Hanlon v. Thornton
| Decision Date | 24 August 1995 |
| Docket Number | No. A95A0926,A95A0926 |
| Citation | 462 S.E.2d 154,218 Ga.App. 500 |
| Parties | HANLON v. THORNTON et al. |
| Court | Georgia Court of Appeals |
Barksdale, Irwin, Talley & Sharp, David B. Irwin, Daniel S. Digby, Conyers, Barry G. Irwin, Athens, for appellant.
Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, Fortson, Bentley & Griffin, Robert N. Elkins, Athens, Graham & Graham, Felix P. Graham, Jr., Danielsville, for appellees.
Weissman, Nowak, Curry & Zaleon, Seth G. Weissman, Teresa L. Perrotta, Atlanta, amici curiae.
Ellsworth Hanlon sued the real estate agents and the sellers of a piece of real property in Clarke and Oglethorpe Counties. Hanlon alleged fraudulent misrepresentation and fraudulent concealment as to the presence of a landfill next to the property, the value of the property, and the condition of two trailers and a well that were on the property. Hanlon sought rescission of the sales contract, compensatory and punitive damages and attorney fees. The trial court granted defendants' motion for summary judgment. Hanlon appeals.
In early 1990, Hanlon, who lived in California at the time, called Steve Brannen, a real estate agent with Purvis & Associates, about buying some property on which to put a mobile home park. On February 14, 1990, Hanlon came to Georgia, and Brannen showed him several pieces of property, including the parcel of land which is the subject of this suit. The following day, Hanlon executed a contract with Luther and Evelyn Smith to purchase the property for $150,000. Hanlon then returned to California.
On March 14, 1990, Hanlon and his wife returned to Georgia to close on the property. On the morning before the closing, Hanlon inspected the mobile homes on the property and made a list of defective items. Hanlon also had the Northeast Health District Water Lab test the quality of the well water on the property. The water lab found that the wells and the water were satisfactory. Also prior to closing, Brannen advised Hanlon to talk to Jack Griffith of the Oglethorpe County Commission about his plans to put a mobile home park on the site. Hanlon drove past the Clarke County landfill on his way to meet with Griffith, although he says he did not realize it was a landfill at the time.
At the closing, Hanlon presented his list of problems and defects of the mobile homes. Hanlon was warned that Georgia is a "buyer beware" state and these considerations should be taken into account before making an offer on the property. Hanlon left the closing, talked with a friend for about an hour and then returned to the closing. Hanlon demanded and received a price concession from the sellers for the defective items.
After the closing, Hanlon and his wife moved to Georgia and into one of the mobile homes on the property. Hanlon claimed that he then learned that the property was less than the 36 acres that had been represented in a flier and that it was not suitable for a mobile home park. Hanlon also discovered that the property was adjacent to a landfill. Because of the landfill, Hanlon claimed he was forced to spend $10,000 for a new well because the original well kept drying up and produced discolored water which smelled of sulphur. Hanlon states that he also had to replace a furnace, a stove and a refrigerator in the mobile homes, as well as re-coat one of the roofs.
On December 3, 1993, Hanlon filed a complaint against Steve Brannen and his employer, Purvis & Associates, R.M. Thornton, the listing agent and his company, Smith-Boley-Brown and the sellers of the property, Luther and Evelyn Smith, alleging fraudulent misrepresentations and concealment. The trial court granted defendants' motions for summary judgment.
1. In enumerations of error 1 and 2, Hanlon claims that the trial court erred in finding there existed no genuine issues of material fact regarding his due diligence and justifiable reliance as to the sellers' misrepresentations regarding the landfill and the value of the property.
Hanlon claimed that Brannen told him there were no landfills in the area and also that the property had been appraised at $150,000. Hanlon also claimed that he believed that Brannen was representing him as well as the sellers of the property, because this dual agency was allowed under California law and Brannen told him that Georgia law was the same as California law.
The tort of fraud has five elements. These are: (1) false representation by a defendant; (2) scienter; (3) intention to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff. Crawford v. Williams, 258 Ga. 806, 375 S.E.2d 223 (1989). In order to survive a motion for summary judgment, plaintiff must show some evidence as to each element. Id. In order to prove the element of justifiable reliance, the plaintiff must show that he exercised his duty of due diligence. Hill v. Century 21 Max Stancil Realty, 187 Ga.App. 754, 756, 371 S.E.2d 217 (1988).
Hanlon cites Dorsey v. Green, 202 Ga. 655, 659, 44 S.E.2d 377 (1947), for the proposition that "[w]hile 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 on the representations." However, Dorsey involved actions of an executor of a will who had a fiduciary obligation which is lacking in this case. Dorsey, supra at 659, 44 S.E.2d 377. Moreover, "[t]he law in Georgia is well-settled that in the purchase and sale of real estate there is an underlying principle of law to the effect that one cannot be permitted to claim that he has been deceived by false representations about which he could have learned the truth of the matter and could have avoided damage." (Citations and punctuation omitted.) Lester v. Bird, 200 Ga.App. 335, 338, 408 S.E.2d 147 (1991).
Here, Hanlon has failed not only to show that he exercised due diligence, but also that he made any independent effort whatsoever to discover the existence of any landfills in the area or the true value of the property. See Crawford, supra at 807, 375 S.E.2d 223. "When the means of knowledge are at hand...
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