Bryson v. Button Gwinnett Sav. Bank, s. A92A0850

• Decision Date: 02 October 1992
• Docket Number: Nos. A92A0850,A92A0851,s. A92A0850
• Parties: BRYSON et al. v. BUTTON GWINNETT SAVINGS BANK et al.; BUTTON GWINNETT SAVINGS BANK et al. v. BRYSON et al.
• Court: Georgia Court of Appeals

Page 691

423 S.E.2d 691

205 Ga.App. 668

BRYSON et al. v. BUTTON GWINNETT SAVINGS BANK et al.;

BUTTON GWINNETT SAVINGS BANK et al. v. BRYSON et al.

Nos. A92A0850, A92A0851.

Court of Appeals of Georgia.

Oct. 2, 1992.

Gary C. Harris, Atlanta, for appellants.

Schreeder, Wheeler & Flint, Timothy C. Batten, Atlanta, for appellees.

JOHNSON, Judge.

Jerry W. and Barbara A. Bryson brought suit against the builders, real estate agency and agent, builders' lender and its loan officer in connection with the purchase of a newly built house. The Brysons alleged that the builders breached the terms of the sales contract because the house was not constructed and landscaped in a skillful and workmanlike manner. They also alleged that the real estate agent, and the bank's loan officer fraudulently represented that certain construction and landscaping would be completed after the closing and that sufficient funds were available from the closing to complete the work. The Brysons also sought punitive damages and attorney fees. The real estate agency and its agent entered into a settlement agreement with plaintiffs and were dismissed prior to trial. A jury trial was held to quantify unliquidated damages awarded in a default judgment entered against one of the builders (the other builder-defendant having filed bankruptcy) and on the remaining claims against the bank and Michael Engram, its loan officer. The jury returned a verdict in favor of the bank and Engram. The Brysons' motion for a new trial was denied, and this appeal follows. The bank filed a cross appeal raising as error the denial of its motions for a directed verdict and to dismiss.

Case No. A92A0850

1. The Brysons allege that the trial court erred in refusing to give certain requested charges, specifically numbers 9, 11, 21, 22, 23, 27, 28 and 29. The Brysons asserted a fraud claim against the bank and Engram. As to the court's refusal to give requested charges 9 and 21, the Brysons alleged that Engram knowingly misrepresented projected costs to finish the house, that they relied on Engram's estimate in deciding to go forward with their purchase of the home and that they were thereby damaged. They further assert that Engram failed to fully apprise them of the builders' financial situation. The court refused the requested charges because those charges define the elements of fraud in terms of equity (OCGA Title 23) rather than in tort. The charges suggest that the bank withheld information from the Brysons which it had an obligation to disclose. The court correctly delineated the obligations of the bank to the Brysons in charging: "It is not the type of relation which would permit the borrower to rely on representations expressed by the lender without prosecuting their own inquiries." See Pardue v. Bankers First Fed. S. & L. Assn., 175 Ga.App. 814, 815, 334 S.E.2d 926 (1985).

Similarly proposed charge numbers 11, 22, 23 and 27 all related to the issue of the obligation of the plaintiff to conduct an independent investigation regarding the veracity of the information or lack of information transmitted by the defendant. The court gave a full and accurate charge on the elements of the tort of fraud. "A requested charge is properly refused when the principle involved is substantially covered in the court's general charge." (Punctuation and citations omitted.) Mattox v. MARTA, 200 Ga.App. 697 699(2), 409 S.E.2d 267 (1991). Therefore the court did not err in refusing to give these charges.

No argument was articulated or authority cited with regard to asserted error in the trial court's refusal to give requests to charge numbers 28 and 29. Therefore, assertions of error with regard to these requests to charge are deemed abandoned pursuant to Court of Appeals Rule 15(c)(2).

2. The Brysons further allege that the trial court erred in giving the bank's requested charge numbers 12, 17, 19 and 20. No objection was made during the charge conference with regard to charge number 12. This charge was a correct statement of law. There not being any substantial error which would require consideration by this court in the absence of objection, we deem objection to that charge waived and will not consider it for the first time on appeal. OCGA § 5-5-24; Hunter v. Batton, 160 Ga.App. 849(1), 288 S.E.2d 244 (1982); Pool Markets South v. Moore, 189 Ga.App. 48(1), 374 S.E.2d 831 (1988).

The bank's requested charge numbers 17, 19 and 20 are variations on the principle of law which holds that a lender is not an insurer of the work of the contractor. This is a correct statement of the law. See Harden v. Akridge, 193 Ga.App. 736, 389 S.E.2d 6 (1989); First Fed. Savings, etc., v. Fretthold, 195 Ga.App. 482, 394 S.E.2d 128 (1990). In this trial, the jury was also being asked to assess damages against the builder. The trial court correctly gave these charges in order to avoid confusion concerning which damages were attributable to the various parties. We find no error in these charges being given to the jury.

3. In their third enumeration of error, the Brysons contend that the charge to the jury, when considered as a whole, made a jury verdict in their favor impossible. " '(T)he isolation of segments of the overall charge to the jury and the individual dissection of such parts is not grounds for reversal....' [Cit.]" Chesser v. Wallace, 200 Ga.App. 567, 568(2), 408 S.E.2d 814 (1991). In the instant case, we have reviewed the charge in its entirety and find that it fully and correctly instructed the jury on the elements of fraud asserted...