Farmer Realty and Rubin also correctly contend that there was no breach of contract claim upon which to find an issue of fact.
The issue in this case is whether Ben Farmer Realty and Rubin were entitled to summary judgment on Woodard’s tort claim based on affirmation of the sales contract, and a suit for damages claiming she was fraudulently induced to enter into the sales contract. “As was pointed out by this court in
Wilhite v. Mays,
Woodard makes varying statements in support of her fraud claim. In her deposition, she claims that someone knew about the fire damage and did not tell her. In an affidavit in opposition to summary judgment, she states that she relied upon representations that the house was structurally sound and in good repair. She apparently also claims that certain language in the sales contract was deliberately designed to mislead her.
First, we deal with the claim of passive concealment. “In cases of passive concealment by the seller [or agent] of defective realty, the buyer must prove that the vendor’s concealment of the defect was an act of fraud and deceit, including evidence that the defect could not have been discovered by the buyer by the exercise of due diligence and that the seller [or agent] was aware of the problems and did not disclose them.” (Citations and punctuation omitted.)
U-Haul Co. &c. v. Dillard Paper Co.,
In her deposition, Woodard testified that she did not claim *77 Rubin, who was a Ben Farmer Realty agent, knew about the fire damage, but claimed that “somebody knew and didn’t tell me about the fire.” Rubin and Ben Farmer Realty both stated that they had no knowledge of the fire damage. The seller testified that the house had been obtained by mortgage foreclosure from Shear, who mortgaged the house in an effort to do repairs. The seller was aware that there had been a fire at the house prior to Shear’s ownership, but testified he believed Shear had repaired the damage, and that he had no knowledge of the fire damage when he sold the house. When asked if it was conceivable that he told Rubin about the prior fire, he testified that though conceivable, he could not recall doing so.
On the present record there is no evidence that Rubin or Ben Farmer Realty knew about the fire damage, and it appears that Woodard conceded this fact in her deposition. Even if a question of fact existed as to whether the agents or the seller knew of the fire damage, under the circumstances, Woodard failed as a matter of law to exercise due diligence to discover the fire damage in the attic. Woodard knew the house was in a dilapidated condition with many major defects, and she agreed to purchase the house in its “as is” condition. She was obviously on notice to exercise a heightened degree of diligence in inspecting the house under these circumstances. When she inspected the house, she knew there was an accessible attic, knew she could have inspected the attic, and failed to do so. When she later discovered the fire damage in the attic, she testified the damage could be seen from the floor of the house through the access hole with the use of a flashlight. U-Haul Co., supra at 282; compare Mulkey, supra at 166; Fincher, supra at 259. Ben Farmer Realty and Rubin were entitled to summary judgment with respect to any claim for passive concealment.
Woodard also claims in an affidavit in opposition to summary judgment that she relied upon “the representation that the property was in reasonably sound structural condition and in a state of good repair. ...” She does not say who made these representations. In any event, having elected to affirm rather than rescind the sales contract, Woodard is bound by its terms. In addition to containing an entire agreement clause, the contract specifically provides: “[Purchaser acknowledges that [she] has not relied upon the advice or representations, if any, by Broker (or agents of Broker) relating to . . . the structural condition of the property. ...” Accordingly, Woodard is estopped from pursuing this claim for fraud, and the appellants were entitled to summary judgment.
Weaver,
supra at 615;
Joseph Charles Parrish, Inc. v. Hill,
We find no merit in Woodard’s claim that the language of the *78 sales contract, drafted by her own agent, providing that “the property is being sold ‘as is’ and no termite certificate will be issued,” was fraudulently designed to represent that possible termite damage was the only defect in the property.
Although for the wrong reason, the trial court correctly granted summary judgment in favor of Ben Farmer Realty and Rubin with respect to all tort claims brought by Woodard. A grant of summary judgment must be affirmed if it is right for any reason.
Newsome v. Dept. of Human Resources,
Judgment affirmed in part in Case No. A93A2589, and reversed
in part in Case No. A93A2588.