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Fann v. Mills

Because the real estate contract required the seller to supply a wood infestation report, the contract's merger clause did not bar the buyer's claims based on the alleged concealment of an unfavorable termite report.

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After Dominique Mills purchased a house, she learned that it had termite damage and was prone to flooding. Mills then sued the following for fraud and negligent misrepresentation:1 Barbara Barker-the buyer’s agent; Margaret Ann Griffin-the seller’s agent; Wayne Fann-the broker for both agents; Wayne Fann, Inc. d/b/a Coldwell Banker-Wayne Fann Real Estate; and Kevin Willis—a workman who did repair work on the house prior to Mills’ purchase.2 The defendants moved for summary judgment, and the trial court denied their motions. In Case Number A00A2434, Fann, Griffin, and Wayne Fann, Inc. appeal, and in Case Number A00A2435, Barker and Willis appeal. As both cases involve the same operative facts, we have consolidated them on appeal. For reasons that follow, we affirm in part and reverse in part.

On motion for summary judgment, the movant must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in favor of the nonmovant, warrant judgment as a matter of law.3 So viewed, the record establishes that Marguerite Shenton decided to sell her home. In August 1994, she contacted her friend, Margaret Griffin, who was a real estate agent with Wayne Fann, Inc., to list the house for sale. On August 15, 1994, Shenton completed a seller’s disclosure form in which she noted that, in the past, the property had “drainage or flood problems” and that the city had installed a drain pipe and culvert to address the problem.

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