We granted Scott Dasher’s application for interlocutory appeal of the trial court’s denial of his motion for summary judgment in a fraud suit brought against him by Brent and Rebecca Davis. The Davises, purchasers of a home from James Parker and Stephanie Shaffer f/k/a Stephanie Parker, alleged that Dasher, who was their real estate agent, fraudulently concealed a defect in the home’s septic system. Because we conclude that no evidence exists in the record from which a jury could conclude that Dasher actually knew of any such defect and failed to disclose it to the Davises, we reverse the trial court’s denial of Dasher’s motion for summary judgment. The evidence in the record, construed most favorably to the Davises, the non-movants, shows that Dasher listed Parker and Shaffer’s home for sale. In the initial disclosure statement, the sellers indicated that the septic system had been professionally serviced. The Davises requested additional information, and the sellers disclosed to the Davises’ real estate agent, Susan Silvers, that the septic system had been serviced in September 2002. In late December 2002, while the house was under contract but before the closing, Parker and Shaffer experienced a problem with the septic system. Shaffer notified Dasher that the septic tank needed to be pumped again. This time the septic tank was serviced by a different company. Dasher faxed a disclosure form to Silvers stating that he had spoken with Shaffer that morning, that Shaffer had informed him “about an issue with the septic tank system and it needs to be pumped.” Silvers received the fax, signed it, and returned it to Dasher.
After the sale closed and the Davises were living in the house, they telephoned Dasher and informed him that they were experiencing problems with the septic system. Rebecca Davis told Dasher that the system was “defective” and that it needed to be replaced. Dasher relayed this information to Shaffer, and Shaffer called a third company to inspect the system. When the inspection was performed, the technician told Shaffer only that the field lines were “full.”
