Kamran Lehman and Chunyan Lehman “buyers” purchased a home in Augusta from Jeff Keller, III, a licensed real estate agent, in 2004. In 2007, the buyers sued Keller, claiming that he fraudulently concealed termite damage and breached the parties’ contract. Keller moved for summary judgment. The trial court granted the motion, and the buyers appeal. We affirm. To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 c. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.1 Our review of the grant of summary judgment is de novo.2 Properly viewed, the record shows that Keller had purchased the house from the Department of Housing and Urban Development in February 2004 as investment property. He marketed the property for sale and secured a potential buyer. An inspection performed by Gerald Hargrove for that buyer on June 18, 2004, revealed rotted wooden fascia, siding, flooring, and subflooring. Wood infestation inspection reports performed by Bobby Durham3 on June 8 and August 17, 2004, both revealed previous infestation. The June 8 report showed visible damage. The potential buyer declined to complete the purchase.
The buyers in the case at bar entered into a Purchase and Sale Agreement “Agreement” with Keller on December 11, 2004, to purchase the property for $70,400. Pursuant to the inspection clause in the Agreement, the buyers had ten days from the date of signing to submit an inspection report and an amendment setting forth defects in the property. The clause states that if the buyers fail to do so, then they accept the property “as is . . . with all faults including but not limited to . . . damage from termites and other wood destroying organisms.” It is undisputed that the buyers did not conduct an inspection prior to closing. In addition, the seller’s property disclosure statement “SPD”, which was incorporated into the Agreement, disclosed that Keller had knowledge of termite damage under the house that had been repaired. Keller also disclosed that the property had been inspected during the previous year and that the house had been built in 1949. Kamran Lehman deposed that he was not aware of any action Keller took to prevent the buyers or their agent from inspecting the property; and that Lehman was aware that the house had been inspected previously, but his agent “explained that away.”
