Condon v. Kunse
| Decision Date | 08 June 1993 |
| Docket Number | No. A93A0143,A93A0143 |
| Citation | 208 Ga.App. 856,432 S.E.2d 266 |
| Parties | CONDON et al. v. KUNSE et al. |
| Court | Georgia Court of Appeals |
J.D. Rasnick, Waycross, for appellants.
Freeman & Hawkins, T. Ryan Mock, Jr., Atlanta, Baldwin & Mallory, A. Quillian Baldwin, Jr., La Grange, and Wood, Odom & Edge, Gus L. Wood, III, Newnan, for appellees.
On March 14, 1991, George and Eileen Condon purchased a farm in Harris County that was used primarily for raising cattle. In September 1991, after discovering that the fescue grass on the farm was infested with an endophyte fungus, the Condons commenced this action against Ralph and Narice Kunse as the sellers of the property, and Christine Hargett and Hargett Realty, Inc., as the real estate agent and realty company who represented the sellers, alleging fraud and violations of the Fair Business Practices Act. The trial court granted summary judgment for all the defendants, and this appeal followed.
The record shows that from 1979 until 1985, the Kunses operated their own cattle farm on the property, and from 1986 to 1991 leased the farm to others to raise their cattle. The farm's pastures were composed mostly of tall fescue grass, which is the predominant grazing grass in the United States. Over 90 percent of the fescue fields in the country are infected with an endophyte fungus which can cause various adverse effects upon cattle production, such as decreases in weight gain, losses in calf production, reduced milk production, fat necrosis, tails falling off, and hooves falling off. From 1931 until 1983, virtually all commercially available fescue seed was infected with the fungus. Fungus-free fescue became available in 1983, but most of the country's fescue fields remain heavily infected with the endophyte fungus.
The Kunses first began marketing the farm for sale in 1989, and entered an oral listing agreement with Christine Hargett and Hargett Realty, Inc. In March 1989, the Kunses entered into a contract to sell the farm to another couple who planned to use the property to raise championship horses. Prior to the closing of the sale, the couple had three samples of the fescue grass on the farm tested by the Fescue Diagnostic Laboratory at Auburn University, which revealed fungus infestation rates of 88 percent, 90 percent, and 100 percent. Despite the Kunses' assurances that they had never experienced any problems associated with the infected fescue, the buyers were concerned about the possible adverse effects on pregnant mares and demanded that the infected fescue be replaced. The Kunses refused to do so, and the contract ultimately was rescinded. None of the appellees revealed this report regarding the fescue infestation to the appellants prior to the sale.
Before the closing of the sale, the appellants did not have the farm's fescue grass tested, and did not inquire with any of the individuals who had leased the farm since 1986 to raise cattle or who had harvested the hay crops. Soon after the appellants took possession of the farm and placed a herd of cattle on it, several cows became ill. The appellants never had the cattle checked by a veterinarian, but two local cattle farmers advised them that the symptoms of the sick cattle were consistent with the side effects of infected fescue. Subsequently, the appellants commenced this action, alleging that the appellees had misrepresented the farm as suitable for cattle and hay production, and had concealed the known fungus infestation, which would have been a material fact in the appellants' decision to purchase the farm.
The appellants and the appellees both submitted affidavits from experts in conjunction with the motion for summary judgment filed by the appellees. The appellees' expert visited the property in the fall of 1991 and found the pastures to contain approximately 80 percent tall fescue, and 20 percent various other plant species. This expert was of the opinion that even if the fescue was 100 percent infected with the endophyte fungus, the farm was entirely suitable for raising cattle because of the other forage species present, and that the hay produced from the pastures would be suitable for commercial cattle feed.
On behalf of the appellants, one expert opined that the 88 to 100 percent infestation of the fescue on the property rendered the farm unsuitable for a profitable commercial cattle farm operation or horse production. The expert further stated that the only solution would be to re-establish all or a substantial part of the farm with fungus-free grasses. Another expert indicated that his inspection of the farm revealed that fescue composed approximately 90 percent of the two front pastures and approximately 70 percent of the rear pasture. This expert also considered the pastures to be unsuitable for commercial cattle and horse production without costly modifications.
1. OCGA § 51-6-2(a) provides that "[w]illful misrepresentation of a material fact, made to induce another to act, upon which such person acts to his injury, will give him a right of action." The appellees acknowledge that they presented the farm as suitable for cattle farming and growing hay, but deny any falsity to that representation. Pretermitting the question of whether a factual issue existed over the actual suitability of the farm for that purpose, we...
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