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Rivers v. Revington Glen Investments, LLC.

Court of Appeals of Georgia, Fourth Division

June 20, 2018

RIVERS
v.
REVINGTON GLEN INVESTMENTS, LLC.

          DILLARD, C. J., DOYLE, P. J., and MERCIER, J.

          Doyle, Presiding Judge.

         This case arises from an action filed by Revington Glen Investments, LLC, ("Revington") against William G. Rivers, individually and as sole trustee of the Rivers Family Trust, and other individuals, [1] alleging breach of warranty, misrepresentation, intentional concealment, and nuisance related to a real estate transaction between the parties. The parties filed cross-motions for summary judgment, and the trial court granted summary judgment to Rivers individually as to all claims and to the Trust in regard to all claims except as to breach of warranty. With regard to that claim, the trial court found that the Trust had breached the warranty appearing in the sales contract, and it granted summary judgment to Revington as to that claim. The case proceeded to a bench trial on damages, and after a hearing, the trial court awarded Revington $208, 318.94.

         The Trust appeals, arguing that the trial court erred by granting summary judgment to Revington on the issue of breach of warranty and by awarding damages to Revington based on that breach.[2] For the reasons that follow, we reverse.

On appellate review of a bench trial, the factual findings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. In bench trials, the judge sits as trier of fact[, ] and the court's findings are analogous to a jury's verdict and should not be disturbed if there is any evidence to support them.[3]

         Moreover,

[s]ummary judgment is appropriate if the pleadings and evidence show no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. On appeal from the grant or denial of summary judgment, an appellate court conducts a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party.[4]

         It is undisputed that in 2013, Rivers, on behalf of the Trust, entered into a contract to sell 7.5 acres of land to Revington. The Trust had acquired the land in 2012 from Richard DeThomas, who had acquired the property in 2005 from Clinton and Tammy Sheriff. According to Rivers, he had "never walked the property" before agreeing to sell it to Revington.

         In addition to various other provisions of the contract, the parties agreed pursuant to "Article 9 Environmental Matters" that

A. Seller represents and warrants to Purchaser on this date and as of the Closing Date, that:
(i) Seller has at all times complied with, and has not violated in connection with the ownership, use, maintenance or operation of the Property and the conduct of the business related thereto, any applicable federal, state, county or local laws, regulations, rules, ordinances, codes, standards, orders, licenses and permits of any governmental authorities relating to environmental matters.
B. Seller represents that to its knowledge and belief on this and as of the Closing Date that:
(i) No Hazardous Substance (as hereinafter defined) exists on or under the Property, and that Seller, nor any of its predecessors in title have ever used the Property for processing, storage or disposal of any Hazardous Substance. This warranty shall survive the closing of the transaction contemplated herein and shall not be merged with the deed. . . .
(ii) Seller and any other person for whose conduct it is or may be held responsible, has at all times complied with, and has not violated in connection with the ownership, use, maintenance or operation of the Property and the business related thereto, any applicable federal, state, county or local laws, regulations, rules, ordinances, codes, standards, orders, ...

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