Gary v. E. Frank Miller Const. Co., Inc., No. A92A2257
| Court | Georgia Court of Appeals |
| Writing for the Court | COOPER; McMURRAY, P.J., and BLACKBURN |
| Citation | 208 Ga.App. 73,430 S.E.2d 182 |
| Docket Number | No. A92A2257 |
| Decision Date | 19 March 1993 |
| Parties | GARY v. E. FRANK MILLER CONSTRUCTION COMPANY, INC. |
Page 182
v.
E. FRANK MILLER CONSTRUCTION COMPANY, INC.
Page 183
[208 Ga.App. 77] Lawrence E. Burke, Marietta, for appellant.
McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Linda S. Finley, Atlanta, for appellee.
[208 Ga.App. 73] COOPER, Judge.
Appellant Patricia S. Gary and her husband entered into a contract with appellee under which appellee was to build a house for the Garys. During the construction, problems arose between the parties. The Garys had concerns regarding appellee's workmanship, and appellee contended that there were insufficient funds in the construction bank account each month from which appellee drew its monthly compensation. As a result, they mutually agreed to rescind the contract and executed a "Contract of Rescission and Release" under which the contract was rescinded. The Garys agreed to pay $2,200 to appellee for expenses incurred in connection with the construction, and appellee released the Garys from liability arising from the construction. The Garys tendered a check to appellee for $2,200 but shortly thereafter stopped payment on the check. Appellee then filed [208 Ga.App. 74] this action for breach of contract based on the Garys' failure to pay the sum of $2,200 and for fraud and conversion based on the dishonored check. The Garys answered the complaint and asserted a counterclaim for fraud in which they alleged that during the negotiations appellee made misrepresentations regarding the quality of work already completed and the status of certain outstanding obligations related to the construction, specifically, that the framing, cornice and siding work had been completed in a workmanlike manner; that the brick on the driveway wall was properly laid with wall ties; that all roofing work and corrections thereto had been completed in a workmanlike manner; and that appellee had previously secured a sufficient quantity of bricks to complete the house. The Garys alleged that they relied on these misrepresentations in arriving at their decision to rescind the contract and that certain defects were of such a nature as to constitute latent defects, not reasonably discoverable. The case proceeded to trial, and at the close of the evidence, appellee moved for directed verdicts on its complaint and the Garys' counterclaim. The trial court granted directed verdicts on appellee's complaint on the ground that the Contract for Rescission and Release constituted an accord and satisfaction and on the counterclaim, awarding appellee $2,200 plus interest. The court submitted the determination of attorney fees and punitive damages to the jury which returned a verdict in favor of appellee for $10,791.90 in attorney fees and $3,561.76 in punitive damages. This appeal followed. Because Mr. Gary died prior to the trial, Mrs. Gary is the sole appellant.
1. Appellant enumerates as error the improper admission of certain materialman's liens which had been filed against appellant by various subcontractors. Appellant contends the testimony regarding the liens was irrelevant and prejudicial and that appellee failed to establish a proper foundation for the admission of the liens. "The issue as to the relevancy and materiality of evidence is for the trial court. Thus, admissibility of evidence is a matter which rests largely within the sound discretion of the trial court." (Citations and punctuation omitted.) Armech Svc. Co. v. Rose Elec. Co., 192 Ga.App. 829, 830(1), 386 S.E.2d 709 (1989). The general premise of appellee's case was that the Garys made several costly changes to the original plans during construction which resulted in the...
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Golden Peanut Co. v. Bass, A00A2362.
...Golden was entitled to a directed verdict or j.n.o.v. on the defense of accord and satisfaction. See Gary v. E. Frank Miller Constr. Co., 208 Ga.App. 73, 75(2), 430 S.E.2d 182 MILLER, Judge, concurring specially. I concur fully with the result reached by the majority, but write specially wi......
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Whitley v. Gwinnett County, A95A2136
...evidence is reviewed for abuse of the trial court's discretion. Id. at 183, 460 S.E.2d 812. See also Gary v. E. Frank Miller Constr. Co., 208 Ga.App. 73, 74(1), 430 S.E.2d 182 The trial court excluded the evidence as immaterial because Officer Dewitt denied any knowledge of the dangers of t......
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Moore v. Mellars, A92A2179
...179 430 S.E.2d 179 208 Ga.App. 69 MOORE v. MELLARS. No. A92A2179. Court of Appeals of Georgia. March 19, 1993. [208 Ga.App. 73] Jerome C. Ware, Atlanta, for Harper, Waldon & Craig, Thomas D. Harper, Atlanta, for appellee. [208 Ga.App. 69] COOPER, Judge. On December 13, 1989, Agnes Moore was......
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Tyson v. McPhail Properties, Inc., A96A1528
...Tyson offered no evidence of how he was damaged by McPhail's alleged misrepresentation. See Gary v. E. Frank Miller Constr. Co., 208 Ga.App. 73, 75, 430 S.E.2d 182 (1993) (damage is an element necessary to establish fraud). The only time Tyson sought McPhail's approval for sale of the prope......
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Golden Peanut Co. v. Bass, A00A2362.
...Golden was entitled to a directed verdict or j.n.o.v. on the defense of accord and satisfaction. See Gary v. E. Frank Miller Constr. Co., 208 Ga.App. 73, 75(2), 430 S.E.2d 182 MILLER, Judge, concurring specially. I concur fully with the result reached by the majority, but write specially wi......
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Whitley v. Gwinnett County, A95A2136
...evidence is reviewed for abuse of the trial court's discretion. Id. at 183, 460 S.E.2d 812. See also Gary v. E. Frank Miller Constr. Co., 208 Ga.App. 73, 74(1), 430 S.E.2d 182 The trial court excluded the evidence as immaterial because Officer Dewitt denied any knowledge of the dangers of t......
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Moore v. Mellars, A92A2179
...179 430 S.E.2d 179 208 Ga.App. 69 MOORE v. MELLARS. No. A92A2179. Court of Appeals of Georgia. March 19, 1993. [208 Ga.App. 73] Jerome C. Ware, Atlanta, for Harper, Waldon & Craig, Thomas D. Harper, Atlanta, for appellee. [208 Ga.App. 69] COOPER, Judge. On December 13, 1989, Agnes Moore was......
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Tyson v. McPhail Properties, Inc., A96A1528
...Tyson offered no evidence of how he was damaged by McPhail's alleged misrepresentation. See Gary v. E. Frank Miller Constr. Co., 208 Ga.App. 73, 75, 430 S.E.2d 182 (1993) (damage is an element necessary to establish fraud). The only time Tyson sought McPhail's approval for sale of the prope......