Windsor Forest, Inc. v. Rocker

Citations: 154 S.E.2d 627; 115 Ga. App. 317; 1967 Ga. App. LEXIS 1093Docket: 42578

Court: Court of Appeals of Georgia; February 14, 1967; Georgia; State Appellate Court

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The Court of Appeals of Georgia addressed two primary issues in Windsor Forest, Inc. v. Rocker. 

First, it rejected the argument that the amendment adding Count 2 was defective for lacking a prayer for judgment. Count 2 incorporated prior paragraphs from the original petition, clearly indicating a claim for $10,000 in actual damages and $5,000 in punitive damages. The court emphasized that any defect in the amendment was formal and could be cured by the verdict. Furthermore, a single ad damnum clause suffices for all preceding counts if broadly phrased. The court noted that the amendment was filed subject to objection, and no objections were raised, reinforcing its validity.

Second, the court dismissed claims of insufficient evidence to support the jury's verdict. While the jury had evidence of defective brickwork and estimated repair costs, the court clarified that actual damages in fraud cases are determined by the difference in value at delivery versus the value had the representations been true. This measure applies equally to cases involving construction defects. Thus, the court upheld the jury's findings regarding damages.

Evidence can demonstrate a property's diminished value due to defects, with reasonable correction costs serving as a measure. In this case, the property's value was initially assessed at $18,500 but decreased to $8,000 following the discovery of defective mortar. A contractor testified that all walls had defective mortar joints, necessitating complete brickwork replacement at a cost of $9,851. Cracking walls and deteriorating mortar indicated a pervasive issue, potentially caused by improper freezing conditions during construction. The jury could appropriately base damages on either the property's intended value if correctly completed or the cost to fix the mortar.

Additionally, concerns were raised about the trial court's handling of jury charge requests. Appellant's counsel claimed they were not allowed to object to certain requests before the court instructed the jury, though they could present objections afterward. The Appellate Practice Act permits courts to address requests without requiring pre-instruction objections from counsel. The trial judge has discretion in trial conduct, including the timing of objections. Even if pre-instruction objections were warranted, any failure to allow them did not constitute harmful error, especially if the requests were not erroneous. The defendant retains rights for appeal if errors occur.

No reversible error was found in the requests made by the appellees, rendering the appellant's claims meritless. The appellant conceded that they did not object to a specific portion of the jury charge before the verdict, as required by the Appellate Practice Act, but sought a review under a different section. Upon examination, the alleged errors did not meet legal standards for reversal and were deemed harmless. In addressing Enumerations of error Nos. 6 and 7, the court noted that a request regarding wilful misrepresentation was objected to only concerning Count 1, which had no verdict against the appellant, thus any error was also harmless. A request to charge regarding reckless representation was similarly deemed harmless for the same reason. Enumeration of error No. 9 was abandoned due to lack of argument. The court affirmed that if a concealed defect existed and was known or should have been known by the seller, it constituted fraud if not disclosed. The appellant's argument regarding the timing of the contract and construction was found unpersuasive, as the obligation to disclose any known defects remained at the time of delivery. The judgment was affirmed, with both judges concurring.