Contract – Real Estate Agent – Real Property Inspection – Release & Indemnity Provision

Our courts have upheld liability waivers executed prior to the activities which were subject to the waivers, e.g., paintball games, McCune v. Myrtle Beach Indoor Shooting Range, Inc., 364 S.C. 242, 612 S.E.2d 462 (Ct. App. 2005). Here, the plaintiff-buyer signed a contract containing a release of the defendant-real estate agent from claims including those relating to home inspections. That provision was effective to release the real estate agent from any subsequent negligence by the HVAC inspector, whom the buyer chose from a list provided by the real estate agent.

We affirm summary judgment for real estate agent Demetra Caldera and the defendant-realty agency, South Market Real Estate (South Market).

The release in question explicitly provides that Owens “releases, indemnifies and holds harmless South Market Real Estate and its licensees from and of any and all actions, claims, or demands regarding” the selection of home inspectors or home inspectors acts and omissions. Applying basic contract principles and the general rule upholding limitations of liability and exculpatory clauses, we hold the release unambiguously released Caldera and South Market from plaintiff’s claim.

Although an email from Caldera to plaintiff passed along the HVAC inspection results, saying the system “looks good,” no evidence establishes that Caldera affirmatively represented the condition of the HVAC system to plaintiff or that she knew the condition of the system.

The record does not show an actual agency relationship between Caldera and South Market. By affidavit, South Market owner Tonya Graves stated South Market had little control over Caldera and it had very little to do with the “marketing, sale, and closing” of the property in question. Additionally, plaintiff failed to come forward with specific facts showing there was a genuine issue as to the control South Market had over Caldera in the purported principal-agent relationship.

The record also failed to show an apparent agency relationship. First, plaintiff relies on the allegations in her pleadings to argue South Market’s utilization of its logo on the release document’s letterhead and Graves’ failure to disavow Caldera as South Market’s agent. Furthermore, plaintiff failed to show any reliance and change in position she had on South Market’s alleged representation of apparent authority. Rather, plaintiff acknowledges that she initially reached out to Caldera.

Because Caldera was a licensee and released from liability by the release and indemnification provision, the provision barred plaintiff from recovering against Caldera and South Market.

Finally, given that (1) the release and indemnification provision allows for indemnification; (2) this court reviews the reasonableness of awarded attorney’s fees under an abuse of discretion standard; and (3) the only amount of indemnification would be attorneys’ fees and costs, we hold the circuit court did not err in ordering a damages hearing if the parties dispute the indemnification amount.

Affirmed.

Owens v. Mountain Air Heating & Cooling (Lawyers Weekly No. 011-064-23, 11 pp.) (James Lockemy, A.J.) Appealed from Richland County Circuit Court (Thomas Russo, J.) Andrew Sims Radeker for appellant; Margaret Collins, Elizabeth Dyanne Moore, Kelley Reed Leddy and William Padget for respondents. South Carolina Court of Appeals