Matthew L. Smith appeals from the trial court’s grant of summary judgment to Hilltop Pools and Spas, Inc. “Hilltop”, arguing that the trial court erred by finding that Smith’s negligence and contract claims were barred by the statute of limitations and that Smith failed to produce any evidence of fraud or deceit and thereby rescission on the basis of fraud. For the reasons that follow, 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. OCGA § 9-11-56 c. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.1 So viewed, the record before us reveals that Smith entered into a contract with Hilltop in early February 5, 2001, for construction of an in-ground swimming pool. Hilltop contracted with Wayne Younger to excavate the area, and during excavation, Younger discovered garbage fill in the area, which would cost extra to remove. Smith agreed to the extra expense, and Smith surveyed the area with Younger, at which time Younger told Smith all the garbage had been removed. Smith recalled that Younger had re-buried the trash approximately 30 to 40 feet away from the pool site, and Smith did not recall seeing any trash in the original trash pit after Younger completed the excavation. A Hilltop representative swore that he did not knowingly represent any fraudulent information concerning removal of the garbage and did not make any representation to Smith that was false or intended to deceive Smith about garbage remaining in the pool site. Smith deposed that in August 2001, Hilltop had installed the liner for the pool, but the pool was unlevel, which was visually apparent from the tile pattern on the pool liner. Smith also deposed that the pool was usable at that time, but Hilltop agreed to return to the residence in February 2002, reassess the leveling situation, and change the liner at that time. Additionally, the parties agreed that Smith could withhold the final payment on the contract of approximately $1,300, and that Hilltop would begin changing the liner by February 28, 2002, would complete the work within 28 days, and would compensate Smith $150 per day for which the liner replacement was incomplete. It is undisputed that the liner replacement was never completed, although Smith met with a representative from Hilltop in May of 2002, and Smith never remitted the final payment of the contract to Hilltop. Despite the unlevel appearance of the water in the pool, Smith deposed that he utilized the pool for swimming during warm months of the year, beginning in August 2001, until one wall of the pool collapsed in September 2004.
Smith deposed that the pool was unusable after September 2004, but he did not file suit against Hilltop until October 8, 2007. Hilltop filed a motion for summary judgment, contending that the claims against Hilltop should be dismissed because the applicable statutes of limitation had expired and because Smith had failed to produce evidence of fraud by Hilltop. The trial court agreed with Hilltop and granted the motion. Smith now appeals.
