Ramey v. Leisure, Ltd.

• Citation: 421 S.E.2d 555,205 Ga.App. 128
• Decision Date: 09 July 1992
• Docket Number: No. A92A0338,A92A0338
• Parties: RAMEY v. LEISURE, LTD.
• Court: United States Court of Appeals (Georgia)

Page 555

421 S.E.2d 555 205 Ga.App. 128 RAMEY
v.
LEISURE, LTD. No. A92A0338. Court of Appeals of Georgia. July 9, 1992.
Reconsideration Denied July 23, 1992.
Certiorari Denied Oct. 2, 1992.

Page 556

[205 Ga.App. 133] John M. Brown, Clayton, for appellant.

Forrester & Brim, James E. Brim III, Gainesville, for appellee.

COOPER, Judge.

Appellee, a limited partnership, asserted claims for negligent construction and fraud against appellant arising from the construction of a house it owned in which one of its general partners, Barney Brannon ("Brannon"), lived. A jury returned a verdict for appellee, and appellant appeals, raising four enumerations of error.

The evidence adduced at trial reveals that appellant obtained a building permit for the construction of a house in Sky Valley, Georgia. Appellant's sons actually owned the real estate, and appellant supervised the building. Inspection records indicate that the foundation footing trenches were poured with concrete before an inspection was made by the building inspector as required by the City of Sky Valley building code. The footing work was performed by a subcontractor, but appellant testified that he was "practically sure" that he saw the footing trenches before the concrete was poured. At its completion on October 17, 1980, the house was sold to the Sky Valley Corporation, which then sold it to the Summerford family. In 1983, appellee purchased the house from the Summerfords. Prior to the purchase, Brannon inspected the house and observed no problem with the footing. On or about August 28, 1988, however, Brannon attempted to replace a storm door and discovered that the door frame was deformed. He [205 Ga.App. 129] had installed a storm door in the same location in 1983 or 1984 and at that time had not found the door frame defective. Brannon contacted a contractor who determined that

Page 557

the house was not level, having settled four inches toward the rear. The contractor dug out sections of the footing and discovered that the footing was resting on uncompacted fill dirt, was improperly wedge-shaped and contained inadequate steel reinforcement. He concluded that these structural problems caused the footing to sink which resulted in the uneven settling of the house. As a consequence, the old footing was removed and replaced. Costs attributed to correcting the footing totalled $29,561.91.

In its complaint, filed on August 8, 1990, appellee stated a cause of action for negligent construction. Appellant answered the complaint, raising the statute of limitation as a defense. Appellee amended the complaint on May 31, 1991, to allege fraud, asserting that appellant was aware that the footing was negligently constructed; that he sought to avoid discovery of such by failing to have the inspection before proceeding with completion of construction; and that his actions were calculated to delay and deter discovery of the negligent construction. At the close of appellee's case, the trial court denied appellant's motion for directed verdict, raising the statute of limitation and the lack of evidence in support of the fraud claim. The motion was renewed after both parties rested their cases and was again denied. The jury returned a verdict for $29,561.91 in compensatory damages.

1. In its first and third enumerations of error, appellant contends the trial court erred in denying his motion for directed verdict based on the statute of limitation and the sufficiency of the evidence on the fraud claim. Both parties agree that a claim based on negligence is barred by the four year statute of limitation governing damage to realty. OCGA § 9-3-30. However, appellee maintains that its cause of action is based on appellant's fraudulent concealment of gross negligence in the construction of the footing which tolled the statute of limitation.

"Fraud claims are governed by a four-year statute of limitation, [OCGA § 9-3-31] ( [cit.] ), but this limitation period may be tolled if [appellant] committed an act of actual fraud that had the effect of concealing from the plaintiff the existence of the cause of action despite [its] exercise of reasonable diligence. [Cits.] Actual fraud involves moral turpitude, [cit.], and requires an intentional deception by false representation or by concealment of a fact. [Cit.] When actual fraud is the gravamen of the underlying action, no independent fraud is required for tolling of the statute of limitation, and the limitation period is tolled until the plaintiff discovers or in the exercise of reasonable diligence should have discovered the fraud. [Cit.]" Hahne [205 Ga.App. 130] v. Wylly, 199 Ga.App. 811(1), 406 S.E.2d 94 (1991). "[W]hen the defects in the property [are] of such a nature that the buyer could not discover them through the exercise of due diligence, the burden [is] on the seller to disclose the seriousness of the problems of...