Rowe v. Steve Allen & Associates, Inc.
| Decision Date | 09 October 1990 |
| Docket Number | No. A90A1470,A90A1470 |
| Citation | 197 Ga.App. 452,398 S.E.2d 717 |
| Court | Georgia Court of Appeals |
| Parties | ROWE, et al. v. STEVE ALLEN & ASSOCIATES, INC. |
William R. Hurst, Dunwoody, for appellants.
Chesnut & Livingston, Tom Pye, Doraville, for appellee.
The appellants purchased a residential lot from the appellee developer on which they later constructed a home. They filed this action against the appellee and against their builder, seeking to recover for settlement damage to the home which occurred because a portion of the foundation was built over a landfill pit consisting of buried stumps, limbs, trash and construction debris. They voluntarily dismissed the claim against the builder just prior to trial, and a jury thereafter returned a verdict in favor of the appellee. In this appeal from the denial of their motion for new trial, they contend that the trial court erred in denying their request for a jury charge which would have permitted them to recover on the theory of nuisance in addition to the fraudulent concealment theory of recovery set forth in the complaint. See generally OCGA § 41-1-1.
The appellants purchased the lot from the appellee in the summer of 1981. Construction of the home was commenced in the summer of 1983 and was substantially completed by March of 1984. The appellants first began to notice cracking and other signs of settlement in 1986 and learned of the existence of the landfill pit late in 1987, after hiring an engineer to determine the source of the problem. They filed the present action on February 1, 1988, alleging that the appellee had fraudulently concealed the existence of the pit from them when they purchased the property and, by creating it, had engaged in "inherently dangerous and illegal activity which violated standards and practices of the building and construction industry." Their claim against the builder, which, as previously indicated, they voluntarily dismissed just prior to trial, was based on allegations that he had "contributed to the problem created by [the appellee] by further digging and dumping trash in the hole and in failing to recognize the apparent problem...." Held:
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