Asuamah v. Cendant Mobility Financial Corp.

690 S.E.2d 861 (2010)

ASUAMAH v. CENDANT MOBILITY FINANCIAL CORPORATION.

No. A08A0210.

Court of Appeals of Georgia.

January 7, 2010.

Leon A. Van Gelderen, for Appellant.

Scott Harold Michalove, David Lawrence Rusnak, Atlanta, for Appellee.

MIKELL, Judge.

In Cendant Mobility Financial Corp. v. Asuamah,[1] the Supreme Court reversed Division 4(b) of our decision in Asuamah v. Haley,[2] in which we held that the trial court *862 erred in granting summary judgment to Cendant, the non-builder/seller, on the plaintiff/purchaser's claim of negligent repairs.[3] In reversing, the Supreme Court concluded that

the "negligent construction" exception to caveat emptor exempts from the defense of caveat emptor only a negligence claim by a homeowner seeking recovery against the builder/seller of the home for latent building construction defects about which the purchaser/homeowner did not know and in the exercise of ordinary care would not have discovered, which defects either were known to the builder/seller or in the exercise of ordinary care would have been discovered by the builder/seller. Inasmuch as Cendant is not a builder/seller of the dwelling purchased by Asuamah, the trial court did not err when it granted summary judgment to Cendant.[4]

Accordingly, we vacate Division 4(b) of our opinion, adopt the judgment of the Supreme Court as our own, and affirm the judgment of the trial court. Divisions 1 through 4(a) and Division 5 of our opinion were not affected by the Supreme Court's decision and thus remain in effect.[5]

Judgment affirmed.

SMITH, P.J., and ADAMS, J., concur.

NOTES

[1] 285 Ga. 818, 684 S.E.2d 617 (2009).

[2] 293 Ga.App. 112, 666 S.E.2d 426 (2008).

[3] Id. at 124-126(4)(b), 666 S.E.2d 426.

[4] (Citation omitted.) Id. at 822, 684 S.E.2d 617.

[5] See Shadix v. Carroll County, 274 Ga. 560, 563-564(1), 554 S.E.2d 465 (2001).