Gilmore v. Bell , 223 Ga. App. 513 ( 1996 )

478 S.E.2d 609 (1996) 223 Ga. App. 513

GILMORE
v.
BELL et al.

No. A96A0762.

Court of Appeals of Georgia.

October 28, 1996. Reconsideration Denied November 13, 1996. Certiorari Denied February 28, 1997.

Caldwell & Watson, Wade H. Watson III, Atlanta, David L. Mincey, Roberta, for appellant.

Jones, Cork & Miller, Jerry A. Lumley, Macon, John A. Dana, Sandersville, for appellees.

McMURRAY, Presiding Judge.

Thomas W. Gilmore, Jr. and Clifford A. Bell_____a building contractor, real estate broker and building material supplier____ became friends and fraternity brothers while in college in 1945 and, in more recent years, got together and pursued various business ventures_____mostly involving liquidation of Gilmore's 5,000—acre farm. The parties' relationship began deteriorating, however, over four years after Gilmore purchased a new home from Bell which was constructed through Bell's home-building company, Fall Line Properties, Inc. It was then that Gilmore discovered that his home was falling apart due_____in large part_____to a substandard foundation comprising block piers rather than solid block walls. Gilmore was shocked by this revelation because he questioned Bell about the foundation's integrity before the closing and Bell assured him that the structure's foundation was designed and erected in accordance with modern home-building standards. Bell now admits, however, that he made this assurance_____as well as other assurances about the house's quality_____ without supervising the selection or installation of the house's foundation, without determining whether the foundation satisfied the local building code, or without checking with the county to see if the house had passed inspection_____which it had not. Bell simply presumed that the man he hired to supervise the house's construction, Ambros Powell, performed his job within the requisite degree of care and skill_____which (according to expert testimony) he did not.

Gilmore asserted an action against Bell, Fall Line Properties, Inc. and Bell's real estate brokerage firm, Town and Country Real Estate and Investment Company, Inc., pertinently alleging that Bell negligently constructed the house in question and duped Gilmore into purchasing the house by recklessly assuring him that the structure's foundation complied with modern home-building standards. This appeal is from the trial court's order granting Bell's motion for summary judgment based on expiration of the applicable four-year statutes of limitation, OCGA §§ 9-3-30 and 9-3-31. Held:

1. Where fraud by a defendant debars or deters a plaintiff from bringing an action, OCGA § 9-3-96 tolls the statute of limitation until the plaintiff discovers the fraud. And while the fraud described in this Code section must be actual fraud, or fraud involving moral guilt or any artifice by which another is deceived, "[a] confidential relationship between the parties ... lessens, if not negates, the necessity for showing [such] actual fraud. Sutlive v. Hackney, 164 Ga.App. 740, 741, 297 S.E.2d 515 (1982)." Arnall, Golden & Gregory v. Health Svc. Centers, 197 Ga.App. 791, 793(2), 399 S.E.2d 565. In the case sub judice, the trial court found, as a matter of law, that a confidential relationship did not exist between Gilmore and Bell so as to toll the statute of limitation.

The existence of a confidential relationship depends heavily upon the circumstances of each case and is therefore an issue best suited for resolution by a jury. See Adams & Adams, Ga. Law of Torts (1995 ed.), § 32-3. Further, in determining whether genuine issues of material fact remain as to the existence of a confidential relationship, all the law requires is a showing of a relationship which justifies the reposing of confidence by one party in another. Cochran v. Murrah, 235 Ga. 304, 307, 219 S.E.2d 421. The evidence in the case sub judice not only reveals that Bell and Gilmore were trusted friends, college fraternity brothers and business associates, there is proof that Bell held himself out as builder of the house in question when he guaranteed Gilmore about the construction and quality of the house's foundation. There is also proof that Bell was serving as Gilmore's real estate agent when he issued this assurance. These circumstances alone are sufficient to authorize a jury's finding that a confidential relationship existed between Bell and Gilmore so as to toll the statute of limitation. Accordingly, since Gilmore filed the case sub judice less than four years after he allegedly discovered that his house's foundation was not constructed as Bell said, the trial court erred in granting Bell's motion for summary judgment based on expiration of the statutes of limitation, OCGA §§ 9-3-30 and 9-3-31.

2. It is unnecessary to address Gilmore's enumeration of error relating to the trial court's application of the evidentiary rule set out in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680, because we did not consider Gilmore's allegedly conflicting affidavit.

Judgment reversed.

HAROLD R. BANKE, Senior Appellate Judge, concurs.

RUFFIN, J., concurs in the judgment only.