THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Oswald-White and Associates, Inc.,        Respondent,

v.

Carn F. Hiott,        Appellant.

Appeal From Colleton County
Harris Beach, Special Referee

Memorandum Opinion No. 2004-MO-037
Heard June 8, 2004 - Filed July 12, 2004

REVERSED

Ronnie L. Crosby, of Peters, Murdaugh, Parker, Eltzroth & Detrick, P.A., of Hampton, for Appellant.

Elbert O. Duffie, III., of Bogoslow, Jones, Stephens & Duffie, P.A., of Walterboro, for Respondent.

JUSTICE BURNETT:� Respondent Oswald-White and Associates, Inc. (Oswald-White), a real estate company, brought this action for payment of a real estate commission from Appellant Carn F. Hiott (Hiott) under an Exclusive Right to Sell Agreement (Agreement) entered into by the parties.� The Special Referee awarded Oswald-White $20,016, the contractually agreed commission. [1] � We reverse.

FACTS

In the early 1980s, Hiott purchased a 111.2-acre tract of land located in Colleton County from his father for $400 per acre.� His father previously purchased the parcel from a neighbor who operated a service station on the property when Hiott was a child.

On September 27, 1999, Hiott and Oswald-White entered into an Exclusive Right to Sell Agreement, which was a standard form contract drafted by Oswald-White.� The Agreement provided Oswald-White was to receive a commission of 10 percent of the purchase price for its services in obtaining a purchaser.�

On November 19, 1999, John R. Hetrick (Hetrick) agreed to buy the tract for $1,800 per acre.� Three or four days before the Hetrick agreement, Hiott discovered what he thought could be contamination on the property.� This discovery reminded him that oil drums had been buried on the property when he was a child.� Hiott, by his own admission, made an anonymous telephone call to Hetrick�s office two days after Hetrick agreed to buy the property discouraging Hetrick from purchasing the tract because of the buried oil drums and potential contamination.� �

Thereafter, Hetrick withdrew his offer to purchase the property.� Hiott agreed to sell the property only if Hetrick would sign a hold harmless agreement absolving Hiott of any liability for any contamination existing on the tract.� Hetrick refused and no sales contract was ever executed.�� ��

In this action Oswald-White alleges breach of contract, fraudulent misrepresentation, negligent misrepresentation, breach of contract with fraudulent intent, and breach of implied covenant of good faith and fair dealing.� The special referee granted judgment in favor of Hiott on all claims except Oswald-White�s negligent misrepresentation claim.� Holding Hiott�s negligent misrepresentation of the condition of the land resulted in Oswald-White�s lost commission, the special referee ordered judgment in favor of Oswald-White.

ISSUE

Did the special referee err in awarding Oswald-White commission based on Hiott�s alleged negligent misrepresentation of the condition of the land?

ANALYSIS

The special referee determined Oswald-White earned its commission on the date Hetrick agreed to buy the property and paid the required earnest money.� According to the referee, Hiott�s negligent misrepresentation occurred when he discovered the potentially hazardous condition of the property and did not notify Oswald-White until two days after Oswald-White received Hetrick�s offer to purchase the property.� The referee concluded Hiott�s failure to disclose the condition of the property directly and proximately caused Oswald-White to lose the commission to which it is entitled under its contract with Hiott.� We disagree.

The elements necessary to sustain a cause of action for negligent misrepresentation are not satisfied in this case.� To establish liability for negligent misrepresentation, the plaintiff must show (1) the defendant made a false representation to the plaintiff; (2) the defendant had a pecuniary interest in making the representation; (3) the defendant owed a duty of care to see that he communicated truthful information to the plaintiff; (4) the defendant breached that duty by failing to exercise due care; (5) the plaintiff justifiably relied on the representation; and (6) the plaintiff suffered a pecuniary loss as a result of his reliance upon the representation.� Sauner v. Public Service Authority of South Carolina, 354 S.C. 397, 407, 581 S.E.2d 161, 166 (2003).� Evidence of a mere broken promise is not sufficient to prove negligent misrepresentation.� Id.

Oswald-White�s claim fails under a negligent misrepresentation theory.� An essential element of this cause of action is the defendant provide false information.� Hiott provided no false information.� Oswald-White argues Hiott�s failure to communicate the potential contamination to the agency immediately upon discovery constitutes the false statement.� While it is true silence can be a false representation, a true statement cannot give rise to a claim of fraud or negligent misrepresentation.� Hiott did what the law required him to do, i.e., tell the truth.� Although Hiott initially revealed his concerns surreptitiously through the anonymous phone call, he, nonetheless, told the truth.�� In Lawson v. Citizens & Southern National Bank of S.C., 255 S.C. 517, 180 S.E.2d 206 (1971), this Court held that a duty is imposed upon the seller of land to disclose to the purchaser of land the existence of unstable conditions which are artificially created and concealed.� Hiott did so when he called Hetrick to report what he suspected could be contamination on the property.� Accordingly, we reverse.

REVERSED.

TOAL, C.J., MOORE, WALLER and PLEICONES, JJ., concur.