Weinstock v. Novare Group, Inc.
309 Ga. App. 351
| Ga. Ct. App. | 2011Background
- Weinstock and Sarif purchased condominiums at Twelve Atlantic Station, marketed by Novare and affiliates as offering spectacular city views.
- Novare knew The Atlantic would block those views but did not disclose this to purchasers.
- Sales agents were instructed to answer development questions with vague statements about future development and no height limits.
- Purchasers did not timely rescind; they amended pleadings later to seek rescission, while pursuing damages for fraud and FBPA claims.
- The trial court granted summary judgment for Novare on all claims; on appeal, issues centered on reliance, rescission, and statute of limitations.
- Court affirmed summary judgment, holding merger/disclaimer clauses barred certain claims and FBPA claims were time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Negligent misrepresentation reliance | Weinstock/Sarif relied on pre-sale views not in contract. | Merger clause/pre-sale disclosures preclude reliance on outside representations. | Merger clause bars negligent misrepresentation claim. |
| Fraudulent inducement and contract affirmation | Failure to rescind negates contract affirmation and supports fraud claim. | Affirmed contract by retaining benefits; rescission timely not shown. | Contract affirmation defeats fraud claim; rescission was untimely. |
| Negligent supervision | Employer liable for negligent supervision due to agent misrepresentations. | No evidence of employee tendency to misrepresent and contract disclaimers apply. | Summary judgment proper; no evidence of negligent supervision. |
| Implied easement rights | Novare’s construction violated implied easement of light and air. | OCGA § 44-9-2 easement not arise here; no property overlap or unlawful obstruction. | No implied easement or light/air rights violated. |
| FBPA statute of limitations | Damages and concealment tolled discovery; claim timely after 2006 development news. | Action barred; harm occurred by 2006; plaintiffs knew and delayed. | FBPA claims barred by statute of limitation. |
Key Cases Cited
- Megel v. Donaldson, 288 Ga.App. 510, 654 S.E.2d 656 (2007) (merger clause estops reliance on pre-contract promises)
- Savage v. KGE Assocs. Ltd. Partnership, 260 Ga.App. 770, 580 S.E.2d 591 (2003) (entire agreement clause bars reliance for misrepresentation)
- Ekeledo v. Amporful, 281 Ga. 817, 642 S.E.2d 20 (2007) (affirming contract bars fraud claim where contract disclaims reliance)
- Browning v. Stocks, 265 Ga.App. 803, 595 S.E.2d 642 (2004) (active concealment of defects not applicable where no defect alleged)
- Dickey v. Clipper Petroleum, Inc., 280 Ga.App. 475, 634 S.E.2d 425 (2006) (fraud claims require proof of concealment of defect)
- Orion Capital Partners, L.P. v. Westinghouse Elec. Corp., 223 Ga.App. 539, 478 S.E.2d 382 (1996) (tender and rescission issues in fraud context)
- Holloman v. D.R. Horton, 241 Ga.App. 141, 524 S.E.2d 790 (1999) (timeliness of rescission and amendment considerations)
- Conway v. Romarion, 252 Ga.App. 528, 557 S.E.2d 54 (2001) (timely rescission can be asserted by amendment under certain facts)
- Arko v. Cirou, 305 Ga.App. 790, 700 S.E.2d 604 (2010) (pleadings can imply rescission rights absent explicit prayer)