Ronald and Theresa Walker purchased real property from Frances King in July 2000, and later discovered that the property had severe drainage problems and was subject to flooding. The Walkers sued King, Keith Johnson the developer, Michael Jenkins the builder, Heidt Real Estate Services, Inc. d/b/a Century 21 Heidt Realty the seller’s broker and Nadine Seckinger the listing agent, asserting various theories of liability. The trial court granted motions for summary judgment filed by Johnson, Jenkins, Century 21 and Seckinger. The Walkers appeal the award of summary judgment to Johnson on their nuisance claim and the award of summary judgment to Century 21 and Seckinger on their claims for fraud and negligent misrepresentation. We conclude that Johnson was not entitled to summary judgment and reverse that portion of the judgment. We conclude that the trial court properly granted summary judgment to Century 21 and Seckinger, albeit for different reasons,1 and affirm that portion of the judgment. Johnson was the sole developer of a subdivision known as Oakwood Estates. When he purchased the property, it was raw land. After the property was rezoned, Johnson hired an engineering firm to design a layout for the subdivision. Preliminary drawings were submitted to the City of Springfield for approval, and then construction of the subdivision began. Johnson testified that he did not know exactly how the drainage for the subdivision was supposed to work because he is not an engineer. He hired a company to install the water, sewer and storm drain and another company to install the curbs and gutters. Johnson assisted in coordinating the installation process and was at the construction site every day. Johnson’s company cleared the right of way for the subdivision, but did not do any grading work. Johnson considered the subdivision completed in March 1996, when the lots were subdivided and ready for sale. Very few of the lots had been cleared at that time. In April 1996, the subdivision plat was approved by the City of Springfield and the engineer hired by Johnson certified that the streets, drainage system, sewer system and water system in the subdivision had been installed in accordance with the approved construction drawings.
In October 1997, Johnson sold several lots, including Lot 7, the lot the Walkers ultimately purchased, to Jenkins and two other men. Johnson testified that he may have been involved in clearing the land before houses were built, but he did not do any grading. Johnson was not involved in building any houses.
