Leslie, Inc. v. Solomon
| Decision Date | 25 February 1977 |
| Docket Number | No. 2,No. 53311,53311,2 |
| Citation | 234 S.E.2d 104,141 Ga.App. 673 |
| Parties | LESLIE, INC., et al. v. Henry SOLOMON, Jr., et al |
| Court | Georgia Court of Appeals |
Alford Wall, Charles B. Rice, Roswell, for appellants.
Gilbert & Blum, Fred Gilbert, Atlanta, M. Kenneth Doss, Alpharetta, for appellees.
Mr. and Mrs. Solomon brought an action in 6 counts against the appellant home improvement company and its agents.
Count 1 sought damages for fraud, by inducing the plaintiffs to enter into a contract for home improvements and execute a security deed to the defendants (which the plaintiffs allegedly did not know would enable the defendants to foreclose on their home), then failing to complete the contract and foreclosing on the security deed.
Count 2 sought the equitable relief of cancellation of the security deed and voiding of the foreclosure sale on account of fraud.
Count 3 sought the equitable relief of setting aside the sale, voiding the deed to the property, and returning the property to the plaintiffs on the ground of lack of official notice of the pending sale.
Count 4 prayed for damages for breach of contract by inadequate workmanship in partially completing the performance under the contract and leaving the premises in a damaged condition.
Count 5 sought damages in the amount of $125 monthly payments which the plaintiffs had made to the defendants to retain possession of the property because of the defendants' false and fraudulent representations that they held title to the plaintiffs' property and threats to dispossess the plaintiffs, less any sums paid over to the first mortgage holder by the defendants.
Count 6 was for damages for breach of warranty for the defendants' inadequate workmanship.
Upon the trial, verdict and judgment were entered against the defendants for $13,000 general and $1,000 punitive, or exemplary, damages. The defendants' appeal to the Supreme Court of Georgia was transferred to this court.
1. The appellants enumerate as error the trial judge's denial of their motion for judgment n. o. v. or a new trial. They contend that the appellees' claims are barred by the statute of limitation.
Unless the defense of the statute of limitation is pleaded affirmatively by a defendant, it is waived. Young v. Bozeman, 229 Ga. 195, 204, 190 S.E.2d 523 (1972). The affirmative defense may be raised by amendment. Security Ins. Co. of Hartford v. Gill, 141 Ga.App. 324, 233 S.E.2d 278 (1977). However, after the entry of a pre-trial order, "(a) party may amend his pleading only by leave of court or by written consent of the adverse party." CPA § 15(a) (). In the instant case, the appellants moved to amend their answer so as to plead the statute of limitation long after the entry of numerous pre-trial orders. The appellees did not consent to the amendment, and, although the judge failed to rule on the appellants' motion to amend, he would have erred had he allowed it.
In considering belated motions to amend pleadings, the trial judge must freely allow amendment "when justice so requires." CPA § 15(a), supra. In exercising this discretion, the judge should balance possible prejudice to the nonmoving party with the moving party's reason for delay.
The appellees' complaint in the case sub judice was filed in 1970. Almost six years later, the case went to trial. During those six years, the appellants' discovery from the appellees included requests for admission, interrogatories, and depositions. Yet, the appellants claim that not until the trial occurred did they discover the date at which the statute would have begun to run.
When considering whether "justice so requires" the appellants' amendment, the trial judge would have to take into consideration the six-year period for discovery and the appellants' extensive discovery from the appellees. And, the trial judge would have to consider that the testimony which allegedly caused the appellants to discover their statute-of-limitation defense was not novel, but was substantially repetitive of the deposition testimony. Thus, the appellants' delay in asserting their defense was inexcusably long, and the trial judge would have abused his discretion to allow the amendment. This enumeration of error is without merit.
2. The appellants contend that the appellees were their tenants under an alleged agreement whereby the appellees were permitted to maintain possession of their home, after its purchase by the appellants at a foreclosure sale, by making a series of installment payments to the appellants (which payments appellants contend were rent). The appellants further contend that the appellees, as their tenants, are estopped to dispute the appellants' title by the provisions of Code § 61-107, viz.: "The tenant may not dispute his landlord's title nor attorn to another claimant while in possession."
"The rule is well settled that where a vendee acquires possession of land under a contract to purchase, he can not, while he remains in possession, dispute the title of his vendor . . ." Yerby v. Gilham, 147 Ga. 342, 343, 94 S.E. 246, 246 (1917). In the present case, however, the appellees were already in possession of the land, claiming it as their own, claiming non est factum as to the security deed upon which the appellants' asserted possession as landlord was based. "No reason appears why one already in possession of land, and claiming it as his own, may not fortify his title, or buy his peace of adverse claimants, as often as they may appear, and without being estopped to deny the title of such subsequent vendors." Yerby v. Gilham, supra, p. 343, 94 S.E., p. 246 and cits.
The jury's finding for the plaintiffs meant that the parties were not in a landlord-tenant relationship and that the payments made were not rent payments, under the trial judge's charge, "if you find the relationship of landlord and tenant to have existed, then you would return the verdict for the defendant because the claim of the plaintiffs as to the fraudulent conveyance would no longer lie." Enumerated error 2 is...
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Shedd v. Goldsmith Chevrolet
...the entry of a pretrial order, amendments should be liberally granted by the court, as justice requires. Leslie, Inc. v. Solomon, 141 Ga.App. 673, 674(1), 234 S.E.2d 104 (1977). Nevertheless, in making such determination the trial court acts within its discretionary powers. Cooper v. Rosser......
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...of court, the responsive pleadings were properly amended to reflect the affirmative defense of accord and satisfaction. Leslie v. Solomon, 141 Ga.App. 673, 234 S.E.2d 104; Security Ins. Co. v. Gill, 141 Ga.App. 324, 233 S.E.2d 278. See, Gauker v. Eubanks, 230 Ga. 893(4), 199 S.E.2d 771. Fur......
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Rowe v. Akin & Flanders, Inc.
...trial court must balance possible unfair prejudice to the nonmoving party with the movant's reasons for delay. Leslie, Inc. v. Solomon, 141 Ga.App. 673, 674(1), 234 S.E.2d 104. But mere delay in seeking leave to amend is not a sufficient reason for its denial. MCG Dev. Corp. v. Bick Realty ......
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Holt v. Rickett
...judgment. (Ga.L.1966, pp. 609, 627; 1968, pp. 1104, 1106; 1972, pp. 689, 694) (Code Ann. § 81A-115(b)). Leslie, Inc. v. Solomon, 141 Ga.App. 673, 676(5), 234 S.E.2d 104 (1977). Thus under either Code Ann. § 92-125 or § 81A-115(b), it was proper for Mrs. Rickett to pay the taxes and penaltie......