Christopher E. Soniat and Deborah F. Soniat appeal from a summary judgment entered in favor of Johnson-Rast Hays; its employee, Peggy Miller; and Dr. Heide Rice (hereinafter "the defendants"). The Soniats had purchased a used residence from Rice; Johnson-Rast Hays's employee, Peggy Miller, was the listing agent for the sale. Shortly after moving into the house, the Soniats discovered that the house was infested with termites and that the house had substantial termite damage. The Soniats sued, alleging fraud, fraudulent concealment, and suppression of material facts. The trial court granted the defendants' motion for summary judgment, and the Soniats appealed.¹ *Page 1258

A summary judgment is appropriate upon a showing that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The movant " 'bears the initial responsibility of informing the [trial] court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.' " Lawson StateCommunity College v. First Continental Leasing Corp.,529 So.2d 926, 936 (Ala. 1988) (quoting Celotex Corp. v. Catrett,477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c))); see Berner v. Caldwell, 543 So.2d 686 (Ala. 1989). In order to defeat a properly supported motion for summary judgment, the nonmovant must present "substantial evidence" supporting the nonmovant's position and creating a genuine issue of material fact. See § 12-21-12, Ala. Code 1975; Ala.R.Civ.P. 56. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co.of Florida, 547 So.2d 870, 871 (Ala. 1989).

Viewing the record before this Court, we find the following facts: The Soniats contracted to purchase a used residence from Rice. Miller represented the property as the exclusive listing agent. Before the closing of the sale, the Soniats viewed the property, but did not ask Miller or Rice about termites or prior termite damage. The Soniats had an independent inspector look over the property before the closing, and he did not report any termite damage.

Also, before the closing, Miller contacted American Termite Pest Control Company (hereinafter "American Termite"), the company that had provided termite protection to the property since 1980. When Rice purchased the house in 1980, American Termite provided her, at the closing, with a graph that showed termite damage to the house. Thereafter, when American Termite inspected the house, Rice acknowledged that the house contained "old termite damage."

Charles Sutton, the president of American Termite, testified that he had been contacted before the Soniat closing and asked to prepare a termite bond for the closing. Sutton testified that he put the following three items into an envelope: (1) a "termite letter" stating that American Termite had observed no live termites when it last inspected the property; (2) the termite bond; and (3) a graph showing where the house had old termite damage. According to Sutton, the envelope was left in American Termite's front office to be picked up. Sutton did not see who picked up the envelope.

At closing, Rice handed the Soniats the termite letter and the termite bond; the graph was not attached, and the letter and the bond were not in the envelope from American Termite. Rice testified in her deposition that Miller had agreed to pick up the envelope from American Termite. Miller testified that she did not pick up the envelope and that she had no idea how the termite letter and the bond got to the closing.

The Soniats argue on appeal that the summary judgment on their claims was improper because, they say, according to the facts presented either Rice or Miller had removed the graph showing old termite damage from the envelope so that the graph was not shown to the Soniats at closing. The Soniats allege that had they seen the graph they would not have bought the house, and that, but for the alleged "active" fraudulent concealment of the defendants, they would have seen the graph.

In order to establish fraudulent concealment, a plaintiff must show (1) that the defendant had a duty to disclose a material fact; (2) that the defendant either failed to disclose or concealed that material fact; (3) that the defendant's failure to disclose or his concealment of that material fact induced the plaintiff to act or to refrain from acting; and (4) that the plaintiff suffered damage as a result of his action, or inaction, induced by the defendant's failure to disclose or his concealment *Page 1259 of the material fact. See Cornelius v. Austin, 542 So.2d 1220,1223 (Ala. 1989).

" 'Concealment implies design, or purpose. That it may furnish a sufficient cause of action, the fact suppressed must not be only material, but the materiality must either be known to the seller, or the facts must so constitute an element of the value of the contract, as to authorize the inference of knowledge of its materiality.' "

As a condition to closing, the Soniats required a termite bond, which was prepared by American Termite. Sutton testified that he had included the graph with the termite letter and the termite bond so that the buyer would have the full picture of the existing termite damage. The Soniats testified that they would not have gone through with the closing if they had seen the graph. Therefore, we hold that the jury could find that the graph was a material fact.

Also, assuming that the jury could find that one of the defendants removed the graph, the jury could infer that the graph was removed for the purpose of concealing the graph from the Soniats and that the defendant removing the graphknew of the graph's materiality to the transaction. The defendants, however, contend that the record fails to show that they had knowledge of the "material fact" because they say they did not know that the property had either old termite damage or live termite infestation. Regardless of whether the defendants knew about a prior or an existing termite problem, the "material fact" suppressed was that American Termite had provided a graph to be given the Soniats at the closing that showed old termite damage. This fact was necessarily "known" to whoever removed the graph from the envelope. Therefore, reviewing the evidence before the trial court on the summary judgment motion, we hold that the Soniats presented substantial evidence from which the jury could infer that the defendants knowingly concealed a material fact.

However, it is undisputed that the Soniats received only the termite bond and the termite letter. These two documents had been removed from the American Termite envelope, and the only item missing was the graph showing old termite damage. A jury could infer from Rice's subsequent presentation of two of the three items at the closing that one of the two defendants had picked up the envelope from American Termite and had removed the graph from the envelope before giving the remaining items to the Soniats at closing. Therefore, the record reveals substantial evidence that Miller and/or Rice concealed the graph from the Soniats.

"It is not indispensable that the misrepresentation or concealment shall be the sole inducement; it is sufficient if it materially contributes, and is of such character that the purchaser would not have consummated the contract, had he known the falsity of the statement, or the fact suppressed."

We note that the inspection produced no information regarding the old termite damage. We also note that the Soniats stated that they would not have bought the house if they had seen the graph. Therefore, we hold that there is sufficient evidence from which a jury could find that the suppression of the graph "materially contribute[d] and [was] of such character that the [Soniats] would not have consummated the contract, had [they] known . . . the fact suppressed." See id. *Page 1261

REVERSED AND REMANDED.

HORNSBY, C.J., and ALMON, SHORES and HOUSTON, JJ., concur.

MADDOX, J., dissents.

I do not find substantial evidence creating a genuine issue of material fact to overcome the defendants' prima facie showing that they were entitled to a summary judgment based on their having no duty to disclose the graph and on the fact that the buyers bought the house "as is." I would affirm the judgment of the trial court.