These companion appeals arise from a dispute between John Paul Perry and his son, John Benjamin Perry, over a house in Snellville. In Case No. A07A0368, the father appeals the trial court’s grant of a new trial on damages. In Case No. A07A0367, the son cross-appeals concerning the conduct of the trial. We reverse the trial court’s grant of a motion for new trial as to damages and affirm the jury’s verdict.
Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict.
(Citation omitted.)
Booker v. Older Americans Council of Middle Ga.,
So viewed, the record shows that the father was living in a house in Forest Park when his son asked him to sell that house and move into the son’s house in Snellville. The son sought to use the proceeds of the sale to pay off the mortgage on the Snellville house, promising to prepare a new deed reflecting his father’s ownership. The father then sold his house, gave his son the $93,000 proceeds, and moved into the Snellville house. The son never conveyed the property to his father as promised, however. Instead, he obtained a new $85,000 mortgage on the Snellville house and used this “bridge loan” to buy a new house worth over $500,000.
When information on the new mortgage came to the Snellville house, the father discovered it and demanded that the son pay off the mortgage and transfer the property to him. The son then drafted an agreement specifying that the father would receive 65 percent and the son 35 percent of the property’s value upon its sale. The father agreed to sign the document, but testified that he did so “under protest” in order to obtain some acknowledgment of his interest in the house. The son eventually paid off the mortgage but never conveyed any interest in the property to his father.
The father then sued his son for conversion, fraud, constructive trust, and punitive damages. At trial, the father introduced without objection evidence that the Snellville house had been appraised in 2002 at $138,000 and in 2005 at $148,000. The son testified that the *893 house was worth $138,000 in 2002, and that the 2005 appraisal showed its value as $148,000. At the conclusion of the trial, the jury found the son liable for fraud and awarded the father a constructive trust in the Snellville house as well as $148,000 in damages. The trial court entered judgment on the verdict, adding that the constructive trust wouldbe removed upon satisfaction of the money judgment. The trial court later granted the son’s motion for new trial as to damages, however, holding that because the appraisals were “hearsay and improperly admitted,” there was “no record evidence, other than the appraisals,” to support the jury’s award.
Case No. A07A0368
1. We granted the father’s application for interlocutory review to determine whether the trial court erred when it granted a new trial on damages on the ground that the appraisal evidence supporting the jury’s damages award was inadmissible and nonprobative hearsay.
OCGA § 24-9-66 provides:
Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article in question but may testify as to its value if he has had an opportunity for forming a correct opinion.
As we have held, then, a nonexpert can offer an opinion of the value of real property, even if that opinion is based on hearsay. “While hearsay has no probative value, opinions as to value may be based on hearsay.... The fact that the opinions were based upon hearsay goes merely to their weight and not their admissibility.” (Citations and punctuation omitted.)
Braswell v. Henderson,
Here, both parties testified as to the value of the Snellville house, including the appraisals. Given both parties’ familiarity with the house, this testimony was probative evidence as to value, and the son was in no position to obtain a new trial on the ground that his own testimony on the subject was inadmissible. See
Daniels Mortuary,
supra (affirming admission of lay witness’s opinion as to value of real property);
Booker,
supra,
Case No. A07A0367
In the cross-appeal, the son argues that the trial court erred when it failed to grant a directed verdict and charged the jury on fraud, constructive trust, and damages. The son also alleges that the court erred when it allowed the introduction of evidence concerning the appraisals, the son’s wealth, and the father’s mental health.
2. To succeed on a claim for fraud,
the plaintiff must show that the defendant made a false, material representation of an existing fact with knowledge that it was false or with reckless disregard as to whether it was true and that it was with the intent that it be acted upon by the plaintiff; and, further, that the plaintiff acted upon the misrepresentation in reasonable reliance of its truth in a manner reasonably foreseeable by the defendant and to the plaintiffs proximate injury.
Brown v. Techdata Corp.,
“A constructive trust is a trust implied whenever the circumstances are such that the person holding legal title to [the] property, either from fraud or otherwise, cannot enjoy the beneficial interest in the property without violating some established principle of equity.” OCGA§ 53-12-93 (a).
With regard to interests in real property, a constructive trust generally may not be imposed based solely on a broken verbal promise to hold or transfer the land for the benefit of another. ... A broken verbal promise may be the basis of a constructive trust, however, if it was fraudulently made with the intention of being broken and for the purpose of thereby obtaining title.
(Citations and punctuation omitted; emphasis supplied.)
Parris v. Leifels,
Here, the father testified that he sold his own house and gave his son the proceeds in reliance on the son’s promise to put the house in the father’s name. The father performed his obligations under this oral agreement when he paid the son those proceeds. See OCGA § 13-5-31 (2) (oral agreement may be enforced by side which has performed in accordance with the agreement). This and other evidence sufficed to deny the son’s motion for directed verdict and to sustain the jury’s verdict as to fraud and constructive trust. The parties’ written agreement to split the equity 65/35 did not subsume the parties’ original agreement. See
Wallace v. Bock,
3. Atrial court may not grant a motion for directed verdict based on a failure to prove damages
unless there is a complete absence of any competent evidence on this issue. A trial court’s approval of a jury verdict as to damages, moreover, creates a presumption of correctness that cannot be disturbed on appeal absent compelling evidence, and a reviewing court is powerless to interfere unless it is clear from the record that the verdict of the jury was prejudiced or biased or was procured by corrupt means.
(Punctuation and footnotes omitted.)
Dickey v. Clipper Petroleum,
4. We review a trial court’s decision to admit or exclude evidence only for an abuse of discretion.
Stovall v. DaimlerChrysler Motors Corp.,
The son himself testified on direct examination as to his wealth, and thus induced any alleged error. See
Booker,
supra,
Judgment affirmed in Case No. A07A0367. Judgment reversed in Case No. A07A0368.