Pollman v. Swan
289 Ga. 767
Ga.2011Background
- In 2004 Pollmans purchased a Savannah townhome built by Swan Construction in a Forest River development; Louise Swan was a principal in both Swan Construction and Forest River.
- Neighborhood Realty listed and marketed the townhome through agents Holcombe and Harbuck.
- Pollmans filed suit 14 months after closing seeking compensatory and punitive damages for breach of contract, negligence, fraud, and RICO.
- 2009 trial court granted summary judgment to defendants on contract, negligence, and RICO; Court of Appeals affirmed those rulings.
- Georgia Supreme Court granted certiorari to consider RICO mail fraud reliance and damages-proof standards; opinion clarifies reliance is not required for mail fraud per Bridge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is justifiable reliance required for RICO mail fraud in Georgia? | Pollman argues reliance is not required due to federal standard. | Swan contends reliance is an element under state law as applied to mail fraud. | Reliance not required; Bridge controls and requires no justifiable reliance for mail fraud. |
| What damages proof is required for contract and negligence claims to defeat summary judgment? | Pollman contends evidence of damages need not be a specific dollar amount. | Swan argues proof of damages is necessary to establish liability. | Plaintiffs must provide a basis for calculating damages; absence of evidence precludes triable damages. |
| What is the proper damages measure for defective construction (cost of repair vs diminution in value)? | Damages should be measured by repair costs where applicable. | Damages should reflect diminution in value if repair costs are disproportionate. | Damages are determined by the appropriate measure (repair cost or diminution in value) based on facts; here no evidence to calculate damages, supporting partial affirmance/remand. |
Key Cases Cited
- Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639 (2008) (mail fraud does not require justifiable reliance under federal law; influences state RICO interpretation)
- Markowitz v. Wieland, 243 Ga.App. 151 (2000) (reliance required for certain fraud theories under prior Georgia RICO analysis)
- John Thurmond & Assoc. v. Kennedy, 284 Ga. 469 (2008) (damages measurement guidance in construction defect cases)
- Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827 (2002) (damages and proof standards in administrative and public works contexts)
- Lau's Corp. v. Haskins, 261 Ga. 491 (1991) (evidence and burden shifting in damages cases)