In 2004, Cheryl Wilhelm filed suit against Houston County and the Houston County Health Department and against the builders of her home, Neal Waller, Jeanette Francis, and Sussex Construction Company collectively “Sussex”, asserting claims for fraud and nuisance arising from a malfunctioning septic tank system. In four orders, the trial court granted each of the defendants’ motions for summary judgment. Wilhelm appeals from the orders, contending that the trial court erred in finding that her claims against Sussex and the health department were barred by the statute of repose codified in OCGA § 9-3-51; that she had failed to show that Sussex and the health department committed fraud; and that there was no evidence that the county had any control over the creation or maintenance of the alleged nuisance. For the following reasons, we affirm. In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment, the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Citations omitted. Benton v. Benton , 280 Ga. 468, 470 629 SE2d 204 2006. So viewed, the record shows the following undisputed, relevant facts. Wilhelm purchased a newly-constructed home from Sussex in November 1995; she did not hire an independent inspector to inspect the house before she purchased it. At the time of closing, Wilhelm received a printed plat of the property that had been filed with the county in July 1995, that showed the area surrounding her house was within a 100-year flood plain, and that included a note stating that the rear portion of the property was subject to holding water after periods of heavy rain. Shortly after Wilhelm moved into the house, she began having problems with her plumbing and septic tank system, including constantly clogged toilets and intermittent sewage backup into her home. She also noticed that the grass around her septic tank was brown and did not grow properly, that the lawn in that area was consistently wet and uneven, and that some of her trees were dying.
Over the next eight years, Wilhelm attempted to fix the problems by having her septic tank pumped out repeatedly and through various modes of self-help, including using a “snake” to unclog the sewage pipes and adding top soil to the uneven areas of her lawn. When she had a tree company employee remove some of her dying trees in 1996, the employee informed her that there was fill dirt in her yard that may have contributed to the loss of her trees. However, she did not contact Sussex or anyone else to determine why the fill dirt had been placed in her yard. In 2000, though, Wilhelm called Sussex about sewage backup in her master bathroom garden tub, and Sussex suggested that she contact the county and the man who installed the septic system. She had the septic tank pumped out after consulting with them, and the septic system worked properly for about two years. Wilhelm admitted that, although she repeatedly called Sussex about various, unrelated construction problems with her home, she never asked Sussex to change or repair the septic system prior to filing suit, nor did she hire an independent plumber or other professional to examine her plumbing and septic system in order to determine why she was having problems with it.
