dissenting:
I respectfully dissent. In my opinion, the sales contract Buyers signed included a binding non-reliance clause. Therefore, I would reverse the court of appeals and uphold the trial court’s dismissal of Buyers’ fraud and misrepresentation claims. The parties’ sales contract provides in part:
*62021. ENTIRE AGREEMENT. This written instrument expresses the entire agreement, and all promises, covenants, and warranties between the Buyer and Seller. It can only be changed by a subsequent written instrument (Addendum) signed by both parties. Both Buyer and Seller hereby acknowledge that they have not received or relied upon any statements or representations by either Broker or their agents which are not expressly stipulated herein.
(Emphasis added). In the majority’s view the above language solely constitutes a merger clause and not a non-reliance clause. The majority further contends that the merger clause cannot prevent Buyers from proceeding on tort theories of negligent misrepresentation and fraud citing Gilliland v. Elmwood Properties, 301 S.C. 295, 391 S.E.2d 577 (1990). In my opinion, the above bolded language constitutes a valid non-reliance clause.
According to the majority, the language would constitute a binding non-reliance clause only if it were included in another section of the sales contract. In my opinion, however, the majority’s view renders this language entirely useless and disregards the parties’ original intention as indicated by the plain meaning of the contract’s language. Therefore, in my opinion, the majority has misconstrued the language of the contract.
The court of appeals has provided that a non-reliance clause would contain the words “rely” or “reliance” and set forth a statement that the parties could not rely upon the statements of the other party or a third person. Redwend Ltd. Partnership v. Edwards, 354 S.C. 459, 469-470, 581 S.E.2d 496, 501-502 (Ct.App.2003). In my opinion, the court of appeals’ explanation of non-reliance clauses in Redwend is a concise description of the above emphasized language.
Accordingly, in my opinion, the trial court correctly dismissed Buyers’ counterclaims for fraud and negligent misrepresentation. Buyers, as proponents of the counterclaims, had the burden to provide at least some evidence that a genuine issue of material fact existed as to each element of fraud and *621negligent misrepresentation.5 Both causes of action require Buyers to show that they relied upon the statements of Sellers’ agent.6 However, Buyers effectively waived the right to argue reliance when they signed the sales contract. Therefore, as a matter of law, Buyers cannot satisfy each element of fraud and negligent misrepresentation.
Accordingly, I would reverse the court of appeals and uphold the trial court’s order dismissing Buyers’ counterclaims for fraud and negligent misrepresentation.
. See Cole v. South Carolina Electric and Gas, Inc., 355 S.C. 183, 194, 584 S.E.2d 405, 411 (Ct.App.2003) (plaintiff has the burden to prove each element of the cause of action).
. See Lundy v. Palmetto State Life Ins. Co., 256 S.C. 506, 510, 183 S.E.2d 335, 337 (1971) (to establish a successful claim for fraud, plaintiff has the burden of proving reliance); Sauner v. Pub. Serv. Auth. of South Carolina, 354 S.C. 397, 581 S.E.2d 161, 166 (2003) (to establish a successful claim for negligent misrepresentation, plaintiff has the burden of proving reliance).