Brookshire v. Digby, A97A0320
| Decision Date | 05 February 1997 |
| Docket Number | No. A97A0320,A97A0320 |
| Citation | 224 Ga.App. 512,481 S.E.2d 250 |
| Parties | , 97 FCDR 453 BROOKSHIRE v. DIGBY. |
| Court | Georgia Court of Appeals |
Webb & Lindsey, Mark D. Oldenburg, Peachtree City, for appellant.
Talley & Sharp, Daniel S. Digby, Conyers, for appellee.
In 1973, appellant, Virgil L. Brookshire, built an unusually constructed house to live in until he could sell it; a for "For Sale" sign remained in the front yard. This was the second house that he had built. The house, located on Campground Road in Henry County, had a cathedral ceiling that ran the depth of the house with no ceiling joists; the roof was supported by the outside wall and an interior load-bearing wall that had knee bracing that ran from the top of the interior wall to the rafters, diagonally; except for the living room, where there was an angled suspended ceiling close to the rafters, the rest of the house had a suspended horizontal ceiling hanging by wires from the rafters with dead airspace above the drop ceiling, and the unusual framing could be detected only by placing an eight-foot stepladder under the drop ceiling, lifting a series of panels the length of the ceiling, and using a flashlight to inspect the closed airspace. The electrical fixtures in the hanging ceiling were also attached to the rafters by wires and not fixed to joists in the ceiling. Only one wall in the kitchen was covered by sheetrock; the rest of the exterior and interior walls were framed out with studs and covered by plywood paneling, not with sheetrock behind the paneling. When the house was built, appellant subcontracted all the work except the grading, insulation, paneling, and drop ceiling, which he did himself, but he generally supervised all the other work done.
Appellee, Marylee H. Digby, saw the for sale sign and visited the house in October 1985, when the appellant's daughter was home alone. At that time, she saw only the living room and kitchen. Appellee then talked to appellant several times by telephone about the house. Appellant told appellee that he was a home builder and that he had built the house for his family with good quality materials and workmanship, but did not reveal that this was only the second house that he had built and that it had an unusual framing and roof structure, which was concealed by the drop ceiling and that a layperson would not recognize as different. Appellee relied upon the representation that appellant was a home builder, that he did good workmanship using quality materials, and that the house had been built for appellant's family. Appellee looked at the house three times prior to signing the contract to purchase the house. Appellant urged appellee to look at a current home under construction to see the framing and the type of work, quality of materials, and workmanship that he represented was present in his home, which appellee did; the house that appellant was building had ceiling joists and sheetrock ceilings, as well as sheetrock walls, unlike the house that was sold to appellee. Thus, the house appellee was urged to view under construction was not in fact representative, but such differences were not readily observable to the untrained observer. Appellant never told appellee that the Campground Road house had no ceiling joists because she never asked. Appellant never told appellee that the house had no ceiling above the suspended ceiling because she never asked. However, he did tell her that the suspended ceiling was used because it provided better insulation. Appellee could not see into the space above the drop ceiling unless she used a ladder, lifted a tile, and used a light, because there was no pull-down stairs and the area was dark above the drop ceiling. Appellant referred to the area above the drop ceiling as attic space, and he knew that appellee thought there was an attic from her comment about light from the top of the closet.
Appellee testified that she had been told that there were existing wiring and plumbing outlets in the basement for a washer-dryer, because appellant had a washer-dryer there previously, but when she moved into the house, the connections were not present. Appellant's answer was that the connections had been there but had been moved and could be reinstalled. She had been told that there was a gas space heater operating in the basement, but no line was connected to the LP gas tank. Appellee asked about the average monthly cost of heating and air conditioning and was shown a monthly bill for $125, which was represented to be the monthly average bill; the average heating bill actually ran around $300 each month. She asked about the well electric pump and was told that it had been replaced two years previously; after the first few months of appellee's occupancy, the pump went out and had to be replaced because it had worn out and was much older than two years. Appellant's explanation was that the pump had gone out while he had been away on a hunting trip and he had been charged for the replacement of the pump by the plumbers that his wife called. Appellee asked about termites and termite treatment, and appellant told her that there had been no problems, that he had treated the ground for termites, and that there was no termite damage. The spring that appellee moved into the house the termites swarmed, and a termite inspector found old termite damage. Appellant testified that they had never had problems with termites and that he had treated the ground for termites just as he had been instructed. Appellee asked if there was any water in the basement and was told that there never had been a problem; upon moving in, during the first really wet season, the basement flooded and continued to flood. Appellant testified that there had been a problem with flooding in the past, but that new gutters and the poring of the patio had stopped the problem; when the problem existed, the leaking water had been minor; on cross-examination, appellant was impeached by his prior deposition testimony that the basement had flooded.
Appellee testified about a number of problems that she found upon moving into the house: drain lines that drained slowly because there was insufficient fall in the lines; plumbing leaks; movement in the walls and windows; no sheetrock walls behind paneling; washing machine drainage into the well. Appellant and his wife denied any knowledge of any problems in such areas. After appellee moved into the house, the insulation over the living room pulled loose, causing the suspended ceiling to collapse in the living room; the bathroom ceiling also collapsed bringing down the overhead light and exhaust fan; the Florida room ceiling collapsed twice. The overhead lighting secured by wire to the rafters collapsed. Appellee asked appellant if there were any defects in the house, and appellant told her no. When the well pump that was alleged to be only two years old failed, she called the plumber that appellant told her had replaced it, and she learned that he had not been called upon to work on the pump at all in the past by appellant or his wife.
Based upon an action in fraud, appellee obtained a verdict for $25,000 against appellant. Appellant's motion for directed verdict was denied by the trial court.
Appellant's sole enumeration of error is that the trial court erred in denying his motion for directed verdict.
Appellant made several representations to appellee which were not true, which were designed to mislead appellee, which she relied upon, which she could not discover in the exercise of reasonable care, and which she was damaged proximately to wit: the statement that the basement never had leaked; that the house had no defects; that there were washer-dryer connections in the basement; that there was an operating gas space heater in the basement; that the well pump had been replaced by a particular plumber within the last two years; and that there existed an "attic with floor joists" above the drop ceiling. All of these were disputed issues of fact as to credibility and as to whether appellant made such statements or not. All of the above fall into either positive misstatement of fact or active concealment of fact. " Lively v. Garnick, 160 Ga.App. 591, 592(1), 287 S.E.2d 553 (1981).
In the case sub judice, appellant denied flooding in his basement until impeached by his prior deposition. Appellant sent appellee to look at a different framing structure in a house that he was building, but represented to her that it was similar to his house; the house under construction had ceiling joists and an attic, which assisted in deceiving her that there were ceiling joists and an attic space above the drop ceiling in his house. The well pump was old and had not been replaced by the named plumber two years...
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