O'Dell v. Mahoney
324 Ga. App. 360
| Ga. Ct. App. | 2013Background
- O’Dell bought a Savannah house from the Mahoneys in January 2005; the Purchase Agreement incorporated a Sellers’ Property Disclosure. After closing he experienced flooding and septic failure and sued the Mahoneys, listing agent Heather Ensign, and Ben Farmer Realty, Inc. (BFR).
- Ensign was the Mahoneys’ listing agent and affiliated with BFR as a commissioned real estate salesperson; no written employment agreement or salary existed between Ensign and BFR.
- Discovery revealed disputed facts about the Disclosure Statement (Sandra signed but didn’t review it; Roland disclaimed his signature and suggested possible forgery).
- The trial court dismissed Ensign (March 5, 2012) and granted summary judgment to BFR (April 17, 2012). O’Dell later settled with the Mahoneys and obtained final judgment consistent with that settlement, then appealed the earlier orders.
- The court addressed (1) appellate jurisdiction given the settlement/final judgment, (2) whether BFR is liable vicariously or directly (including under BRRETA), (3) whether fraud/negligent hiring claims survived, and (4) whether the suit against Ensign was barred by the automatic bankruptcy stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review pre-settlement orders | O’Dell appealed March 5 and April 17 orders despite later settling with Mahoneys | Appellees: settlement procured the final judgment; O’Dell cannot complain about a judgment his conduct produced | Court has jurisdiction to review the earlier orders (appealable under OCGA §9-11-56(h) and related principles) |
| Vicarious liability of BFR for Ensign’s alleged negligence/fraud | BFR can be liable for Ensign’s acts; agency/broker responsibilities create fact issues | BFR: Ensign was an independent contractor, so BFR not liable vicariously | Summary judgment for BFR affirmed — Ensign was an independent contractor as a matter of law |
| Direct liability / BRRETA duty of broker to disclose adverse material facts | O’Dell: BFR (broker) failed to disclose flooding/septic defects and breached BRRETA duties | BFR: even if there were undisclosed facts, O’Dell failed to exercise reasonable diligence (no inspection), fatal to BRRETA claim; BFR was not Ensign’s seller-engaged broker | Summary judgment for BFR affirmed — buyer’s lack of diligence (no inspection) defeats BRRETA-based recovery; other BRRETA theories inapplicable |
| Dismissal of Ensign based on automatic bankruptcy stay | O’Dell: claims against Ensign are not barred because she didn’t list him as a creditor and he lacked notice | Ensign: bankruptcy stay was in effect when plaintiff attempted to commence suit/serve her; actions in violation of stay are void ab initio | Dismissal affirmed — suit against Ensign was commenced/served during her bankruptcy stay and thus void; cited authorities do not exempt unlisted creditors absent relief from Bankruptcy Court |
Key Cases Cited
- Whiddon v. Stargell, 192 Ga. App. 826 (Court has duty to inquire into appellate jurisdiction)
- Cherry v. Hersch, 193 Ga. App. 471 (final-judgment rule in multi-party cases under OCGA § 9-11-54(b))
- Torres v. Elkin, 317 Ga. App. 135 (settlement/voluntary dismissal and appealability principles)
- Walker v. Johnson, 278 Ga. App. 806 (broker generally not liable for torts of independent-contractor salespersons)
- Ross v. Ninety-Two West, Ltd., 201 Ga. App. 887 (factors supporting independent-contractor status of realtor)
- Mark Six Realty Assocs., Inc. v. Drake, 219 Ga. App. 57 (contrast: circumstances supporting employee status)
- Shaw v. Robertson, 307 Ga. App. 337 (buyer’s failure to exercise diligence defeats BRRETA claim re: flood-zone disclosure)
- Peacock v. Kiser, 272 Ga. App. 83 (similar BRRETA/diligence principle)
- McKeen v. Federal Deposit Ins. Corp., 274 Ga. 46 (actions in violation of automatic bankruptcy stay are void)
- Schafer v. Wachovia Bank of Ga., N.A., 248 Ga. App. 466 (discussed and limited on automatic-stay/creditor-not-listed point)