questions of fact remained as to whether plaintiff tenants reasonably relied on a tenant landlord’s promises to pay for remediation of a property rather than end a lease
How later courts described this case
- questions of fact remained as to whether plaintiff tenants reasonably relied on a tenant landlord’s promises to pay for remediation of a property rather than end a lease
Written by the judges who cited it.
The opinion
BARNES, Judge,
concurring in part and dissenting in part.
Because I disagree that Mrs. Brown admitted the truth of Mrs. Rader’s allegations concerning the child’s failure to wear a mask, I dissent to Division 1 (c) and (d). I concur fully in Division 2, however, affirming the trial court’s denial of summary judgment to the defendants on the plaintiffs’ promissory estoppel count and reversing the trial court’s grant of summary judgment to the defendants on the plaintiffs’ claim for attorney fees related to that count.
The record shows that the Browns left the house on June 23, and were notified about the toxic mold diagnosis on July 13. On July 21, Mrs. Rader told the Department of Family and Children Services she had seen the family in the house for up to six hours with their son who was not wearing a mask. During her deposition, Mrs. Brown was asked, “Have you spent any night in this house, after June 23?” She responded yes, the family stayed there the weekend of July 4, before they were aware of the mold infestation. She also said the child had *613 been in the premises after July 5, on the days she was there. She explained:
I was there, during the day before we actually had the sampling done, while my husband was at work. We spent a lot of afternoons and nights at his folks’ house. I’d wait for him to get off work. He’d meet me back at the house. There [were] days that if there was something they scheduled for us to be there, I was there. I was there during the landscaping days.
The exchange continued:
Q: Did your child have a mask, while he was there?
A: No, sir.
Q: Ever?
A: Yes, sir.
Q: When?
A: Any of the days we were moving.
Q: Which would have been what date?
A: Starting August 1st through August 5th. He wasn’t thére each of those days, though. I did have sitters a couple of hours here and there.
Mrs. Brown was not asked if her son was at the house without a mask after she knew about the toxic mold on July 13. She was asked if he had been on the premises after July 5, and she said yes, he was in the house with her during the day before the sampling was done. Then she was asked if the child had a mask while he was there, and she said no. This testimony establishes only that the child was at the house without a mask after July 5 hut before the Browns knew about the toxic mold on July 13. In her affidavit, Mrs. Brown testified that, after she received the mold report, her son was never allowed into the house without a mask on and the few times he was there were only for brief periods. This testimony is completely consistent with her deposition testimony, that her son was in the house without a mask before they had the sampling done and that he wore a mask when he was there during some of the days they moved in early August. Accordingly, the Prophecy rule does not apply, Mrs. Brown has not admitted the truth of Mrs. Rader’s allegedly defamatory allegations, and Mrs. Rader is not entitled to immunity under OCGA § 19-7-5 (f). The trial court erred in granting summary judgment to the Raders on the Browns’ defamation claim.
I am authorized to state that Chief Judge Miller and Judge *614 Mikell join in this opinion.
Decided July 10, 2009
Reconsideration denied August 7, 2009
Brennan, Harris & Rominger, Richard J. Harris, for appellant.
Thompson & Smith, Larry I. Smith, for appellee.