Jennings v. Smith, 487 S.E.2d 362 (Ga. Ct. App. 1997). · Go Syfert
Jennings v. Smith, 487 S.E.2d 362 (Ga. Ct. App. 1997). Cases Citing This Book View Copy Cite
61 citation events (48 in the last 25 years) across 3 distinct courts.
Strongest positive: DAL MOTORS, INC. v. JULIZA OROSCO (gactapp, 2024-10-23)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 24 distinct citers.
discussed Cited as authority (rule) DAL MOTORS, INC. v. JULIZA OROSCO
Ga. Ct. App. · 2024 · confidence medium
See Almond, 283 Ga. App. at 889 (2) (upheld jury’s verdict against individual for fraud, due to evidence of misrepresentations he made to the plaintiff in relation to the tax services provided by the corporation); Jennings v. Smith, 226 Ga. App. 765, 767-768 (2) ( 487 SE2d 362 ) (1997) (reversed summary judgment grant to a corporate officer, finding issues of material fact as to whether he could be held personally liable for fraudulent concealment because he specifically directed or participated in the construction and repairs performed by the construction company).
discussed Cited as authority (rule) Woodstone Townhouses, LLC v. Southern Fiber Worx, LLC (2×) also: Cited "see"
Ga. Ct. App. · 2021 · confidence medium
However, there is an exception to this general rule: An officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor, and an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or cooperated therein. 40 Jennings v. Smith, 226 Ga. App. 765, 766 (1) ( 487 SE2d 362 ) (1997) (citations and punctuation omitted); accord Almond v. McCranie, 283 Ga. App. 887, 889 (2) ( 643 SE2d 535 ) (2007).
discussed Cited as authority (rule) Bo Phillips Company, Inc. v. R.L. King Properties, LLC (2×)
Ga. Ct. App. · 2016 · confidence medium
See BTL COM v. Vachon, 278 Ga. App. 256, 260 (1) ( 628 SE2d 690 ) (2006) (Summary judgment in favor of individual defendants was improper as there remained issues of fact as to whether they participated in false representations that induced plaintiff to enter into agreement with the defendants’ company.); Jennings v. Smith, 226 Ga. App. 765, 766-767 (1) ( 487 SE2d 362 ) (1997) (If a jury found the corporation negligent in constructing or repairing the house, it could also find the appellee, a corporate officer, personally liable for such negligence because he specifically directed or partici…
cited Cited as authority (rule) Cushing v. Cohen
Ga. Ct. App. · 2013 · confidence medium
Jennings v. Smith, 226 Ga. App. 765, 766 (1) ( 487 SE2d 362 ) (1997).
discussed Cited as authority (rule) Mark A. Scheinfeld v. Charles M. Cushing
Ga. Ct. App. · 2013 · confidence medium
Jennings v. Smith, 226 Ga. App. 765, 766 (1) ( 487 SE2d 362 ) (1997). 22 When a fiduciary or confidential relationship is not created by law or contract, we must examine the facts of a particular case to determine if such a relationship exists.
discussed Cited as authority (rule) UWork.Com, Inc. v. Paragon Technologies, Inc. (2×)
Ga. Ct. App. · 2013 · confidence medium
(Citation and punctuation omitted.) Jennings v. Smith, 226 Ga. App. 765, 766 (1) ( 487 SE2d 362 ) (1997).
discussed Cited as authority (rule) Paragon Technologies, Inc. v. uwork.com, Inc. (2×)
Ga. Ct. App. · 2013 · confidence medium
(Citation and punctuation omitted.) Jennings v. Smith, 226 Ga. App. 765, 766 (1) ( 487 SE2d 362 ) (1997).
discussed Cited as authority (rule) uwork.com, Inc. v. Paragon Technologies, Inc. (2×)
Ga. Ct. App. · 2013 · confidence medium
(Citation and punctuation omitted.) Jennings v. Smith, 226 Ga. App. 765, 766 (1) ( 487 SE2d 362 ) (1997).
discussed Cited as authority (rule) DAVE LUCAS CO., INC. v. Lewis
Ga. Ct. App. · 2008 · confidence medium
The July 28, 2005 letter states, in part, “This letter is a followup to our earlier discussions and your agreement to correct the problems with the Lewis pool.” 2 Perry v. Perry, 285 Ga. App. 892, 896 (4) ( 648 SE2d 193 ) (2007). 3 See Cook Farms, Inc. v. Bostwick, 165 Ga. App. 692, 694 (3) ( 302 SE2d 574 ) (1983). 4 See Jordan v. Trower, 208 Ga. App. 552, 554 (2) ( 431 SE2d 160 ) (1993). 5 See Harrell v. State, 241 Ga. 181, 183-186 (1) ( 243 SE2d 890 ) (1978). 6 See Jordan, supra at 553-554 (2). 7 (Emphasis omitted.) Hudgins v. Bacon, 171 Ga. App. 856,859 (1) ( 321 SE2d 359 ) (1984). 8 (C…
discussed Cited as authority (rule) Almond v. McCranie (2×)
Ga. Ct. App. · 2007 · confidence medium
Jennings v. Smith, 226 Ga. App. 765, 766 (1) ( 487 SE2d 362 ) (1997).
discussed Cited as authority (rule) BTL COM LTD., CO. v. Vachon
Ga. Ct. App. · 2006 · confidence medium
See Jamal v. Hussein, 237 Ga. App. 779, 785 (3) ( 515 SE2d 407 ) (1999); Plane v. Uniforce MIS Svcs. of Ga., 232 Ga. App. 757, 760 (1) ( 503 SE2d 621 ) (1998); Jennings v. Smith, 226 Ga. App. 765, 766 (1) ( 487 SE2d 362 ) (1997).
discussed Cited as authority (rule) Beasley v. a Better Gas Co., Inc.
Ga. Ct. App. · 2004 · signal: cf. · confidence medium
Cf. Jennings v. Smith, 226 Ga. App. 765, 767 (1) ( 487 SE2d 362 ) (1997) (corporate officers personally supervised the site of allegedly negligent construction); Brown v. Rentz, 212 Ga. App. 275, 277 (2) ( 441 SE2d 876 ) (1994) (accord); Towt v. Pope, 336 P2d 276, 282 (Cal. App. 1959) (affirming nonsuit against employee injured in an industrial accident who sued corporate officer on grounds that the officer failed to instruct the employee relative to safety, noting that, in the absence of active participation in an act of misfeasance, generally an officer of a corporation is not personally lia…
cited Cited as authority (rule) CEASAR Et Al. v. SHELTON
Ga. Ct. App. · 2004 · confidence medium
Auth., 177 Ga. App. 499, 500 (1) ( 339 SE2d 770 ) (1986). 7 See Jennings v. Smith, 226 Ga. App. 765, 766 (1) ( 487 SE2d 362 ) (1997).
discussed Cited as authority (rule) Mitchell v. Gilwil Group, Inc.
Ga. Ct. App. · 2003 · confidence medium
Jennings v. Smith, 226 Ga. App. 765, 766 (1) ( 487 SE2d 362 ) (1997). *885 Consequently, the allegations regarding Mitchell’s personal misrepresentations in Georgia are sufficient to vest the trial court with jurisdiction.
discussed Cited as authority (rule) Runion v. Hofer
Ga. Ct. App. · 2000 · confidence medium
J., and Smith, P. J., concur. 1 Prior to jury deliberations, the fraud claim was dismissed except for a claim of passive concealment against Sherry Runion. 2 In a consent order entered a few days before trial, the Hofers agreed to dismiss their claims for punitive damages. 3 Parks v. Breedlove, 241 Ga. App. 72 (1) ( 526 SE2d 137 ) (1999). 4 Hendon v. Superior Roofing Co., 242 Ga. App. 307, 308 (1) ( 528 SE2d 548 ) (2000). 5 (Punctuation omitted.) Tattersall Club Corp. v. White, 232 Ga. App. 307, 312 (2) ( 501 SE2d 851 ) (1998). 6 Baker v. Miller, 265 Ga. 486 (2) ( 458 SE2d 621 ) (1995). 7 See …
cited Cited as authority (rule) Little Tree, Inc. v. Fields
Ga. Ct. App. · 1999 · confidence medium
Jennings v. Smith, 226 Ga. App. 765, 766-767 (1) ( 487 SE2d 362 ).
discussed Cited as authority (rule) Wilson v. Phillips (2×) also: Cited "see, e.g."
Ga. Ct. App. · 1998 · confidence medium
Thus, the Wilsons failed to show that Phillips knew about this burial pit, or witnessed it being covered up, or participated in concealing it. 1 Compare Jennings v. Smith, 226 Ga. App. 765, 766-767 (1) ( 487 SE2d 362 ) (1997) (summary judgment reversed where evidence showed that defendant actively participated in supervising the concealment of construction defects).
discussed Cited "see" Garcia v. Chrysler Group LLC (2×)
S.D.N.Y. · 2015 · signal: see · confidence high
See Jennings, 226 Ga.App. at 766-67 , 487 S.E.2d 362 ; Ben Farmer Realty, 441 S.E.2d at 423 .
discussed Cited "see" Plane v. Uniforce MIS Services of Georgia, Inc. (2×)
Ga. Ct. App. · 1998 · signal: see · confidence high
See Jennings v. Smith, 226 Ga. App. 765, 766 (1) ( 487 SE2d 362 ) (1997).
discussed Cited "see" Chemtall, Inc. v. Citi-Chem, Inc. (2×)
S.D. Ga. · 1998 · signal: accord · confidence high
Weir v. McGill, 203 Ga.App. 431, 432 , 417 S.E.2d 57 (1992); accord Jennings v. Smith, 226 Ga.App. 765, 766 , 487 S.E.2d 362 (1997).
discussed Cited "see, e.g." Alexander v. Hulsey Environmental Services, Inc. (2×)
Ga. Ct. App. · 2010 · signal: see also · confidence medium
See also OCGA § 41-1-1. 5 Jennings v. Smith, 226 Ga. App. 765, 767 (1) ( 487 SE2d 362 ) (1997). 6 Coffer v. Bradshaw, 46 Ga. App. 143, 146-147 ( 167 SE 119 ) (1932).
discussed Cited "see, e.g." Douglas v. Bigley (2×)
Ga. Ct. App. · 2006 · signal: see also · confidence medium
Joel, Attorney at Law, P.C. v. Chastain, 254 Ga. App. 592, 596-597 (1) ( 562 SE2d 746 ) (2002). 9 See Glisson v. Freeman, 243 Ga. App. 92, 99 (1) ( 532 SE2d 442 ) (2000) (requirements of good faith demand that fiduciary make known all material facts concerning the transactions and subject matter of the confidential relationship); see also Jennings v. Smith, 226 Ga. App. 765, 766 (1) ( 487 SE2d 362 ) (1997) (“ ‘An officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor, and an officer of a corporation who takes no part in the comm…
discussed Cited "see, e.g." Reheis v. Baxley Creosoting & Osmose Wood Preserving Co. (2×)
Ga. Ct. App. · 2004 · signal: compare · confidence low
Compare Jennings v. Smith, 226 Ga. App. 765, 766 (1) ( 487 SE2d 362 ) (1997) (corporate officer who participates in the commission of a tort by the corporation is personally liable). 3 (Footnote omitted; emphasis in original.) Ins.
discussed Cited "see, e.g." Ali v. Fleet Finance, Inc. (2×)
Ga. Ct. App. · 1998 · signal: compare · confidence medium
Compare Jennings v. Smith, 226 Ga. App. 765, 767-768 (2) ( 487 SE2d 362 ) (1997).
Jennings
v.
Smith
A97A0848.
Court of Appeals of Georgia.
Apr 30, 1997.
487 S.E.2d 362
Charles F. Peebles, for appellant., Mark A. Smith III, for appellee.
Blackburn, Smith, Pope, Johnson.
Cited by 26 opinions  |  Published
Blackburn, Judge.

Maneóla S. Jennings appeals the trial court’s grant of summary judgment in favor of Mark A. Smith, Jr., on her claims for negligent construction and fraudulent concealment. For the reasons discussed below, we reverse the trial court’s ruling.

In February 1991, Jennings agreed to purchase a house built by Roswell Properties, Inc. Smith was vice-president and 50 percent shareholder of Roswell Properties, and executed the purchase and sale contract on behalf of the corporation.

After closing on the sale of the house, Jennings claims she discovered several structural defects, including a cracking driveway, leaks, and soil erosion near a retaining wall. Jennings also claims that there was severe settlement of the house, cracks and shifting of the walls and floors, a defective deck, and other problems. Jennings[*766] asked Roswell Properties to repair many of these problems, and claims that the repairs were unsatisfactory. Jennings sued Roswell Properties and Smith, asserting claims of negligent construction and fraudulent concealment, and appeals the grant of summary judgment to Smith. [1]

1. Jennings contends that material issues of fact remain as to whether Smith can be held personally liable on the basis that he took part in or supervised the corporation’s negligent acts. “[A]n officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor, and an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or cooperated therein.” (Punctuation omitted.) Cherry v. Ward, 204 Ga. App. 833, 834 (1) (a) (420 SE2d 763) (1992); see also Brown v. Rentz, 212 Ga. App. 275, 276 (441 SE2d 876) (1994).

Jennings’ claim for negligent construction is based in part upon her contention that Roswell Properties buried construction trash and debris under the property, causing damage to the house and driveway when the soil settled. John Collins, a neighbor, submitted an affidavit stating that he had seen workers, in Smith’s presence, dumping trash and construction debris from other construction sites under the area where Jennings’ driveway, garage, front porch, and foundations were built. He further stated that, after the debris was covered with dirt, he saw workers construct the driveway, garage, and front portion of the residence over the areas where the debris had been buried. He stated that it appeared Smith was directing the placement of the fill and dirt over the debris.

At his deposition, Smith’s attorney challenged many of the details of Collins’ affidavit. Collins admitted that the foundation of the house and garage had already been laid when he saw the debris being deposited. However, he reaffirmed the remainder of his affidavit. Although Smith’s attorney attempted to discredit Collins by showing that he could not have observed Smith at the property, for purposes of summary judgment all facts must be construed and all reasonable inferences drawn in favor of Jennings.

There was also evidence that Smith supervised and directed repairs to the property. Catherine Hohlstein, a real estate agent, testified that she had seen Smith personally instructing a worker in how to repair a leak in the basement and a crack in the garage floor. Jennings testified that she had seen Smith personally supervising[*767] workers repairing leaks in the garage walls, repairing cracks and correcting settlement problems in the driveway, constructing the rear deck, and filling sinkholes in the property.

Given this evidence, if a jury found the corporation negligent in constructing or repairing the house, it could also find Smith personally liable for such negligence because he specifically directed or participated in the construction and repairs. See Brown, supra, 212 Ga. App. 275 (reversing grant of summary judgment to corporate officer on claim of negligent construction); Weir v. McGill, 203 Ga. App. 431, 432-433 (3) (417 SE2d 57) (1992).

Smith’s contention that there was ho evidence of negligence is without merit. Syd Mostajabi, a project engineer and soils expert who conducted bore samples of the soils around the house, testified that the front porch had partially separated from the house due to inadequate stability of the underlying soils. He further testified that a bore sample revealed organic soils and buried trash underneath the area. He stated that he observed construction debris, uncompacted soils, and voids in the area under the driveway. He testified that backfilling of such area by the contractor would constitute a violation of the applicable building codes.

Ronald Fournier, a civil engineer and expert in home inspection, testified that cracks in the garage and driveway and a sinkhole in the driveway were caused by settlement resulting from inadequate compaction of the soil. He testified that cracks in the masonry veneer in the house were caused by differential settlement. He also testified that the rear deck was constructed with a defective support post foundation in violation of the building code. Accordingly, there was evidence from which the jury could find negligent construction, and the court erred in granting summary judgment to Smith on the negligent construction claim.

2. The trial court also erred in granting Smith’s motion for summary judgment with respect to Jennings’ claims for fraudulent concealment.

“[F]raud in the sale of real estate may be predicated upon ... a passive concealment where the seller does nothing to prevent the discovery but simply keeps quiet about a defect which though not readily discernible, is known to the seller. . . . [The seller has] a duty to disclose a defect of which he knows but is aware that the purchaser is ignorant of the condition and which probably would affect the decision of the purchaser to close the transaction.” (Punctuation omitted.) Ben Farmer Realty v. Woodard, 212 Ga. App. 74, 75 (441 SE2d 421) (1994); see also Wilhite v. Mays, 140 Ga. App. 816 (232 SE2d 141) (1976).

As discussed above, there was evidence that Smith personally supervised and directed the dumping of construction debris in the[*768] ground, and failed to reveal this fact to Jennings. The presence of buried debris in the ground is not the type of fact which would be readily discernible by a purchaser. If the jury found that the presence of the debris caused ground settlement contributing to the property damage, it would be authorized to find for Jennings on this claim. Accordingly, the court erred in granting summary judgment to Smith.

Decided April 30, 1997. Reconsideration denied June 11, 1997 Before Judge Smith. Charles F. Peebles, for appellant. Mark A. Smith III, for appellee.

Judgment reversed.

Pope, P. J., and Johnson, J, concur.
1

Jennings also asserted claims for breach of contract against Roswell Properties, but not against Smith personally. Roswell Properties did not file a motion for summary judgment and is not a party to this appeal.