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Smiley v. S & J Inves.3/21/2003
* PLEASE NOTE: OPINION DATED 2/7/03 IS VACATED. THIS IS THE SUBSTITUTE OPINION.
Ronald C. Smiley and Terri H. Smiley appeal from the grant of summary judgment in their suit for fraud, breach of contract, professional negligence, and negligent misrepresentation against S & J Investments, Inc., Jack E. Hall, Jr., and Hussey, Gay, Bell & DeYoung, Inc., Consulting Engineers ("HGB&D;) in the purchase of their home.
On July 27, 1998, the plaintiffs entered into a real estate purchase and sales contract with S & J, and on the next day Hall, as the principal agent, delivered to them a Seller's Property Disclosure Statement for 13 Wylly Island, which the plaintiffs contend was fraudulent. Plaintiffs contend that the statement contained in standard form the following questions and responses which were intentionally false: "Are you aware of any past or present sliding, settling, earth movement, upheaval, or earth stability/expansive soil problems? No"; "Are you aware of any past or present drainage or flooding problems? No"; "Structural items. Are you aware of any past or present movement, shifting, cracking, deterioration, or other structural problems with floors, walls, or foundation? No"; "Are you aware of any past or present problems with driveways, walkways, patios, or retaining walls on the property? No"; "Water leakage or drainage? No."
Prior to the purchase contract being executed, the plaintiffs, in the exercise of reasonable diligence, had Mark Shaw, a former building contractor, inspect the premises; Shaw expressed concern over the condition of the house. Because of plaintiffs' concern over Shaw's findings and to induce the sale, S & J had HGB&D;make an engineering inspection and prepare a report to give to the plaintiffs and to allay the plaintiffs' concern prior to closing. Plaintiffs relied on the professional reputation of HGB&D;and on the fact that HGB&D;had made a visual inspection and had "found no signs of structural failures." Initially, the plaintiffs offered $600,000 for the house because they were concerned that it had structural defects, requiring repair; however, the plaintiffs, in reliance upon the representations of Hall and S &J;and the inspection by HGB&D;purchased the house for $670,000, and later found that the house had numerous defects of which they had been unaware at closing.
Plaintiffs attached to an amended complaint the affidavit of their expert witness, David C. Sladek, P.E., who on inspection of the house after sale found a number of structural failures that in the exercise of reasonable engineering care should have been found on a visual inspection by HGB&D; i.e., piers were not aligned and were twisted with the bearing beams; some beams were inadequate for loading; the garage header was deflecting; hurricane clips were absent from the rafters; some rafters lacked support; and the gazebo was not properly braced, supported, and tied down. The special damages were required repairs: re-stucco entire house; addition of several foundation piers; remove and replace ceiling beams, re-sheetrock, and re-paint the great room; replace crown molding in great room with larger molding; replace crow molding in other areas of the house with larger molding; re-tile the foyer; strip and refinish all hardwood floors; tile laundry room floor; add back splash in kitchen; add steps on pool deck to dock; fix the gazebo; and landscape.
After acquiring the property in 1996, Hall had the floors redone as wood floors throughout the living area by removing the ceramic tile and by replacing the subflooring; because of irregularities shown to him by the flooring people, Hall had sleepers added to floor joist
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