Miller v. Clabby

• Decision Date: 23 April 1986
• Docket Number: No. 71774,71774
• Citation: Miller v. Clabby, 178 Ga.App. 821, 344 S.E.2d 751 (Ga. App. 1986)
• Parties: MILLER et al. v. CLABBY et al.
• Court: Georgia Court of Appeals

Page 751

344 S.E.2d 751

178 Ga.App. 821

MILLER et al. v.CLABBY et al.

No. 71774.

Court of Appeals of Georgia.

April 23, 1986.

John R. Gaughen, Atlanta, for appellants.

James W. Friedewald, Meg Tysinger Hartin, Marietta, for appellees.

POPE, Judge.

On November 21, 1983plaintiffs/appellants purchased a residence and certain surrounding acreage in unincorporated Cobb County from defendants/appellees.On February 10, 1984plaintiffs brought this action alleging fraud and misrepresentation concerning the quality of a portion of the land surrounding the house, and seeking rescission of the sale, actual and punitive damages, and attorney fees.Following discovery defendants moved for and were granted summary judgment.

The allegation of fraud here relates to a fenced pasture area of the subject property; there is no allegation that the house is in any manner defective.Plaintiffs assert that upon inquiry of defendantsthey were told that the pasture was suitable for raising horses, and that within a week after plaintiffs had taken possession of the property, the pasture flooded twice during rainstorms.Although the flooding subsided within 24 hours after the storms, plaintiffs contend that the pasture is unsuitable for the raising of horses and that defendants defrauded them into thinking otherwise by concealing the pasture's tendency to flood during a heavy rain.

The pertinent evidence of record shows that defendants raised horses in the subject pasture for several years until their children lost interest in the animals.At the time of plaintiffs' first visit to the property, cattle were grazing in the pasture.Upon inquiry, defendants told plaintiffs that the pasture was suitable for raising horses and cited their experience in doing so.Plaintiffs were told that the pasture stayed dry and "there were no problems whatsoever," although the area beside the fenced pasture remained wet during most of the year due to the presence of underground springs.After entering into a contract of sale but prior to closing, plaintiffs walked the property and observed standing puddles of water in the pasture.Upon inquiry of defendants, they were told that the puddles were the result of a nearby drainage ditch being clogged.The ditch drained into a creek located just beyond the fenced pasture.Shortly after the plaintiffs moved in, most of the pasture was flooded on more than one occasion with surging water during a rainstorm.Mr. Miller talked with Dr. Clabby regarding the situation and was told by Clabby that he was well aware of the problem but because the property had been sold, he was not going to do anything about it.

The record also discloses that plaintiffs ordered and had at the closing a survey plat of the property which indicates that while the dwelling is not subject to flooding, "the property is partially located in an indentified flood hazard area."The record indicates that the plat was delivered by courier shortly after the formal closing had been completed.The parties reviewed the plat upon its arrival, but the discussion centered upon one of the boundary lines as drawn.Plaintiffs did not read the language regarding the flood hazard.Mrs. Miller explained that "we noticed that it looked drawn wrong, and that distracted everyone's attention from other factors...."Affidavits from federal and county officials also show that the subject property lies within an identified flood hazard area and that maps showing this were at all pertinent times a matter of public record in Cobb County.

" 'Misrepresentations are not actionable unless the complaining party was justified in relying thereon in the exercise of common prudence and diligence.And where the representation consists of general commendations or mere expressions of opinion, hope, expectation and the like ... the party to whom it is made is not justified in relying upon it and assuming it to be true; he is bound to make inquiry and examination for himself so as to ascertain the truth.'[Cit.]"Brown v. Mack Trucks, 111 Ga.App. 164, 167, 141 S.E.2d 208(1965);seePayne v. Smith, 20 Ga. 654(1856);Napier v. Strong, 19 Ga.App. 401(5), 91 S.E. 579(1917).We viewdefendants' assertions that the fenced pasture was "suitable" for raising horses as nothing more than mere expressions of opinion.See, e.g., Wrenn & Sons v. Truitt, 116 Ga. 70843 S.E. 52(1902);Collins v. Abel Holding Co., 89 Ga.App. 337, 344, 79 S.E.2d 436(1953).It follows that plaintiffs were not justified in relying thereon.

As to whether fraud was committed by defendants' alleged concealment of the pasture's tendency to flood during a heavy rain, " '[c]oncealment of material facts may amount to fraud when direct inquiry is made, and the truth evaded, or where the concealment is of intrinsic qualities of the article which the other party by the exercise of ordinary prudence and caution could not discover.'[Cit.]"Ga.-Car. Brick, etc., Co. v. Brown, 153 Ga.App. 747, 755, 266 S.E.2d 531(1980).Plaintiffs assert that the pasture's tendency to flood is just such an intrinsic quality of the property, one that they could not have...