450 S.E.2d 267 | Ga. Ct. App. | 1994
Joseph Saffar, Jr., appeals from the orders of the superior court granting appellee/plaintiff Chrysler First Business Credit Corporation’s (“CFBCC”) motion for summary judgment as to appellee’s claim and appellant’s counterclaim, and the entry of final judgment in behalf of appellee.
Appellant contracted to purchase and ultimately purchased an apartment complex from Frederick Spencer for $900,000. Appellant was loaned $500,000 mortgage money by appellee CFBCC and executed a security deed and a promissory note in that amount to CFBCC as security. The seller Spencer purchased the property, apparently out of bankruptcy from the Windy Valley Investment Group, Ltd. (“Windy Valley”) for $400,000. Appellee CFBCC was not a party to the purchase or sales contract between appellant and Spencer; neither was it a party to the purchase or sales contract between Spencer and Windy Valley. Spencer did not have legal title to the property at the time he entered the original sales contract with appellant; however, he acquired title during a joint closing at which all of the above parties were present and participated. At the closing, Spencer appears to have closed first and then immediately to have conveyed title to the property to appellant. Further, by the date of closing, the effective date of the sales contract between appellant and Spencer had expired; nevertheless, these parties proceeded with the sale under, at least, modified terms as to the manner in which the $900,000 purchase price would be funded. Appellant elected not to be represented by individual counsel at closing.
Appellant subsequently discovered that Spencer had purchased
1. We first address appellant’s contention that a genuine material fact exists as to the amount that was due and owing on the loan. Appellant’s brief contains no citations to any page of the record or transcript in support of this enumeration in violation of Court of Appeals Rule 15 (c) (3). Further, examination of the argument of counsel for appellant at the hearing on motion for summary judgment, the response of appellant/defendant to plaintiff’s motion for summary judgment, and appellant/defendant’s statement of material facts to which there is a genuine issue to be tried, reflects that this contention was not asserted before the trial court. “ ‘Each party has a duty to present his case in full at the hearing on the motion for summary judgment.’ ” Coker v. Culter, 208 Ga. App. 651, 652 (431 SE2d 443). We will not consider the validity of a trial court’s ruling based on a completely different legal issue than timely and specifically raised below, as such an appellate procedure would be contrary to the line of cases holding: “ ‘ “He must stand or fall upon the position taken in the trial court.” ’ ” Bell v. Sellers, 248 Ga. 424, 426 (1) (283 SE2d 877). Accordingly, the issue presented in this enumeration was not preserved for appellate review. Moreover, no citation is made of the pages of the transcript or record supporting appellant’s factual contentions that a genuine material issue exists as to the amount due and owing on the note. It is well-settled that an appellate court will not cull the record in search of error on behalf of one of the parties. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (8) (389 SE2d 251); accord Benefield v. Benefield, 224 Ga. 208, 209 (5) (160 SE2d 895).
2. We likewise find without merit appellant’s two remaining enumerations of error. Under the attendant circumstances, we find that the record does not raise any genuine issue of material fact that appellant acted in justifiable reliance on any representations allegedly made by appellee in support of its fraud defense and counterclaim.
Appellant made the following admissions in judicio (see generally Shansab v. Homart Dev. Co., 205 Ga. App. 448, 451 (4) (422 SE2d 305) and cases cited therein) in his deposition testimony: negotiations
Appellee CFBCC owed no legal duty to act as appellant’s legal or financial advisor; there existed no confidential relationship between appellant and appellee. Compare First Union Nat. Bank of Ga. v. Gurley, 208 Ga. App. 647 (1) (431 SE2d 379); Pruett v. Commercial Bank of Ga., 206 Ga. App. 103 (424 SE2d 284). The record reveals nothing more than an arms-length money lending transaction between the parties. “A fiduciary or confidential relationship arises where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost
Although both Salmon v. Pearson & Assoc., 214 Ga. App. 11 (446 SE2d 762) and Copeland v. Home Savings of America, 209 Ga. App. 173, 174 (433 SE2d 327) are factually distinguishable from this case, we find Copeland and First Union, supra, to be more persuasive under the circumstances. Salmon, supra, which concerns reliance on a professional certification, is substantially inapposite and not controlling.
Moreover, the record unequivocally reflects that appellant did not use the ordinary means of information available at his disposal to protect his interest. He made no pre-sale physical inspection of the property (though when the water was turned on only a week after closing it was reported to him that a monumental amount of water leakage was noticed and that water was visibly blowing out of certain apartment windows); he made no demand to see the entire appraisal
The record before us is replete with evidence of appellant’s failure to protect his own vital interests in this transaction; the appellate process affords us no latitude to make adjustments for the ill-earned good fortune of the lucky or the heart-rending misfortunes of the unlucky. Floyd S. Pike Elec. Contractors v. Williams, 207 Ga. App. 86, 89 (2e) (427 SE2d 67).
Judgment affirmed.