Saffar v. Chrysler First Business Credit Corp.

• Decision Date: 01 November 1994
• Docket Number: No. A94A2254,A94A2254
• Citation: 450 S.E.2d 267,215 Ga.App. 239
• Parties: SAFFAR v. CHRYSLER FIRST BUSINESS CREDIT CORPORATION.
• Court: Georgia Court of Appeals

Page 267

450 S.E.2d 267

215 Ga.App. 239

SAFFAR v. CHRYSLER FIRST BUSINESS CREDIT CORPORATION.

No. A94A2254.

Court of Appeals of Georgia.

Nov. 1, 1994.

Reconsideration Denied Nov. 16, 1994.

Certiorari Denied Feb. 23, 1995.

Davidson & Fuller, Stephen P. Fuller, Norcross, for appellant.

Davis & Walker, Joe G. Davis, Jr., Charles B. Waters, Jr., Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Joseph Saffar, Jr., appeals from the orders of the superior court granting appellee/plaintiff Chrysler First Business Credit Corporation's ("CFBCC") motion for summary judgment as to appellee's claim and appellant's counterclaim, and the entry of final judgment in behalf of appellee.

Appellant contracted to purchase and ultimately purchased an apartment complex from Frederick Spencer for $900,000. Appellant was loaned $500,000 mortgage money by appellee CFBCC and executed a security deed and a promissory note in that amount to CFBCC as security. The seller Spencer purchased the property, apparently out of bankruptcy from the Windy Valley Investment Group, Ltd. ("Windy Valley") for $400,000. Appellee CFBCC was not a party to the purchase or sales contract between appellant and Spencer; neither was it a party to the purchase or sales contract between Spencer and Windy Valley. Spencer did not have legal title to the property at the time he entered the original sales contract with appellant; however, he acquired title during a joint closing at which all of the above parties were present and participated. At the closing, Spencer appears to have closed first and then immediately to have conveyed title to the property to appellant. Further, by the date of closing, the effective date of the sales contract between appellant and Spencer had expired; nevertheless, these parties proceeded with the sale under, at least, modified terms as to the manner in which the $900,000 purchase price would be funded. Appellant elected not to be represented by individual counsel at closing.

Appellant subsequently discovered that Spencer had purchased the property at the same closing for only $400,000 and that substantial repairs, particularly as to underground and related plumbing, were needed on the premises; appellant thereafter quit paying on the note. Appellee brought suit on the note and appellant filed an amended answer and counterclaim averring fraud. Appellant contends on appeal that the trial court erred in granting appellee's motion for summary judgment as genuine issues of material fact exist whether: (a) appellee fraudulently concealed material information from appellant which it should have disclosed and was required to disclose under the circumstances; (b) appellee fraudulently made a material misrepresentation to defendant that it had obtained an appraisal; and (c) the amount of the debt was in factual dispute. Held :

1. We first address appellant's contention that a genuine material fact exists as to the amount that was due and owing on the loan. Appellant's brief contains no citations to any page of the record or transcript in support of this enumeration in violation of Court of Appeals Rule 15(c)(3). Further, examination of the argument of counsel for appellant at the hearing on motion for summary judgment, the response of appellant/defendant to plaintiff's motion for summary judgment, and appellant/defendant's statement of material facts to which there is a genuine issue to be tried, reflects that this contention was not asserted before the trial court. " 'Each party has a duty to present his case in full at the hearing on the motion for summary judgment.' " Coker v. Culter, 208 Ga.App. 651, 652, 431 S.E.2d 443. We will not consider the validity of a trial court's ruling based on a completely different legal issue than timely and specifically raised below, as such an appellate procedure would be contrary to the line of cases holding: " ' "He must stand or fall upon the position taken in the trial court." ' " Bell v. Sellers, 248 Ga. 424, 426(1), 283 S.E.2d 877. Accordingly, the issue presented in this enumeration was not preserved for appellate review. Moreover, no citation is made of the pages of the transcript or record supporting appellant's factual contentions that a genuine material issue exists as to the amount due and owing on the note. It is well-settled that an appellate court will not cull the record in search of error on behalf of one of the parties. Manderson & Assoc. v. Gore, 193 Ga.App. 723, 733(8), 389 S.E.2d 251; accord Benefield v. Benefield, 224 Ga. 208, 209(5), 160 S.E.2d 895.

2. We likewise find without merit appellant's two remaining enumerations of error. Under the attendant circumstances, we find that the record does not raise any genuine issue of material fact that appellant acted in justifiable reliance on any representations allegedly made by appellee in support of its fraud defense and counterclaim.

Appellant made the following admissions in judicio (see generally Shansab v. Homart Dev. Co., 205 Ga.App. 448, 451(4), 422 S.E.2d 305 and cases cited therein) in his deposition testimony: negotiations as to contract price primarily were with Spencer (seller) and Adams who was in the real estate business and introduced seller to appellant; appellant's first contact with appellee, either directly or by phone, was on the day of closing; appellant never personally had an appraisal done but had relied upon appellee (in view of statements contained in the original loan application) to obtain an appraisal which would have to be at least $900,000 to qualify for the loan; appellant never physically inspected the property before closing or looked at the leases of the apartment tenants before his loan was approved; appellant signed the note at closing; appellant arrived at the agreed $900,000 sales price (prior to closing) merely based on representations of property value made to him; appellant was relying on representations made to him by Mr. Adams, Mr. Spencer, and Mr. Wolf (apparently a real estate broker whom appellant concedes he had met only on a few rare occasions and whom he knew to be a secondary person in the transaction); appellant did not attempt to determine who kept the rental records for the building prior to closing; appellant did not inspect the property before he bought it; appellee made no representations to appellant about the condition of the property; appellant never saw the title report that was generated on the property and engaged no one to run an independent title examination on the property; appellant did not ask for a copy of the appraisal prior to closing and admits that at closing he merely examined the first page of a purported appraisal report, and (notwithstanding the amount of money involved) appellant attended closing alone. Additionally, appellant admitted in his deposition that he could not recall exactly what appellee had said to him at closing regarding the value of the property; but, although he cannot remember who said it, appe...