Frank R. Hudson filed a fraud action against Bernard and Elaine Pollock, alleging that they concealed the condition of the septic tank in the house they sold to Hudson. The Pollocks filed a motion for summary judgment, which the trial court granted. It is from this order that Hudson appeals. Because genuine issues of fact remain for a jury’s determination, we reverse. When ruling on a motion for summary judgment, the trial court should give the party opposing the motion the benefit of all reasonable doubt and should construe the evidence and all inferences and conclusions therefrom most favorably toward that party. When appellate courts review the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and the evidence.1 So construed, the evidence shows that on February 15, 2001, Hudson entered a real estate purchase and sale agreement with the Pollocks to purchase their home. In conjunction therewith, the Pollocks executed a Seller’s Property Disclosure Statement, which was incorporated into the sales contract. The Pollocks checked the “yes” box on the disclosure statement, indicating that the septic tank had been professionally serviced and provided the date of last service as September 21, 1999. Also on the form, the Pollocks indicated that they were not aware of any past or present leaks, backups, or other similar problems relating to any of the plumbing, water and/or sewage-related items. Hudson signed and acknowledged receipt of the disclosure statement on February 16, 2001. Hudson deposed that he had the home inspected and that his inspector reported no problems with the plumbing system in the house. Regarding the septic system, the inspector wrote in his inspection report, “Septic systems should be cleaned every 4-7 years this system has very well drained field lines.” Hudson also talked to Bernard Pollock about the septic system. Hudson deposed that Pollock told him that the system had been serviced and was in perfect working condition and explained that a stand pipe had been installed as an extra safety device to prevent spillage into the basement of the house in the event there was ever a sewage backup. Though Hudson thought the stand pipe was “rather unusual,” he believed Pollock’s explanation and actually thought the stand pipe was a “pretty clever idea.” Furthermore, Hudson knew that Pollock was a professional builder and was comfortable that Pollock was very good at his trade. Consequently, Hudson saw no need to have the septic tank inspected or demand that any repairs be made to it. The closing occurred on March 26, 2001. Hudson deposed that 18 days later, the septic system failed.
Hudson contacted Seagraves Plumbing “Seagraves” about the problem and learned that it had actually repaired the system in 1999, as opposed to simply servicing it as the Pollocks had indicated on the disclosure statement. Hudson deposed that he learned from Seagraves that during the repair, a bulldozer was utilized and several pipes were replaced; that Seagraves told Pollock that the system was impaired and was going to fail; and that Pollock did not want to replace the system and asked them to patch it.
