Saffar v. Chrysler First Business Credit Corp.

450 S.E.2d 267, 215 Ga. App. 239, 94 Fulton County D. Rep. 3613, 1994 Ga. App. LEXIS 1192
CourtCourt of Appeals of Georgia
DecidedNovember 1, 1994
DocketA94A2254
StatusPublished
Cited by17 cases

This text of 450 S.E.2d 267 (Saffar v. Chrysler First Business Credit Corp.) 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
Saffar v. Chrysler First Business Credit Corp., 450 S.E.2d 267, 215 Ga. App. 239, 94 Fulton County D. Rep. 3613, 1994 Ga. App. LEXIS 1192 (Ga. Ct. App. 1994).

Opinion

Birdsong, Presiding Judge.

Joseph Saffar, Jr., appeals from the orders of the superior court granting appellee/plaintiff Chrysler First Business Credit Corporation’s (“CFBCC”) motion for summary judgment as to appellee’s claim and appellant’s counterclaim, and the entry of final judgment in behalf of appellee.

Appellant contracted to purchase and ultimately purchased an apartment complex from Frederick Spencer for $900,000. Appellant was loaned $500,000 mortgage money by appellee CFBCC and executed a security deed and a promissory note in that amount to CFBCC as security. The seller Spencer purchased the property, apparently out of bankruptcy from the Windy Valley Investment Group, Ltd. (“Windy Valley”) for $400,000. Appellee CFBCC was not a party to the purchase or sales contract between appellant and Spencer; neither was it a party to the purchase or sales contract between Spencer and Windy Valley. Spencer did not have legal title to the property at the time he entered the original sales contract with appellant; however, he acquired title during a joint closing at which all of the above parties were present and participated. At the closing, Spencer appears to have closed first and then immediately to have conveyed title to the property to appellant. Further, by the date of closing, the effective date of the sales contract between appellant and Spencer had expired; nevertheless, these parties proceeded with the sale under, at least, modified terms as to the manner in which the $900,000 purchase price would be funded. Appellant elected not to be represented by individual counsel at closing.

Appellant subsequently discovered that Spencer had purchased [240]*240the property at the same closing for only $400,000 and that substantial repairs, particularly as to underground and related plumbing, were needed on the premises; appellant thereafter quit paying on the note. Appellee brought suit on the note and appellant filed an amended answer and counterclaim averring fraud. Appellant contends on appeal that the trial court erred in granting appellee’s motion for summary judgment as genuine issues of material fact exist whether: (a) appellee fraudulently concealed material information from appellant which it should have disclosed and was required to disclose under the circumstances; (b) appellee fraudulently made a material misrepresentation to defendant that it had obtained an appraisal; and (c) the amount of the debt was in factual dispute. Held:

1. We first address appellant’s contention that a genuine material fact exists as to the amount that was due and owing on the loan. Appellant’s brief contains no citations to any page of the record or transcript in support of this enumeration in violation of Court of Appeals Rule 15 (c) (3). Further, examination of the argument of counsel for appellant at the hearing on motion for summary judgment, the response of appellant/defendant to plaintiff’s motion for summary judgment, and appellant/defendant’s statement of material facts to which there is a genuine issue to be tried, reflects that this contention was not asserted before the trial court. “ ‘Each party has a duty to present his case in full at the hearing on the motion for summary judgment.’ ” Coker v. Culter, 208 Ga. App. 651, 652 (431 SE2d 443). We will not consider the validity of a trial court’s ruling based on a completely different legal issue than timely and specifically raised below, as such an appellate procedure would be contrary to the line of cases holding: “ ‘ “He must stand or fall upon the position taken in the trial court.” ’ ” Bell v. Sellers, 248 Ga. 424, 426 (1) (283 SE2d 877). Accordingly, the issue presented in this enumeration was not preserved for appellate review. Moreover, no citation is made of the pages of the transcript or record supporting appellant’s factual contentions that a genuine material issue exists as to the amount due and owing on the note. It is well-settled that an appellate court will not cull the record in search of error on behalf of one of the parties. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (8) (389 SE2d 251); accord Benefield v. Benefield, 224 Ga. 208, 209 (5) (160 SE2d 895).

2. We likewise find without merit appellant’s two remaining enumerations of error. Under the attendant circumstances, we find that the record does not raise any genuine issue of material fact that appellant acted in justifiable reliance on any representations allegedly made by appellee in support of its fraud defense and counterclaim.

Appellant made the following admissions in judicio (see generally Shansab v. Homart Dev. Co., 205 Ga. App. 448, 451 (4) (422 SE2d 305) and cases cited therein) in his deposition testimony: negotiations [241]*241as to contract price primarily were with Spencer (seller) and Adams who was in the real estate business and introduced seller to appellant; appellant’s first contact with appellee, either directly or by phone, was on the day of closing; appellant never personally had an appraisal done but had relied upon appellee (in view of statements contained in the original loan application) to obtain an appraisal which would have to be at least $900,000 to qualify for the loan; appellant never physically inspected the property before closing or looked at the leases of the apartment tenants before his loan was approved; appellant signed the note at closing; appellant arrived at the agreed $900,000 sales price (prior to closing) merely based on representations of property value made to him; appellant was relying on representations made to him by Mr. Adams, Mr. Spencer, and Mr. Wolf (apparently a real estate broker whom appellant concedes he had met only on a few rare occasions and whom he knew to be a secondary person in the transaction); appellant did not attempt to determine who kept the rental records for the building prior to closing; appellant did not inspect the property before he bought it; appellee made no representations to appellant about the condition of the property; appellant never saw the title report that was generated on the property and engaged no one to run an independent title examination on the property; appellant did not ask for a copy of the appraisal prior to closing and admits that at closing he merely examined the first page of a purported appraisal report, and (notwithstanding the amount of money involved) appellant attended closing alone. Additionally, appellant admitted in his deposition that he could not recall exactly what appellee had said to him at closing regarding the value of the property; but, although he cannot remember who said it, appellee represented that the property was worth a great deal more or would be worth a great deal more than it turned out to be. “[A]ny contradictory testimony or statements by appellant, as to these [admitted factual] matters, and for which no reasonable explanation for inconsistencies was given, would have to be construed against [him] pursuant to the rule of Prophecy [Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680)].” Shansab, supra at 451 (4).

Appellee CFBCC owed no legal duty to act as appellant’s legal or financial advisor; there existed no confidential relationship between appellant and appellee. Compare First Union Nat. Bank of Ga. v. Gurley, 208 Ga. App. 647 (1) (431 SE2d 379); Pruett v. Commercial Bank of Ga., 206 Ga. App. 103 (424 SE2d 284). The record reveals nothing more than an arms-length money lending transaction between the parties.

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Bluebook (online)
450 S.E.2d 267, 215 Ga. App. 239, 94 Fulton County D. Rep. 3613, 1994 Ga. App. LEXIS 1192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saffar-v-chrysler-first-business-credit-corp-gactapp-1994.