Clay v. Department of Transportation

Banke, Presiding Judge. The appellants, consisting of Robert N. Clay and the Citizens & Southern Trust Company (“the bank”), acting as trustees under the will of Clyde H. Clay, are the owners of eight commercial properties [156] located along a highway which the Department of Transportation determined to widen. This litigation concerns the DOT’s negotiated purchase from the appellants of the additional right-of-way needed for this project along two of the properties in question. The parties were unable to reach an agreement as to compensation on the other six properties, which consequently became the subject of condemnation proceedings which are not involved in this appeal. After the road-widening project commenced, it became evident to the appellants that the DOT intended not only to widen the highway but also to raise its grade level by approximately four feet on the side adjacent to their property, in order to create a “super-elevated curve.” The appellants filed the present action to enjoin the project or, in the alternative, to recover additional compensation for the property rights which they sold to the DOT, alleging that the DOT’s failure to notify them of its intention to elevate the road in this manner constituted the intentional and fraudulent concealment of a material fact materially affecting the value of their remaining property. It is apparent without dispute that before the improvements were undertaken, the properties in question were at grade level and were fully accessible at all points along the highway. The appellants allege in their complaint that as a result of the improvements, vehicles attempting to exit their shopping center will now be required to travel “almost straight up a four-foot embankment into a four-lane highway, with unreasonable problems of visibility.” The trial court denied the appellants’ request for injunctive relief on the ground that construction of the improvements in question was already completed, and that ruling has not been appealed. The trial court subsequently granted summary judgment to the DOT on the appellants’ remaining damage claim, concluding that in the absence of any evidence or allegation that the DOT had made an affirmative misrepresentation to them that the road would not be elevated, there had been no showing of fraud sufficient to authorize the setting aside of the right-of-way deeds. Held: 1. Although the issue has not been raised by the parties, there is disagreement among the members of this court over whether this is an equity case, such that appellate jurisdiction would be in the Supreme Court pursuant to Art. VI, Sec. VI, Par. Ill (2) of the Ga. Const, of 1983. “The rule is that ‘to make a case one for equity jurisdiction it must contain allegations and prayers for equitable relief.’ (Cit.)” Jones v. Van Vleck, 224 Ga. 796, 797 (164 SE2d 724) (1968). Accord Reynolds v. Hyers, 190 Ga. 200, 202 (9 SE2d 78) (1940); Atlantic States Constr. v. Beavers, 250 Ga. 828, 829 (301 SE2d 635) (1983). The only request for equitable relief made by the appellants in their complaint was for an injunction to halt construction of the road im [157] provements. As the denial of that request was not appealed, it follows that there is not currently any claim for equitable relief pending in the case. We accordingly hold that jurisdiction over the present appeal is in this court rather than the Supreme Court. See Johnson v. Mut. Fed. &c. of Atlanta, 225 Ga. 245 (167 SE2d 653) (1969). 2. “ ‘Fraud may exist as much in intentional concealment of material facts, as in false statements in regard to facts. One is as fraudulent as the other, if it is used as a means of deceiving the opposite party.’ ” Friedman v. Goodman, 222 Ga. 613, 623 (151 SE2d 455) (1966), quoting from Jordan v. Harber, 172 Ga. 139 (4) (157 SE 652) (1931). “Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” (Emphasis supplied.) OCGA § 23-2-53. See also OCGA § 51-6-2. It is apparent without dispute from the record that during its negotiations with the appellants the DOT already had in its possession plans showing the proposed grade-change elevations. However, according to all of those involved in those negotiations on behalf of the appellants (who included, in addition to Mr. Clay, an officer of the bank which was acting as co-trustee of the property and an appraiser hired by him), none of the plans showed to them by the DOT representatives showed any grade elevations. While one of the DOT’s agents submitted an affidavit in which he averred that it was his belief that the appraiser had reviewed such plans during a visit to the DOT office, this affidavit clearly is not, as suggested by the dissent, dispositive of whether such plans were actually shown to the appellants but at most creates a factual dispute on the issue. While the appellants and their appraiser have quite candidly acknowledged that it never occurred to them during the negotiations to ask whether a change in the existing grade level was being contemplated, they assert that the circumstances did not suggest the existence of any reason for such a change; and, in view of their collective expertise and experience in dealing with real estate, it is certainly conceivable that a jury might agree with them on this point and conclude that their failure to ask the DOT about its intentions in this regard did not constitute a failure to exercise due diligence. While the appellants have further acknowledged their awareness that an increase in elevation of up to a foot would necessarily result from the project (which, of course, called for the addition of new pavement to the existing road), such an awareness obviously would not have alerted them to the possibility that the DOT was planning a “super-elevated curve.” Furthermore, Mr. Clay testified that he affirmatively stated during the negotiations that it was his understanding that “this property is not going to be hurt”; and he stated that by “their [158] silence” the DOT representatives “indicated to me that my statement was true.” The dissent would excuse the DOT’s failure to respond to this comment for the stated reason that “it is not so clear that the change in elevation ‘hurt’ the property to the extent that [the] DOT should have immediately appreciated that Mr. Clay’s comment was incorrect. . . .” However, this is clearly a point on which reasonable minds could disagree. According to the appellants, the change in elevation has in effect dropped their property from grade level to the bottom of a four-foot embankment, and there is evidence that, whereas their parking lot was previously accessible at all points along the highway, it is now accessible only through ramps constructed by the DOT for that purpose. It is difficult to imagine how this could have anything other than a materially negative effect on the desirability and value of the property for shopping center purposes. While the appellants have not yet offered proof of the extent to which the value of their remaining property was diminished, the burden was not on them to do so at this juncture. Rather, they were entitled, as respondents on motion for summary judgment, to the benefit of any doubt on this as well as all other disputed issues in the case. See generally Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973); First of Ga. Ins. Co. v. Josey, 129 Ga. App. 14, 15 (198 SE2d 381) (1973). The DOT relies on the Supreme Court’s decision in White County v. Wooten, 219 Ga. 236 (132 SE2d 653) (1963), as authority for the proposition that an affirmative misrepresentation is required to set aside a right-of-way deed. In that case, the alleged misrepresentation was a statement by the county commissioner to the property owner to the effect that “if a paved road at the grade level would be constructed on the right-of-way that it would enhance the value of the plaintiff’s property and thereby compensate him over and above the amount of money actually paid to plaintiff for his lands. . . .’” (Emphasis from original.) Id. at 240. In the present case, a paved road already existed at grade level, and no reference whatever was made by the condemnor to the possibility that its elevation might be substantially changed. The present case is also distinguishable from such cases as Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989), and Kirven v. Blackett, 208 Ga. 178 (65 SE2d 791) (1951), in that the alleged concealment at issue here did not concern an existing characteristic of the property which the plaintiffs could have discovered independently by such means as obtaining a survey or analyzing a soil sample. Rather, it concerned a plan for future improvements known only to the DOT and which the DOT alone was in a position to disclose or verify. Based on the evidence that the DOT’s representatives not only failed to share with the appellants its plans for a “super-elevated curve” but remained silent in the face of Mr. Clay’s affirma [159] tive disclosure to them during the negotiations that he was operating under the assumption and belief that the improvements would not “hurt” his remaining property, we hold that the trial court erred in granting the DOT’s motion for summary judgment. 3. The appellants’ remaining enumerations of error are rendered moot by the foregoing. Judgment reversed. Deen, P. J., Sognier, Pope, Beasley and Cooper, JJ., concur. Carley, C. J., McMurray, P. J., and Birdsong, J., dissent.