Legal Document: SMALLS vs WEDO HOMES INC

On November 02, 2021 a SMJ (Smalls) was filed involving a dispute between Smalls, Jermaine, and Wedo Homes Inc, for Contract/Account* in the District Court of Gwinnett County.

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IN THE SUPERIOR COURT OF GWINNETT COUNTY
STATE OF GEORGIA

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT (ON
LIABILITY ONLY)

COMES NOW, Plaintiff Jermaine Smalls (“Plaintiff”), respectfully submits

this Motion for Summary Judgment (on Liability Only) pursuant to O.C.G.A. § 9-

11-56. Plaintiff requests that the Court grant its motion on the grounds that there are

no genuine issues of material fact as to the matters presented, and that Plaintiff is

entitled to judgment as a matter of law.

I. INTRODUCTION

This matter concerns a straightforward breach of real estate contract

complaint..

Namely, in the context of a real estate purchase transaction, Defendant Wedo

Homes, Inc. (hereinafter, “Defendant”) made written, contractual misrepresentations

concerning: 1) whether the real property for sale was connected to public sewage;

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and 2) whether the real property for sale was served by a septic tank. However,

because there was a septic tank on the real property (and because that septic tank has

caused Plaintiff damages), Plaintiff seeks damages here.

There are no disputes as to whether the parties executed the agreements at

hand. Nor is there any dispute that the real property is served by a septic tank (and

not by public sewage). Accordingly, clear and binding precedent establishes that

Defendant is liable here. See, Smiley v. S&J Investments, Inc., 260 Ga. App. 493

(2003) (holding, real estate “purchasers can sue seller . . .for resulting damages under

the contract where such misrepresentation become part of the contract and are relief

upon by the purchases.”); see also, Hudson v. Pollock, 267 Ga. App. 4 (2004)

(holding, a seller’s contractual misrepresentation as to the status of a premise’s septic

tank is actionable if a sewage issue arises from the septic tank later). Because

Defendant plainly misrepresented a term of the contract, lability here is clear.

Therefore, Plaintiff seeks summary judgment on liability in this matter, and a hearing

on damages to follow.

II. PROCEDURAL HISTORY

On November 2, 2021, Plaintiff filed the instant complaint for breach of

contract.

This Motion follows.

III. FACTUAL BACKGROUND

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This matter concerns the sale of real property located at 2294 Fairview Road,

Conyers, Georgia (hereinafter, the “Subject Property”). Plaintiff and Defendant

each executed the original Purchase and Sales Agreement on December 18, 2020.

See, Exhibit A (Purchase and Sales Agreement, with exhibits and amendments);1 see

also, Plaintiff’s Complaint, ¶ 8; Defendant’s Answer, ¶ 8. Plaintiff was identified as

the buyer of the property, and Defendant is identified as the seller. See, Exhibit A,

pg. 1; Plaintiff’s Complaint, ¶ 9-10; Defendant’s Answer, ¶ 9-10. By its plain terms,

the Purchase and Sales Agreement incorporated a seller’s property disclosure

statement (hereinafter, the “Seller’s Disclosure Statement”). See, Exhibit A, pg. 7,

¶ 8 (incorporating the Seller’s Disclosure Statement as Exhibit D of the agreement

and providing that “[a]ll exhibits and/or addenda attached hereto, listed below, or

referenced herein are made a part of this Agreement.”); see also, Plaintiff’s

Complaint, ¶ 15; Defendant’s Answer, ¶ 15. Because of its centrality to this case,

a copy of the Seller’s Disclosure Statement is attached separate as Exhibit B of this

Motion for Summary Judgment.

In the Seller’s Disclosure Statement, Defendant represented that the sewer

system supporting the Subject Property emanated from a public source. See, Exhibit

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As Defendant’s Answer correctly points out, the parties executed multiple, subsequent
amendments to the Purchase Agreement after the original execution date (which are likewise
incorporated into the Purchase Agreement). These amendments are incorporated into the original
Purchase Agreement, but did not amend the relevant terms that give rise to the breach of contract
claim in this case.

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B, pg. 2, ¶6(c). see also, Plaintiff’s Complaint, ¶ 16; Defendant’s Answer, ¶ 16.

Additionally, in the Seller’s Disclosure Statement, Defendant represented that the

Subject Property was not supported by a septic tank sewer system. See, Exhibit B,

pg. 2, ¶6(e); see also, Plaintiff’s Complaint, ¶ 17; Defendant’s Answer, ¶ 17. Finally,

Defendant represented that there were no problems with the sewage systems

servicing the Subject Property. See, Exhibit B, pg. 2, ¶6(g). The parties closed on

the transaction on January 29, 2021. See, Affidavit of Laniesha Jackson-Smalls.

However, in contravention of the representations made by Seller, the Subject

Property was not supported by a public sewage system—but rather by a septic tank.

See, Affidavit of Laniesha Jackson-Smalls; Plaintiff’s Complaint, ¶ 23; Defendant’s

Answer, ¶ 23. Shortly after Plaintiff closed on the Subject Property, Plaintiff

realized that the waste system was completely inoperable. See, Affidavit of

Laniesha Jackson-Smalls. Plaintiff initially attempted to clean out the existing septic

tank system, which cost Plaintiff an amount of $725.00 on June 22, 2021. See,

Affidavit of Laniesha Jackson-Smalls; see also, Exhibit C (Receipt of Septic Tank

Cleaning Service). Nevertheless, even after cleaning the septic tank system, it

became evident that the system itself needed to be replaced. See, Affidavit of

Laniesha Jackson-Smalls. Therefore, Plaintiff was compelled to replace the existing

septic tank system with a new one, costing Plaintiff an amount of $14,400.00. See,

Affidavit of Laniesha Jackson-Smalls; see also, Exhibit D (Receipt of Septic Tank

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Replacement Service). The repair and replacement of the septic tank system also

required Plaintiff to repair his lawn, including the resodding and replanting of the

greenery displaced by the septic tank work. See, Affidavit of Laniesha Jackson-

Smalls. The affected yard work likewise cost Plaintiff several thousand dollars. See,

Affidavit of Laniesha Jackson-Smalls; see also, Exhibit E (Checks of Yard Service

Work).

IV. STANDARD OF REVIEW

A. SUMMARY JUDGMENT STANDARD

Under Georgia law, “[summary judgment] shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law[.]” O.C.G.A.

9-11-56(c). Moreover, where there are no genuine issues to be tried or the evidence

does not raise a jury question, summary judgment serves a useful purpose of

avoiding pointless expenditure of time and money. See generally, Davison's Auto

Serv. Co. v. Security Ins. Co., 187 Ga.App. 220 (1988); Brown v. J.C Penney Co.,

123 Ga.App. 233 (1971) (eliminating necessity of trial by jury where there was no

genuine issue to be tried). It is well-established that, “[t]o obtain summary judgment,

a defendant need not produce any evidence, but must only point to an absence of

evidence supporting at least one essential element of the Plaintiffs claim.”

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Wiederkehr v. Brent, 248 Ga.App. 645, 647, 548 S.E.2d 402 (2001) (citing, Lau's

Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991)); Berry v. Hamilton, 246

Ga.App. 608, 541 S.E.2d 428 (2000).

B. BREACH OF CONTRACT STANDARD

“The elements for a breach of contract claim in Georgia are the (1) breach and

the (2) resultant damages (3) to the party who has the right to complain about the

contract being broken.” Duke Galish, LLC v. Manton, 707 S.E.2d 555, 559 (Ga.App.

2011). “[G]enerally contract disputes are particularly well suited for adjudication

by summary judgment because construction of contracts is ordinarily a matter of law

for the court . . ..” Terry Hunt Const. Co., Inc. v. AON Risk Services, Inc., 613

S.E.2d 165, 168 (Ga. App. 2005). “Thus, even if a contract might be ambiguous,

jury questions are not presented unless the application of the rules of contract

construction fails to resolve the ambiguity.” Nationwide Mut. Fire Ins. Co. v.

Somers, 264 Ga. App. 421 (2003).

Because Plaintiff can (at this stage) demonstrate standing, damages, and

breach; then he is entitled to summary judgment in this matter—with only the

amount of damages as pending for a determination by a fact-finder.

V. LEGAL ARGUMENTS

A. WRITTEN CONTRACTUAL MISREPRESENTATIONS AS TO
THE EXISTENCE OR STATUS OF REPAIRS OF A SEPTIC TANK

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SYSTEM ESTABLISH AS VIABLE BREACH OF CONTRACT
CLAIM

The facts of this case largely are not in dispute. Both parties acknowledge

signing the Purchase and Sales Agreement. Both parties acknowledge that the

Seller’s Disclosure Statement was incorporated into the Purchase and Sales

Agreement. See also, HA & W Fin. Advisors, LLC v. Johnson, 336 Ga .App. 647

(2016) (holding, “contemporaneous agreements entered into by the same parties

arising out of the same transaction may be read together to show one contract.”); see

also, Paden v. Murray, 240 Ga. App. 487 (1999) (an attached seller’s disclosure

statement is considered to be incorporated into a purchase and sales agreement for

real estate). Both parties acknowledge that Defendant, in the Seller’s Disclosure

Statement, errantly averred that the Subject Property was serviced by public sewage

and that there was no septic tank on the Subject Property. See, Exhibit B, pg. 2,

¶6(c), 6(e). Additionally, Defendant’s Seller’s Disclosure Statement represented

that there were no problems with the sewage system. See, Exhibit B, pg. 2, ¶6(g).

Defendant contends that these misrepresentations were unintentional, and thus

cannot give rise to a breach of contract claim. Georgia precedent commands

otherwise.

In Paden v. Murray, the buyer of a residential home sued the seller for

misrepresentations related to multiple defects related to the home, including a leaky

roof. Paden, 240 Ga. App. at 487. The Georgia Court of Appeals held that, for most

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of the defects, no breach of contract claim was available because the buyer had an

opportunity to inspect the property prior to the sale. Id. However, the Court of

Appeals also noted that the parties had signed a seller’s disclosure statement. “which

was attached to the sales agreement and made a part thereof” and had “squarely

addressed” the status of the roof. Id. Specifically, the seller’s disclosure statement

in Paden had represented “that there had been no problems with the roof of the home,

past or present.” Id. However, evidence in discovery had demonstrated that the

seller’s “disclosure with regard to the past and present condition of the roof of the

home was inaccurate,” since the roof had leaked during the Defendant’s possession

of said home. Id. Accordingly, because the statements made by the seller (in the

seller’s disclosure statement) concerning a particular property defect were

inaccurate, the buyer’s breach of contract claim survived the seller’s attempt to

dismiss at summary judgment.

In Smiley v. S&J Investments, Inc., the property seller likewise executed an

attached “standard form” seller’s property disclosure statement. Smiley, 260 Ga.

App. at 493. In the seller’s property disclosure statement, the seller checked “no” as

it related to questions discussing the existence of settling issues, draining or flooding

issues, structural and foundation issues, and walkway or driveway issues. Id.

However, even though the home was inspected prior to the consummation of the

sale, the facts later revealed that the home suffered from all of these defects.

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Reversing the trial court’s ruling on the defense’s summary judgment, the Court of

Appeals held,

the plaintiffs can sue [the sellers] for breach of contract arising from
the incorporation of such false terms into the contract, i.e., the house
contained structural defects although the contract stated that it did not.
Thus, knowledge or lack of knowledge of such structural defects under
the contract by [the sellers] does not constitute a contract defense,
because the absence of structural defects in the house was a term of the
contract.

Id.

Accordingly, because the sellers in Smiley misrepresented the existence of the

structural defects (once again, in the seller’s disclosure statement), then the buyer

had a viable breach of contract claim against the sellers. As highlighted by the Court

of Appeals, the sellers’ actual knowledge of the defects was inapposite, because the

absence of the defects were made terms of the contract—and the existence of those

defects constituted a breach. Id.

Finally, in Hudson v. Pollock, the seller of a residential home misrepresented

the maintenance status of a septic tank system. Hudson, 267 Ga. App at 4 (2004).

Specifically, the seller had executed a seller’s disclosure statement which errantly

stated that he was not “aware of any past or present leaks, backups, or other similar

problems relating to any of the plumbing, water and/or sewage-related items.” Id.

However, the home (in fact) suffered from a litany of septic tank related problems.

Id. Because of the disclosure statement misrepresentation regarding the septic

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system, the buyers were allowed to proceed on their negligent misrepresentation

claim against the sellers. Id.

The holdings of Paden, Smiley, and Hudson inform (and ultimately control)

instanter. Like in Paden, Smiley, and Hudson, the Defendant here has made an

inaccurate statement about the condition of the home in its Seller Disclosure

Statement. Such misstatements by a contracting party support the basis of a breach

of contract claim. Georgia law doesn’t require that the misstatement be intentional,

only that they be “inaccurate.” See, Paden, 240 Ga. App. at 487. The fact that

Defendant didn’t actually know about the existence of the septic tank (and the non-

existence of the public sewage system) does not relieve contract liability. By

errantly representing the status and existence of these sewage systems in the Seller’s

Disclosure Statement, Defendant breached the Purchase Agreement by its plain

terms. Accordingly, Defendant is liable for its contract breach in this case, and

summary judgment as to that issue should be granted in favor of Plaintiff.

B. PLAINTIFF IS ENTITLED TO RECOVER ITS COURT COSTS
AND ATTORNEYS’ FEES

Section C(2)(d) of the Purchase and Sales Agreement states as follows, “[i]n any

litigation or arbitration arising out of this Agreement, including but not limited to

breach of contract claims between Buyer and Seller and commission claims brought

by a broker, the non-prevailing party shall be liable to the prevailing party for its

reasonable attorney’s fees and expenses.” Since Plaintiff can demonstrate

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Defendant’s breach, Plaintiff is entitled to its attorneys’ fees in connection with this

action, as provable before a factfinder.

VI. CONCLUSION

WHEREFORE, for all the reasons set forth above, Plaintiff respectfully

requests that the Court: (1) grant his Motion for Partial Summary Judgment (on

Liability Only); (2) hold a hearing on damages; (3) and grant Defendant such other

and further relief the Court deems as just and proper.

Respectfully submitted this 4th day of November

_______________________________
Will Martinez, Esq. (GA Bar #: 162009)
MARTINEZ LAW FIRM, LLC
3365 Piedmont Road, Suite 1400
Atlanta, Georgia 30305
Tel: (470) 869-3293
wdmartinez@martlegal.com

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IN THE SUPERIOR COURT OF GWINNETT COUNTY
STATE OF GEORGIA

CERTIFICATE OF SERVICE

This is to certify that I have, this day, served the following parties in the
foregoing matter with a copy of this PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT (ON LIABILITY ONLY) by either 1) depositing in
the United States mail a copy of the same in a properly addressed envelope with
adequate postage thereon to, or 2) electronically filing this document using this
Court’s designated e-filing system, which will automatically send email notification
of such filing to the attorneys of record in this case.

Respectfully submitted this 4th day of November

_______________________________
Will Martinez, Esq. (GA Bar #: 162009)
MARTINEZ LAW FIRM, LLC
3365 Piedmont Road, Suite 1400
Atlanta, Georgia 30305
Tel: (470) 869-3293
wdmartinez@martlegal.com

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EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E

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