Wadsworth v. Norris Lake Shores Development Corp.

Full title: WADSWORTH v. NORRIS LAKE SHORES DEVELOPMENT CORPORATION

Court: Court of Appeals of Georgia

Date published: Jan 31, 1974

204 S.E.2d 482 (Ga. Ct. App. 1974)

204 S.E.2d 482

Opinion

48719.

ARGUED NOVEMBER 5, 1973.

DECIDED JANUARY 31, 1974.

Action for damages. Gwinnett Superior Court. Before Judge Pittard.

Herbert T. Jenkins, Jr., Fred W. Minter, for appellant.

Webb, Fowler Tanner, Jones Webb, for appellee.

BELL, Chief Judge.

The plaintiff sued for damages alleging that he had purchased a lot from the defendant and was induced to do so by fraud and deceit. The defendant denied the allegations of fraud. The defendant moved for summary judgment relying only upon the plaintiff's allegations of fraud. No evidence by way of affidavit or otherwise was submitted by defendant to support the motion. An examination of the pleadings, which is the only basis for the grant of the motion for summary judgment, reveals that there are genuine issues of material fact present for jury resolution. The question of whether the party complaining of the alleged fraud has used proper diligence to discover the alleged fraud is ordinarily for the jury. Cato v. English, 228 Ga. 120, 122 ( 184 S.E.2d 161). The defendant failed to pierce the allegations of fraud contained in plaintiff's complaint and it was error for the trial judge to grant the summary judgment.

Judgment reversed. Deen and Quillian, JJ., concur.

BELL, Chief Judge.

ARGUED NOVEMBER 5, 1973 — DECIDED JANUARY 31, 1974.