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Rosenberg v. Falling Water Inc.

The 8-year statute of reposed barred the plaintiff's claims for injuries which occurred three years after the expiration of the repose period.

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In this negligent construction and fraud case arising from the collapse of a deck, Richard Rosenberg appeals from the trial court’s grant of summary judgment to Falling Water, Inc., the successor in interest to the company which constructed Rosenberg’s home “the builder”. Rosenberg contends that the court erred in granting summary judgment to the builder, arguing that there was sufficient evidence to support a finding that the builder had committed fraud and that the builder’s fraud should have estopped it from asserting the applicable statute of repose, OCGA § 9-3-51, as a defense. Finding no error, we affirm. “Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” Citations and punctuation omitted. White v. Ga. Power Co. , 265 Ga. App. 664, 664-665 595 SE2d 353 2004. So viewed, the record shows the following undisputed facts.

On May 5, 1994, the builder obtained a permit from the City of Kennesaw to begin construction of a house at 1423 Shiloh Way. The city issued a certificate of occupancy for the property on July 12, 1994. On July 14, 1994, the builder transferred title to the property to Susan and William Nowicki. The Nowickis subsequently sold the property to Axel and Charlotte Bayala. On March 28, 2002, almost eight years after the city issued a certificate of occupancy for the property and the builder transferred title to the property, the Bayalas sold the house to Rosenberg.

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