Adams v. DeWitt

760 S.E.2d 191, 327 Ga. App. 576, 2014 Fulton County D. Rep. 1599, 2014 WL 2609974, 2014 Ga. App. LEXIS 380
CourtCourt of Appeals of Georgia
DecidedJune 12, 2014
DocketA14A0584
StatusPublished
Cited by1 cases

This text of 760 S.E.2d 191 (Adams v. DeWitt) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adams v. DeWitt, 760 S.E.2d 191, 327 Ga. App. 576, 2014 Fulton County D. Rep. 1599, 2014 WL 2609974, 2014 Ga. App. LEXIS 380 (Ga. Ct. App. 2014).

Opinion

ANDREWS, Presiding Judge.

This appeal arises out of an action for negligent misrepresentation Anthony D. Adams, Sr. and North Beach, LLC (“North Beach”) commenced against F. Andrew DeWitt and his real estate appraisal firm, Cook & DeWitt, Inc. The trial court granted the defendants’ motion for summary judgment, and Adams and North Beach now appeal, arguing that the trial court erred in concluding that the defendants did not owe them a duty of care and that they could not establish reasonable reliance on a misrepresentation of fact. We agree with the trial court that the defendants did not owe Adams and North Beach a duty of care under the circumstances, and we therefore affirm.

In an appeal from the grant of a motion for summary judgment, we review the law and evidence de novo. Aubain-Gray v. Hobby Lobby Stores, 323 Ga. App. 672 (747 SE2d 684) (2013). A motion for summary judgment should be granted when the evidence, construed in the nonmovant’s favor, shows that no genuine issue of material fact remains and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

So viewed, the evidence shows that in 2008, a loan officer at First National Bank (“FNB”) contacted Adams’s son, Steve Adams, and asked him if Adams would be interested in looking at a property under development on Tybee Island, consisting of 25 residential lots. The property was owned at the time by The Woods at North Beach, LLC (“The Woods”). Due to a disagreement among its members, The Woods did not wish to continue developing the property, and FNB was trying to help The Woods find someone to take over the property and to assume responsibility for a loan The Woods had obtained from FNB. Steve told Adams about the property, and Adams viewed the property with Steve and the FNB loan officer.

[577]*577Shortly after learning of the property, Adams formed North Beach, and he is its sole member. On March 28, 2008, North Beach purchased a promissory note and deed to secure debt The Woods had executed in FNB’s favor. FNB made a short-term loan to North Beach of $3,183,700 to finance the purchase. Adams personally guaranteed the loan. At the time of this transaction, Adams and FNB understood that North Beach would foreclose on the property, purchase it in foreclosure, and then obtain a new development loan from FNB.1 Following the second loan, Adams intended to further develop and then sell the lots and had an understanding with Steve that he would purchase 15 lots.

By letter dated April 4,2008, FNB engaged DeWitt to perform an appraisal of the property. FNB’s engagement letter described the function of the appraisal as follows: “Bank will rely upon this appraisal for internal use, including but not limited to, rendering a decision relative to a financial transaction.” Pursuant to the engagement letter, DeWitt appraised the property and prepared an appraisal report showing an “as is” valuation of $5,000,000 as of May 1, 2008.2 The report stated: “This report is intended for use by .. . [FNB]. Use of this report by others is not intended by the appraiser. This report is intended only for use in providing data upon which the client may analyze the property as collateral for a mortgage loan. This report is not intended for any other use.” The report also stated: “It is our understanding [that] this appraisal will be utilized by the client as the basis for decision making purposes regarding the underwriting criteria for a mortgage loan.” An executive summary in the report mistakenly identified Steve Adams as the borrower.3 In a cover letter accompanying the appraisal, DeWitt stated that the appraisal was subject to specific limiting conditions, including the following:

1. No environmental site assessment (ESA) was provided to the appraiser. The site is assumed to be free of any contamination of any kind including any fill which may or may not exist. 2. This development was built over an abandoned landfill. This valuation assumes that all environmental issues have been or will be resolved.

[578]*578North Beach initiated foreclosure proceedings and ultimately purchased the property at a foreclosure sale on May 6, 2008. On the same day, FNB loaned North Beach up to $4 million to repay the first loan and develop the property. The settlement statement for the second loan indicates that North Beach was required to reimburse FNB for the cost of the appraisal. North Beach never completed the planned development work on the property. Adams testified that work ceased due to buried trash on the site and the cost of the clean up work the City of Tybee Island wanted North Beach to perform.

Adams could not recall when he first saw the DeWitt appraisal but stated that he was “fairly sure” he read it before the second loan closed. Adams stated that DeWitt did not give him the report and that he ‘believed” he picked it up at FNB.

DeWitt stated in an affidavit that he knew nothing about North Beach and never met Adams until after Adams and North Beach filed their lawsuit against him. He did not intend for North Beach or Adams to use or rely upon his appraisal. DeWitt stated that he never gave the appraisal to anyone other than the employee at FNB who ordered it and that he was not aware that any representative of the bank was going to give a copy of it to Adams.

1. Adams and North Beach argue that the trial court erred in concluding that DeWitt did not owe them a duty of care. We disagree.

Adams and North Beach allege in their complaint that DeWitt breached the professional standard of care applicable to real estate appraisers in preparing his appraisal and that they relied on representations in the appraisal to their detriment when they proceeded to foreclose on and purchase the property. They allege that Cook & DeWitt is vicariously liable for DeWitt’s negligence.

In Robert & Co. Assoc. v. Rhodes-Haverty Partnership, the Supreme Court of Georgia established a rule governing the viability of a negligent misrepresentation claim against a professional in the absence of privity4 and involving economic loss only:

[0]ne who supplies information during the course of his business, profession, [or] employment . . . has a duty of reasonable care and competence to parties who rely upon the information in circumstances in which the maker was manifestly aware of the use to which the information was to be put and intended that it be so used. This liability is limited to a foreseeable person or limited class of persons for whom the [579]*579information was intended, either directly or indirectly. In making a determination of whether the reliance by the third party is justifiable, we will look to the purpose for which the report or representation was made. If it can be shown that the representation was made for the purpose of inducing third parties to rely and act upon the reliance, then liability to the third party can attach. . . . The additional duty that this rule imposes may be, of course, limited by appropriate disclaimers which would alert those not in privity with the supplier of information that they may rely upon it only at their peril.

250 Ga. 680, 681-682 (300 SE2d 503) (1983). In its subsequent decision in Badische Corp. v. Caylor,

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760 S.E.2d 191, 327 Ga. App. 576, 2014 Fulton County D. Rep. 1599, 2014 WL 2609974, 2014 Ga. App. LEXIS 380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-dewitt-gactapp-2014.