Williams v. Crawford

368 S.E.2d 337, 186 Ga. App. 643, 1988 Ga. App. LEXIS 450

• Court: Court of Appeals of Georgia
• Decided: March 18, 1988
• Docket: 75516
• Status: Published

Opinions

Banke, Presiding Judge.

The appellants sued the appellee to recover damages for the latter’s alleged fraud in connection with the sale to them of certain residential real estate. Originally, the real estate broker and agent who had represented the appellee seller in the transaction were also named as defendants, but the appellants later voluntarily dismissed them as parties to the action. This appeal is from the grant of the appellee’s motion for summary judgment.

The appellee’s alleged fraud consisted of his concealment of his knowledge that both the driveway to the residence and the existing well which served as its sole source of water were not actually located on the property but were instead located on an adjacent tract of land then owned by his father. It is conceded that no affirmative misrepresentation was made to the appellants that the well and driveway were located on the property being sold. However, the appellants maintain that the appellee knowingly allowed his real estate agents to identify the well as the source of water for the property and that, upon inquiry, the agents provided them with information regarding the depth of the well, without mentioning that it was not located on the property. There is also evidence that the appellants asked the appellee’s agents “about getting a survey” prior to the closing but were advised that “it wasn’t necessary, that it had been done in ‘79 for [the appellee] . . . [and] nothing had changed.” Although the appellants evidently did not ask to see the existing survey prior to the closing, it does not appear that the locations of the well and driveway were depicted on that survey. Held:

1. “ ‘Fraud may exist as much in intentional concealment of material facts, as in false statements in regard to facts. One is as fraudulent as the other, if it is used as a means of deceiving the opposite party.’ ” Friedman v. Goodman, 222 Ga. 613, 623 (151 SE2d 455) (1966), citing Jordan v. Harber, 172 Ga. 139 (4) (157 SE 652) (1931).

The evidence of record in this case would support an inference that the appellee, acting with full knowledge of the actual facts, permitted his agents to foster and nurture a misconception on the part of the appellants that the well, at least, was located on the property being sold to them. The appellants’ understanding in this regard was clearly material to the negotiations, as the value of the residence would obviously be affected significantly by whether it did or did not have its own water source. Consequently, we hold that the record does not demonstrate as a matter of law that no fraud occurred.

It is true, of course, that a jury might determine that the actual facts could and should have been discovered by the appellants in the exercise of due diligence. See generally U-Haul Co. of Western Ga. v. Dillard Paper Co., 169 Ga. App. 280, 282 (312 SE2d 618) (1983). All the appellants needed to do to protect themselves, after all, was to commission a survey of the property. However, we are not prepared to hold under the circumstances of this case that the appellants’ failure to commission a survey prior to closing constituted such a lack of diligence as would bar them as a matter of law from any recovery. “While a party must exercise reasonable diligence to protect himself against the fraud of another, he is not bound to exhaust all means at his command to ascertain the truth before relying upon the representations.” Dorsey v. Green, 202 Ga. 655, 659 (44 SE2d 377) (1947). Although a failure to investigate the true facts may constitute an absolute defense in cases where the alleged fraud consists merely of “ ‘general commendations or . . . expressions of opinion, hope, expectation and the like,’ ” Miller v. Clabby, 178 Ga. App. 821, 822 (344 SE2d 751) (1986) (emphasis omitted), where, as in this case, the alleged fraud concerns facts which are not open to dispute or interpretation, it has been held that the alleged wrongdoer should not be permitted to set up as an absolute defense that the plaintiff was negligent in relying upon his good faith and honesty. See Smith v. Holman, 117 Ga. App. 248, 249 (160 SE2d 533) (1968).

“On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.” Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973). We hold that the evidence of record does not establish the appellee’s entitlement to judgment as a matter of law and that the trial court consequently erred in granting his motion for summary judgment.

2. The appellants also enumerate as error the trial court’s denial of their motion to rejoin as party defendants the real estate broker and agent whom they had previously named as defendants in the case but had later voluntarily dismissed. This enumeration of error is without merit. Under OCGA § 9-11-21, the grant of denial of a motion to amend pleadings so as to add parties is subject to the sound discretion of the trial court. Clover Realty Co. v. Todd, 237 Ga. 821 (229 SE2d 649) (1976); Aircraft Radio Systems v. Von Schlegell, 168 Ga. App. 109, 111 (308 SE2d 211) (1983). Under the circumstances, we hold that no abuse of discretion has been shown.

Judgment reversed.

McMurray, P. J., Pope, Benham, and Beasley, JJ., concur. Deen, P. J., concurs and also concurs specially. Birdsong, C. J., Carley, and Sognier, JJ., concur in part and dissent in part.