dissenting.
11 Although the majority opinion recognized that the report of the civil engineer, dated October 26, 2000, recommended additional work because the house was on fill material which had settled about one inch, the opinion did not consider the engineer’s recommendation in finding that a sufficient disclosure was provided. Nine days before the report the buyers submitted a written offer, and two days after the report the sellers agreed to the offer. The buyers then signed the property condition disclosure statement as originally written, i.e., foundation “unknown.” On October 30, 2000, five days after the engineer’s report the sale was closed. There is nothing in this record to show that the additional work was done.
The alleged verbal disclosure between the real estate agents was that the “crack” was fixed, meaning the crack as stated in the July 2000 disclosure statement. According to the deposition of the seller’s realtor, Shirley Davis, no particulars of what was done or what was left to be done was disclosed — just that it (crack) was fixed.
Eight months after the closing, Interstate Foundation came back out and found that the house had settled and was in the same condition as when Interstate first inspected the house for the builder in August of 2000. Obviously, the additional work had not been completed.
The substantial work that had been done and still needed to be done should have been clearly disclosed. There are material fact questions, and summary judgment was not appropriate.