Moore v. Humble

368 Ga.App. 672

890 S.E.2d 28

MOORE v. HUMBLE ; and vice versa.

A23A0204, A23A0205

Court of Appeals of Georgia.

June 21, 2023

Review Denied July 11, 2023

Susan Dalton Raymond, Carmel W. Sanders, Macon, for Appellant in A23A0204.

Charles R. Adams III, Kice H. Stone, Macon, for Appellee in A23A0204.

Charles R. Adams III, Kice H. Stone, Macon, for Appellant in A23A0205.

Susan Dalton Raymond, Carmel W. Sanders, Macon, for Appellee in A23A0205.

Markle, Judge.

These related cases arise from Diana Humble's claims for breach of promise to marry and fraud in the inducement against Malcolm Sidney Moore, Jr. after she ended their engagement due to Moore's indiscretions. In Case No. A23A0204, Moore challenges the trial court's denial of his motions for partial summary judgment on these claims. In Case No. A23A0205, Humble challenges the trial court's denial of her motions to compel and to reopen discovery. For the reasons that follow, we reverse the trial court's denials of partial summary judgment in A23A0204, but affirm the trial court's judgment in A23A0205.

Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Steward v. Arandia , 360 Ga. App. 356, 357, 861 S.E.2d 206 (2021).

So viewed, the record shows that the parties began a romantic relationship in 2013, and Humble moved in with Moore the following year. Although the couple discussed the possibility of marriage, it is undisputed that Moore repeatedly informed Humble that he would not marry her without a prenuptial agreement. In 2016, Moore presented Humble with an engagement ring, of which they each contributed half the cost. The couple held themselves out as being engaged, although they did not set a wedding date. The prenuptial agreement was never executed as they were unable to agree to its terms. In late 2018, Humble broke off the engagement after finding text messages on Moore's phone to other women containing sexually explicit content and solicitations to engage in sexual acts.

Humble then sued Moore for breach of promise to marry, fraud, trover, and punitive damages. ¹ During the course of litigation, Moore objected to many of Humble's discovery requests, including those for the production of multiple business and financial documents, and for the inspection of his electronic devices, as well as third-party requests to credit institutions, cell phone service providers, and hotels, among others. Moore filed a motion for a protective order and Humble then filed a motion to compel. The trial court granted Moore a protective order and denied Humble's motion to compel, limiting discovery. ²

Moore filed motions for partial summary judgment on the claims for breach of promise and fraud, contending that it was Humble who had breached the promise to marry by breaking off the engagement; the marriage was conditioned on the prenuptial agreement, which was never executed; and, therefore, Humble could not justifiably rely on the promise to marry. Humble moved to reopen discovery under OCGA § 9-11-56 (f), ³ now arguing that the previously denied discovery was needed in light of Moore's repeated assertion of his right against self-incrimination at his deposition. Following a hearing, the trial court denied Humble's motion to reopen discovery, and also denied Moore's motions for partial summary judgment.

The trial court granted Moore a certificate of immediate review as to the denial of summary judgment, and we granted his application for interlocutory appeal. Humble then filed a cross-appeal, challenging the trial court's unfavorable rulings on her two discovery motions. ⁴ These appeals followed.

Case No. A23A0204

1. Moore contends that the trial court erred by denying his motion for summary judgment as to the claim for breach of promise to marry because the prenuptial agreement was a condition precedent, and its absence renders the promise unenforceable. We agree.

"Breach of promise to marry is a common law contract action. ^{[5 ]} By the very nature of the action, there must be an actual promise to marry and acceptance of that promise before one can be held liable for a breach." (Citation and punctuation omitted.) Finch v. Dasgupta , 251 Ga. App. 637, 638 (2) (a), 555 S.E.2d 22 (2001) ; see also Thorpe v. Collins , 245 Ga. 77, 78 (1), 263 S.E.2d 115 (1980). It follows that general contract principles apply to this claim. See, e.g., Kelley v. Cooper , 325 Ga. App. 145, 146 (1), 751 S.E.2d 889 (2013) (applying rules of contract law to breach of promise to marry claim).

[C]onditions precedent ... are created by language such as "on condition that," "if," and "provided," or by explicit statements that certain events are to be construed as conditions precedent. In determining whether a contract contains a condition precedent, we look to the language of the agreement itself. If the language is plain and unambiguous and the intent may be clearly gathered therefrom, we need look no further. ^{[6 ]}

(Citations and punctuation omitted.) Hall v. Ross , 273 Ga. App. 811, 813, 616 S.E.2d 145 (2005). Conditions precedent "must be performed before the contract becomes absolute and obligatory upon the other party." OCGA § 13-3-4. Although conditions precedent are generally not favored under Georgia law, "where the language of the contract clearly creates such a condition, that condition must be enforced." Allen v. Sea Gardens Seafood , 290 Ga. 715, 717 (2), 723 S.E.2d 669 (2012) ; Hall , 273 Ga. App. at 813, 616 S.E.2d 145 ; OCGA § 13-3-4.

Guided by these principles of contract construction, we conclude that Moore's promise to marry Humble is unenforceable due to the parties’ failure to execute the prenuptial agreement. Importantly, it is undisputed that, at all times — both prior to their engagement and after—Moore informed Humble that he would not marry her unless a prenuptial agreement was executed. As such, his promise to marry contained a condition precedent. See Hall , 273 Ga. App. at 813, 616 S.E.2d 145. It is also undisputed that the parties failed to mutually assent to the terms of any prenuptial agreement, and one was never executed. Consequently, the failure to perform the condition precedent rendered the promise to marry unenforceable. See id. ; OCGA § 13-3-4.

Accordingly, we reverse the trial court's denial of summary judgment to Moore on the breach of promise to marry claim. ⁷

2. Moore next argues that the trial court's denial of his motion for summary judgment on Humble's claim for fraudulent inducement was error because there is no evidence of record to show that he did not intend to marry her, so long as the prenuptial agreement was in place. Because Humble cannot show that Moore did not intend to marry her at the time of the engagement, we agree.

Humble's fraud claim is based on her allegations that Moore only asked her to marry him because he desired her constant companionship and services, but never actually intended to marry her. We thus characterize this claim as one for fraudulent inducement. Generally, a fraud claim cannot be based on a promise to perform an act in the future; however, "an exception to this rule exists where a promise as to future events is made with a present intent not to perform or where the promisor knows that the future event will not take place." (Citation omitted.) Kelley , 325 Ga. App. at 148 (3), 751 S.E.2d 889. As we have explained,

[t]o establish a claim for fraud in the inducement, or inceptive fraud to enter into a contract, a plaintiff must prove both that the defendant failed to perform a promised act and that the defendant had no intention of performing when the promise was made. Fraudulent intent at the time of contracting can be inferred based on subsequent conduct of the defendant that is unusual, suspicious, or inconsistent with what would be expected from a contracting party who had been acting in good faith. Actionable fraud, however, does not result from a mere failure to perform promises made. Otherwise any breach of a contract would amount to fraud.

(Citations and punctuation omitted; emphasis supplied.) Clary v. Allstate Fire & Cas. Ins. Co. , 340 Ga. App. 351, 357-358 (4), 795 S.E.2d 757 (2017).

"The tort of fraud, including fraudulent inducement, has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff." (Citation omitted.) Najarian Capital v. Clark , 357 Ga. App. 685, 688-689 (2), 849 S.E.2d 262 (2020). Generally, "fraud may be proved by slight circumstances, and whether a misrepresentation is fraudulent and intended to deceive is generally a jury question." (Citation and punctuation omitted.) Kelley , 325 Ga. App. at 148 (3), 751 S.E.2d 889. However, summary judgment is appropriate where the plaintiff fails to satisfy all of the elements of the claim. See, e.g., Clary , 340 Ga. App. at 358 (4), 795 S.E.2d 757 ; BPP069, LLC v. Lindfield Holdings , 346 Ga. App. 577, 585-586 (2), 816 S.E.2d 755 (2018) (in a case involving the sale of real property, summary judgment in favor of seller affirmed where buyer could not show justifiable reliance on seller's alleged misrepresentations regarding zoning status because "the contract expressly provided that the seller's obligation to convey good and marketable title was subject to zoning").

Here, Humble cannot show that Moore induced her to agree to marry him with a present intent to deceive her at the time of the engagement. See Kelley , 325 Ga. App. at 148 (3), 751 S.E.2d 889 ; Clary , 340 Ga. App. at 357-358 (4), 795 S.E.2d 757. Importantly, the couple had discussed the prenuptial...