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Browning Builders, Inc. v. Bond
Citations: 235 Ga. 322; 219 S.E.2d 436; 1975 Ga. LEXIS 866Docket: 30114, 30170
Court: Supreme Court of Georgia; October 1, 1975; Georgia; State Supreme Court
Two appeals have arisen following a jury trial that resulted in a mistrial due to the jury's inability to reach a verdict. The case originated when Elizabeth Alford filed a complaint against Browning Builders, Inc. on October 31, 1972, alleging wrongful dispossession and seeking to void a contract with Browning, along with a promissory note and security deed executed in 1970. After Mrs. Alford's death, her estate's personal representative, Mr. Bond, was substituted as a party. Mrs. Alford's complaint claimed that Browning took advantage of her poor health, which impaired her reasoning, to persuade her into a management contract and to provide a promissory note and a second-lien security deed. She also alleged that Browning failed to notify her regarding the enforcement of the security deed versus the management contract. The trial judge had previously enjoined Browning’s dispossessory action, allowing Mrs. Alford to remain in her home until her death on February 5, 1974. The case proceeded to a mistrial in September 1974, with Browning’s motions for summary judgment and directed verdict being denied. Browning is appealing the denial of its motion for judgment notwithstanding the mistrial, while Mrs. Alford's representative cross-appeals, citing trial errors. The trial judge submitted a single issue to the jury regarding whether Browning had committed fraud against Mrs. Alford warranting cancellation of the executed instruments. However, the judge instructed the jury that there was no evidence supporting the claim that Mrs. Alford’s mental or physical condition adversely affected her reasoning. The judge also confirmed that it was uncontested that the contract and security deed were duly executed in August 1970, which the review of the trial transcript affirmed as accurate. Evidence indicates that Mrs. Alford was competent when she executed and delivered the contract, note, and second-lien security deed, as well as at the time of foreclosure. It is uncontested that she signed these documents. A letter dated August 12, 1971, from Mr. Kenmore to Mrs. Alford notified her of the default on her second mortgage note and the first mortgage note, leading to the declaration of default and potential foreclosure by Browning Builders, Inc. The letter detailed the defaults and the legal implications, including the obligation to pay attorney's fees if the debt was not settled within ten days. Following receipt of the letter, Mrs. Alford took no action for fifteen months until dispossessory proceedings were initiated. The trial evidence did not support a finding of fraud by Browning against Mrs. Alford, leading to the conclusion that the trial court erred in denying Browning’s motion for judgment notwithstanding the mistrial. Consequently, the judgment in favor of Browning Builders, Inc. was reversed, and the cross appeal was dismissed as moot since it was unnecessary to address errors raised for a potential retrial. The case was argued on July 8, 1975, and the decision was made on October 1, 1975, with all justices concurring.