Lively v. Garnick, 62236

• Decision Date: 10 September 1981
• Docket Number: No. 62236,62236
• Citation: 287 S.E.2d 553,160 Ga.App. 591
• Parties: LIVELY et al. v. GARNICK et al.
• Court: Georgia Court of Appeals

Page 553

287 S.E.2d 553

160 Ga.App. 591

LIVELY et al. v. GARNICK et al.

No. 62236.

Court of Appeals of Georgia.

Sept. 10, 1981.

Rehearing Denied Dec. 4, 1981.

Certiorari Denied Feb. 10, 1982.

Isaac S. Jolles, Augusta, for appellants.

Jay M. Sawilowsky, Augusta, for appellees.

CARLEY, Judge.

On June 27, 1974, plaintiff-appellees entered into a contract with defendant-appellants to purchase a house which, at the time of the execution of the contract, was partially built. Appellants were to complete construction of the house in accordance with certain stipulations set forth in the contract for sale of realty. At the time scheduled for the closing of the sale some of the special stipulations had not been met. However, both parties were desirous of closing the transaction and it was agreed that the sum of $1,000 would be held in escrow and paid to appellants upon completion of the improvements in accordance with the special stipulations of the sales contract. This agreement was incorporated into the closing statement and the sale was consummated.

Subsequently appellees instituted the instant action to recover damages and predicated their claim upon appellant's alleged fraud and deceit in connection with the representations and promises made at the closing and also with respect to certain alleged latent defects in the construction of the house discovered after the sale. Appellants' answer to the complaint denied the material allegations thereof and the case proceeded to trial. Final judgment was entered against appellants on a jury verdict in appellees' favor. Appellants appeal, enumerating as error several of the trial court's evidentiary rulings but the primary contention being that the evidence adduced at trial did not, as a matter of law, support a finding of fraud.

1. It is important at the outset to establish as the premise for resolving the issue of the general grounds that the action against appellants was not based upon negligent construction, breach of warranty or breach of contract. Appellees alleged that they were defrauded by appellants' failure to disclose certain defects in the property they were purchasing. Compare, e.g. Chitty v. Horne-Wilson, Inc., 92 Ga.App. 716, 89 S.E.2d 816 (1955). Fraud, unlike negligence, breach of warranty or breach of contract, is premised upon the "actual moral guilt" of the defrauding party. Dundee Land Co. v. Simmons, 204 Ga. 248, 249(1), 49 S.E.2d 488 (1949). "Mere concealment of [a material fact], unless done in such a manner as to deceive and mislead, will not support an action. In all cases of deceit, knowledge of the falsehood constitutes an essential element." Code Ann. § 105-302. "The element of intention to deceive is as necessary in an action based on concealment as one based on wilful misrepresentation. [Cit.] An action for fraud and deceit must [be based upon a] representation (or ... concealment) [which] was made with the intention and purpose of deceiving the opposite party ([Cit.]), and for the purpose of injuring him. [Cit.]" Camp Realty Co. v. Jennings, 77 Ga.App. 149, 151, 47 S.E.2d 917 (1948). "In all cases of deceit, knowledge of the falsehood constitutes an essential element." Cooley v. King & Co., 113 Ga. 1163(2), 39 S.E. 486 (1901). " 'In order to recover in an action of deceit, it is indispensable that the scienter be ... proved.' " Leatherwood v. Boomershine Motors, 53 Ga.App. 592, 593, 186 S.E. 897 (1936).

Having thus established the applicable principles of law in the light of which the evidence in the instant case is to be viewed, we turn to the question of whether appellees proved that they were defrauded by appellants' concealment of latent defects in the construction of the house. "[I]n cases of passive concealment by the seller of defective realty, we find there to be an exception to the rule of caveat emptor ... That exception places upon the seller a duty to disclose in situations where he or she has special knowledge not apparent to the buyer and is aware that the buyer is acting under a misapprehension as to facts which would be important to the buyer and would probably affect [his] decision. [Cits.]" Wilhite v. Mays, 140 Ga.App. 816, 818, 232 S.E.2d 141 (1976). This means, of course, that the buyer must prove that the vendor's concealment of the defect was an act of fraud and deceit, including evidence that the defect "could [not] have been discovered by the buyer by the exercise of due diligence ... [and that the] seller was ... aware of the problems and did not disclose them ..." Wilhite v. Mays, 239 Ga. 31, 32, 235 S.E.2d 532 (1977).

Most of the alleged defects in the house, such as smeared grout on the tile, nails showing in the baseboard and mismatched trim on the exterior, were "discoverable by the purchasers' exercise of reasonable diligence to investigate and inspect" and cannot serve as the basis for holding appellants liable in fraud for "concealing" them. P. B. R. Enterprises v. Perren, 243 Ga. 280, 283, 253 S.E.2d 765 (1979). These defects would in all probability support a finding of negligent construction, breach of warranty or breach of contract, but not fraud. There is, however, evidence in the instant case which indisputably demonstrates that the house purchased by appellees contained defects which were not discoverable until after they had moved into it. Indeed, the evidence demonstrates that there were defects in the original construction of the house, such as a faulty air conditioner, a sagging carport roof and leaky chimney, which could not have become apparent until some time after it was occupied as a dwelling. We have carefully and thoroughly reviewed the transcript to discover if there was any evidence whatsoever from which a jury could find that appellants knew at the time they sold the house that it was "defective" in the ways which ultimately became apparent to appellees. We find no such evidence of appellants' "moral guilt" with regard to these defects in the house. The most the evidence shows is that appellants were negligent builders or in breach of warranty or of contract. While it is clear that the house contained defects which were likely the result of negligent construction or failure to conform to contract or warranty specifications, there is no evidence that at the time appellants sold the house they had "special knowledge" of these defects and yet concealed them from appellees. Compare, e.g., Wilhite v. Mays, 239 Ga. 31, 235 S.E.2d 532, supra; Holman v. Ruesken, 246 Ga. 557, 272 S.E.2d 292 (1980).

Appellees urge that the jury was entitled to infer from the fact that appellants built the house that appellants had actual knowledge that it would prove defective. It is clear, however, that in a fraudulent concealment action the allegedly defrauded party must prove that the alleged defrauder had actual, not merely constructive, knowledge of the fact concealed. See Hill v. Hicks, 44 Ga.App. 817, 163 S.E. 253 (1931); Whaley v. Holt, 110 Ga.App. 228, 138 S.E.2d 196 (1964); Randall v. Smith, 136 Ga.App. 823, 222 S.E.2d 664 (1975); Derryberry v. Robinson, 154 Ga.App. 694, 269 S.E.2d 525 (1980). Obviously this is true because if there is no actual knowledge of the defect on the part of the silent party there can be no concealment of it with the intent and for the purpose of deceiving the opposite party. An assertion that one "should have known" of a defect alleges "at most a constructive knowledge". Whaley, 110 Ga.App. at 230, 138 S.E.2d 196, supra. There must be some evidence of the silent party's actual knowledge that the defect exists at the time of the sale from which his "moral guilt" in concealing it can be inferred. See generally Whiten v. Orr Const. Co., 109 Ga.App. 267, 136 S.E.2d 136 (1964); Tison v. Eskew, 114 Ga.App. 550, 151 S.E.2d 901 (1966); Windsor Forest Inc. v. Rocker, 115 Ga.App. 317, 154 S.E.2d 627 (1967) (laying brickwork in freezing weather with knowledge that it would result in "bad bonding"); Batey v. Stone, 127 Ga.App. 81, 192 S.E.2d 528 (1972) (aware of defective waterproofing which was actively concealed); Thibadeau Co. v. McMillan, 132 Ga.App. 842, 209 S.E.2d 236 (1974) (builder aware of defective mortar); Allred v. Dobbs, 137 Ga.App. 227, 223 S.E.2d 265 (1976) (seller-builder aware of termite infestation and had actively concealed it). But to hold that evidence merely that a builder constructed a house which subsequently develops defects presents a jury question as to his "moral guilt" for fraud without some evidence that he had actual knowledge of the defect at the time of sale would mean that the legal theories of res ipsa loquitur or strict liability are applicable to a suit for the tort of fraud and deceit. In our opinion a builder may negligently construct a house or be in breach of his contract or of warranty and yet be free of the moral guilt of fraud. Accordingly we hold that it is not a "reasonable or logical" inference from the mere fact that a builder-seller has constructed a house subsequently discovered to be "defective" that he knowingly concealed those defects and thereby deceived and defrauded the purchaser. See Windjammer Associates v. Hodge, 246 Ga. 85, 269 S.E.2d 1 (1980).

The evidence in the instant case demonstrates that the house sold by appellants contained "defects" which subsequent to the sale became apparent to appellees. However, there is likewise no evidence that these defects were apparent to appellants at any time before they were discovered by appellees. There is no evidence whatsoever that appellants actively pursued a known course of "defective" construction with knowledge of that fact or made any effort to actively conceal defects known to them nor any other evidence from which it could be inferred that appellants defrauded the appellees in the sale of the house. See e.g., Jim Walter Corp. v. Ward, 150 Ga.App. 484, 490(4), 258 S.E.2d 159 (1979), revd on the grounds, 245 Ga. 355, 265 S.E.2d 7 (1980). Absent some evidence of...