Nine v. Henderson

Goolsby, Judge:

This is an action for breach of warranty and for fraud arising out of the sale of a house found to have termites. Roger Nine, the buyer, appeals the trial court’s grant of summary judgment to Rodger A. Henderson, the seller. The dispositive question on appeal, which relates only to his fraud claim,1 concerns whether Nine had a right to rely on Henderson’s representation regarding the extent of termite infestation on the property. We affirm.

Henderson and Nine, a Wackenhut security inspector, executed a contract of sale on August 3, 1987. Nine’s own attor*311ney had prepared the contract. The contract required Nine to purchase property owned by Henderson. The property included a house, a cottage, and a garage.

One provision of the contract noted Nine “is buying [the] subject property in ‘as is’ condition, and [Henderson] make[s] no warranty or representation as to the condition of the premises.” Another provision incorporated “an existing termite report known to and acknowledged by the parties” and required Henderson to pay Nine $200 for labor and materials expended by Nine in repairing termite damage to the house.

The parties closed four days later, on August 7,1987.

During the negotiations that led to the execution of the contract of sale, Henderson disclosed to Nine that a termite inspection done the previous May revealed the presence of termites in the eaves of the house and in the window sills and doors of the garage. Henderson, however, did not tell Nine about the three graphs made by the termite inspector. These graphs show additional termite infestation and damage.

For a two-week period prior to closing, Nine rented and occupied the house. He personally repaired the termite-damaged eaves on the side of the house and repaired some additional damage that he discovered along the front of the house.

At the closing, which Nine attended accompanied by his attorney, Henderson furnished Nine with three wood-infestation reports. These reports were made the day after the parties signed the contract of sale by the same termite inspector who made the May inspection. They separately detailed inspections that the termite inspector made of the three improvements located on the subject property. They also set forth the inspector’s conclusions regarding the presence of termites and other wood-destroying insects in each of the buildings.

The report relating to the house expressly noted there had been a previous infestation of termites and there was evidence of prior termite treatment. Visible evidence of the prior infestation, the report warned, could be found “to the eaves above the front porch slab.” The report cautioned “[tjhere is possible hidden old termite damage to the inside walls.” A graph attached to the report concerning the house advised of “subterranean termites,” “probable hidden damage,” and “possible hidden termite damage in walls.”

The report relating to the cottage also cautioned “[t]here is *312possible hidden termite damage behind the kitchen cabinets from previous infestation and along [the] baseboard by window.” A graph attached to this report advised of “subterranean termites,” “probable hidden damage,” and “probable hidden old termite damage behind [the] kitchen cabinets and baseboard.”

All three reports counseled Nine:

If there is evidence of active or past infestation of termites ..., it must be assumed that there is some damage to the building caused by this infestation.
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Any visible damage to a wood member in accessible areas has been reported... . [Y]ou may wish to call a qualified ... expert in the building trade to ascertain their [sic] opinion as to whether there is structural damage to this property.

Despite receiving these reports and having an opportunity to read them, Nine nevertheless elected to close. He later discovered termites, as we read his testimony, behind the walls in the kitchen of the house.

This action followed.

In granting Henderson summary judgment on Nine’s cause of action for fraud, the trial court pointed to the language in the wood infestation reports furnished Nine at the closing, particularly the language advising Nine of prior termite infestation and recommending Nine retain a qualified expert to determine whether the buildings had structural damage.

We agree with Nine that the question of whether reliance is justified in a given situation requires an evaluation of the circumstances involved, including the positions and relations of the parties. Elders v. Parker, 286 S.C. 228, 332 S.E. (2d) 563 (Ct. App. 1985). We also agree, however, with the trial court that Nine, under the circumstances here, had no reasonable right to rely on Henderson’s representations regarding the extent of termite damage to the building in question. See Bostick v. Orkin Exterminating Co., Inc., 806 F. (2d) 504, 508-09 (4th Cir. 1986) (construing South Carolina law and holding a purchaser of a home infested by powder *313post beetles had no right to rely on favorable answers on a wood-infestation report given the purchaser at the closing where the purchaser elected to close and failed to comply with a recommendation in the report and a South Carolina regulation that he investigate for structural damage).

Nine knew from the very start the property had termite problems. He himself discovered additional damage. By choosing not to postpone the closing and electing instead to proceed with it, he ignored, if not outright rejected, advice to have a qualified person ascertain whether the improvements on the property had sustained structural damage because of termites. Such an inspection could have revealed the additional termite damage. In short, Nine’s own actions placed him in the predicament in which he now finds himself. Cf. Watts v. Monarch Builders, Inc., 272 S.C. 517, 519, 252 S.E. (2d) 889, 891 (1979) (wherein the supreme court affirmed the grant of summary judgment in a fraud case involving the sale of real property, noting that it was not a case of fraudulent misrepresentation but was “a ease where two purchasers chose to shut their eyes”); Aaron v. Hampton Motors, Inc., 240 S.C. 26, 124 S.E. (2d) 585 (1962) (one cannot claim he was deceived by a seller’s misrepresentation if he has failed to avail himself of information easily within his reach because he has, in fact, contributed to the perpetration of the fraud).

Affirmed.

Howell, C.J., concurs. Cureton, J., dissents in a separate opinion.

The trial judge granted Henderson summary judgment on Nine’s breach of warranty cause of action, holding “Henderson did not warrant to [Nine] the condition of the [subject] premises, neither expressly nor impliedly.” Nine does not appeal this holding.