Ben Wofford and Patricia Wofford v. Evelynn Goslee and Plumlee & Associates, Inc.

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

BEN WOFFORD and PATRICIA

WOFFORD

APPELLANTS

V.

EVELYNN GOSLEE and PLUMLEE & ASSOCIATES, INC.

APPELLEES

CA 01-450

November 28, 2001

APPEAL FROM THE GARLAND

COUNTY CIRCUIT COURT

[CIV99-595]

HONORABLE JOHN HOMER

WRIGHT, CIRCUIT JUDGE

AFFIRMED

Appellants, Ben and Patricia Wofford, purchased a lakeside home in Hot Springs in May 1996. The house had been owned and occupied by Larry and Colleen Wallace, but due to financial difficulties experienced by the Wallaces, their friends, the Frank Fletchers, had purchased the house and paid off the mortgage in order to avoid a foreclosure action. Therefore, the Fletchers were the "record owners," but Colleen Wallace was the person familiar with the house. Appellee Evelynn Goslee, now deceased, was the listing agent for the property, representing the sellers. The real estate company through which Ms. Goslee worked was Prudential Lakefront Realty, owned by appellee Plumlee & Associates, Inc. In 1998, approximately two years after purchasing the property, appellants discovered "puddling" in their yard. Further investigation revealed that a portion of the house was still connected to a septic tank. Appellants suffered approximately $24,000 in damages. They

filed their complaint on September 10, 1999, based upon a theory of fraudulent misrepresentation. Appellees filed a motion for summary judgment, which was granted by the trial court. In granting the motion, the trial court assumed for purposes of the motion that appellee "Goslee was apprised of the presence of an inactive septic tank and failed to advise the [appellants] of that fact." For their sole point of appeal, appellants contend that "genuine issues of material fact were present before the lower court and summary judgment was improper." We disagree and affirm.

Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Plant v. Wilbur, 345 Ark. 487, 47 S.W.3d 889 (2001). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave an issue of material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Id. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Id.

In his first deposition, taken June 20, 2000, appellant Ben Wofford testified that he and his wife looked at the property approximately three times, twice regarding the house and once regarding the boat dock. He stated that prior to closing, he had a conversation with Goslee about the condition of the property; he recalled no conversation with her about whether or not the property was hooked up to city sewer or whether there was a septic tank sitting on the property, but that according to the listing sheet, it was on city sewage. He stated that the only information they received concerning the sewer system prior to buying the house was that which appeared in the multi-listing service information, which provided, "Electric, natural gas, city water, sewer, phone, and cable TV." He said that he had no information that anyone associated with Prudential Lakefront knew that part of the house was hooked up to a septic tank. He acknowledged that he read the real estate contract and that it contained a "BUYER'S DISCLAIMER OF RELIANCE." He also stated that he and his wife hired an inspector to look at the property.

Appellant Ben Wofford further acknowledged that the appraisal prepared in connection with the sale reported that the property had city sewer. He also reviewed a survey that had been prepared for him in 1996, which showed two grinder pumps on the property, the existence of which indicates that a house is hooked to city sewer. Another exhibit reviewed by appellant during the deposition was a city permit to connect the property to the Hot Springs sewer system, which was dated August 30, 1984. He stated that he received bills for sewer charges while he lived in the house.

Wofford stated that he did not know of anyone who took any steps to try to keep him and his wife from finding out about the existence of the septic tank. He also stated that "the only statement made by the defendants in this case that we are relying upon in this lawsuit is the one from the multi-listing service statement."

In his second deposition, appellant Ben Wofford testified that the septic tank that they discovered after the problem arose was underneath their deck. He said that if they had known of its existence, active or inactive, they would have investigated further prior to purchase, and they would have required that it be filled. Appellant Patricia Wofford's deposition is substantially the same as that of her husband.

Appellee Evelynn Goslee testified in her deposition that she was the listing agent, representing the sellers, in the sale of this property. She stated that Colleen Wallace completed the information sheet, which stated that the house had city sewer. Goslee said that she was provided with a 1991 appraisal by Tom Ferstl that reported the house was on city sewer, and with a 1986 survey that showed a grinder pump on the premises adjacent to the house. She also knew from experience that houses in that area were required to be on city sewer since the 1980s. She also confirmed that a 1996 appraisal, which was prepared in connection with this sale, also shows the house having public sanitary sewer. She stated that she had no information that only part of the house was connected to city sewer, and that she had no reason to suspect that part of the house was connected to a septic tank. When she completed the information for the multi-listing service, she believed the house wasconnected to city sewer because of what she had been told by the owner, the 1991 appraisal, and the 1986 survey.

Colleen Wallace was deposed on October 16, 2000. She testified that she and her former husband purchased the property in the late 70s or early 80s as a second home. She stated that there was and that she assumed there still is a septic tank on the property. She stated that in filling out the information sheet she placed an "x" by "no" regarding whether there were "any known defects in the ... sewer or septic systems ...." She said that was accurate to the best of her knowledge; that she knew there was a septic tank in the ground, but that she did not think it was an operative tank. She said that she was sure she had disclosed her knowledge to Goslee or others connected to Plumlee & Associates. She stated that she did not specifically remember doing so, but would assume that she did. She was "pretty sure" she told Goslee that they had added on to the property because a storage room and bathroom were constructed after she and her ex-husband purchased the property. She stated that she thought the "round thing off the deck in back" was an inactive septic tank; that she did not know it was actually a sewer pump; and that when they sold the house, she thought the whole house was hooked up to the city sewer system.

In an action for fraudulent misrepresentation and deceit, the plaintiff must show triable issues of fact with respect to each of the following elements: 1) a false representation of fact; 2) knowledge that the representation is false, or knowledge that there is insufficient evidence upon which to make the representation; 3) intent to induce action or inaction on reliance upon the representation; 4) justifiable reliance upon the representation; and 5)damage suffered as a result. Rosser v. Columbia Mut. Ins. Co., 55 Ark. App. 77, 928 S.W.2d 813 (1996).

Here, appellants are clear with respect to the representation upon which they are relying in asserting their cause of action: "The communication that forms the basis for the Wofford complaint against Goslee and Plumlee is the multi-listing service statement clearly indicating that the home was serviced by a sewer utility." The multi-listing service information contained the following statement about the property: "Util>ELEC, NAT GAS, CITY WTR, SEWER, PHONE, CABLE TV." Moreover, appellants are equally clear regarding what their cause of action does not assert: "The Woffords' cause of action is not for failure to disclose. It is for representations based upon insufficient information given what Ms. Wallace told [Goslee] as to the existence of the septic tank."

For purposes of deciding the motion, the trial court assumed that Goslee knew of the septic tank's existence and nevertheless concluded that the motion should be granted. We find no error in that conclusion because the existence of that fact does not alter the result. Appellants have presented no evidence to demonstrate that Goslee's presumed knowledge of the existence of the septic tank makes the information in the multi-service listing statement fraudulent with respect to whether the house was connected to city sewer and water. It is undisputed that at the time the multi-service listing statement was prepared, everyone involved in the transaction thought that the entire house was connected to city sewer and water, and appellants have specifically stated that they are not relying upon a failure-to-disclose theory of recovery. Viewing the evidence in a light most favorable toappellants, we hold that reasonable men could not reach different conclusions from the undisputed facts presented here.

Affirmed.

Pittman and Griffen, JJ., agree.