ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE
Behdadnia appeals the trial court's grant of a motion to
dismiss in favor of E. E. Beavers Family Partnership, L.P.
(Beavers) Behdadnia seeks specific performance of a land sale
contract and argues that the trial court erred in holding
that his failure to tender the purchase price or to schedule
a closing barred his requested relief. Because it is unclear
whether the trial court relied on evidence outside of the
pleadings in granting Beavers's motion to dismiss, we
vacate the trial court's judgment and remand the case for
further proceedings consistent with this opinion.
Under OCGA § 9-11-12 (b) (6), a motion to dismiss for
failure to state a claim upon which relief can be granted
should not be sustained unless (1) the allegations of the
complaint disclose with certainty that the claimant would not
be entitled to relief under any state of provable facts
asserted in support thereof; and (2) the movant establishes
that the claimant could not possibly introduce evidence
within the framework of the complaint sufficient to warrant a
grant of the relief sought. In deciding a motion to dismiss,
all pleadings are to be construed most favorably to the party
who filed them, and all doubts regarding such pleadings must
be resolved in the filing party's favor.
Racette v. Bank of America, N.A., 318 Ga.App. 171,
171-172 (733 S.E.2d 457) (2012) (citation omitted). See
also Scott v. Scott, 311 Ga.App. 726, 729 (1) (716
S.E.2d 809) (2011) ("[I]t is no longer necessary for a
complaint to set forth all of the elements of a cause of
action in order to survive a motion to dismiss for failure to
state a claim. If, within the framework of the complaint,
evidence may be introduced which will sustain a grant of
relief to the plaintiff, the complaint is sufficient."
(citations and punctuation omitted)). "A copy of any
written instrument which is an exhibit to a pleading is a
part thereof for all purposes." OCGA § 9-11-10 (c).
Therefore, "on a motion to dismiss, the trial court can
consider exhibits attached to and incorporated into the
complaint. To the extent that there is any discrepancy
between the allegations in the complaint and the exhibits
attached to it, the exhibits control." Racette,
318 Ga.App. at 172 (citations omitted). This Court reviews de
novo a trial court's ruling on a motion to dismiss.
Walker Co. v. Tri-State Crematory, 292 Ga.App. 411,
411 (664 S.E.2d 788) (2008).
by these principles, we turn to the complaint and the
exhibits attached to it that were filed in this case. The
complaint alleges that on July 15, 2016, Behdadnia entered
into a sales agreement with Beavers for the purchase of a
shopping mall plaza. In consideration of the sales agreement,
Behdadnia paid $5, 000 in earnest money to Beavers and
"put[ ] up more than $450, 000 dollars" of the
$525, 000 purchase price. Behdadnia also paid for an
environmental assessment of the property. Following a meeting
between the parties to discuss expenses related to the
ownership and management of the property, Behdadnia alleges
that Beavers terminated the sales agreement. In response,
Behdadnia sought specific performance of the sales contract.
Paragraph 8 of the Sales Agreement for the property provides
in part that
If the sale of the Property contemplated hereby is not
consummated in accordance with the terms and conditions of
this Agreement due to any circumstances or conditions other
than a default by Purchaser hereunder, the Earnest Money
shall be refunded to Purchaser promptly upon request, and
Purchaser may exercise such rights and remedies as many be
provided for or allowed by law or in equity including, but
not limited to, the right to sue for specific performance.
moved to dismiss Behdadnia's complaint for failure to
state a claim upon which relief could be granted. After
conducting a hearing,  the trial court entered an order granting
Beavers' motion to dismiss the complaint. This appeal
first argues that the trial court erred in holding that his
failure to tender the purchase price for the property barred
his action for specific performance.
order to support a suit by a purchaser for specific
performance of a contract for the purchase and sale of land,
the purchaser must have paid the purchase money in accordance
with the terms of the contract, or made an unconditional
tender thereof before the initiation of the action."
Kirk v. First Ga. Inv. Corp., 239 Ga. 171, 173 (236
S.E.2d 254) (1977) (citation omitted). See also Covington
v. Countryside Inv. Co., Inc., 263 Ga. 125, 126 (1) (428
S.E.2d 562) (1993) ("party seeking specific performance
of a contract must show substantial compliance with his part
of the agreement" (citation omitted)). "An offer to
pay the purchase price on delivery of a properly executed
deed is not an unconditional tender." McLoon v.
McLoon, 220 Ga. 18, 20 (2) (a) (136 S.E.2d 740) (1964)
tender is excused or waived where the seller, by conduct or
declaration, proclaims that if a tender should be made,
acceptance would be refused. The law does not require a
futile tender or other useless act." Krieger v.
Bonds, 333 Ga.App. 19, 28 (1) (775 S.E.2d 264) (2015)
(citations omitted). See also Marsh v. Baird, 203
Ga. 819, 820 (4) (48 S.E.2d 529) (1948). "[S]o long as
the contract for the sale of land is in writing, signed by
the other party, is certain and fair, for adequate
consideration, and capable of being performed, a court of
equity can decree that it be specifically performed."
Fox Run Properties, LLC v. Murray, 288 Ga.App. 568,
573 (2) (b) (654 S.E.2d 676) (2007) (citation and punctuation
Behdadnia does not claim to have paid the purchase money in
accordance with the terms of the contract. But Behdadnia
claims in his verified complaint to have "put[ ] up more
than $450, 000 dollars" of the $525, 000 purchase
price. It is unclear whether this means that
Behdadnia made an unconditional tender of the $400, 000 (or
more) due under the Sales Agreement. Ordinarily, when
considering an appeal from an order on a motion to dismiss,
we would construe this ambiguity in the complaint in
Behdadnia's favor. See Racette, 318 Ga.App. at
172. However, following a hearing on the matter, the trial
court found that Behdadnia did not pay or tender the purchase
money as called for under the sales contract. Because
Behdadnia failed to include a transcript of that hearing, it
is unclear to us whether the trial court relied on
testimonial evidence outside of the pleadings in arriving at
its conclusion, thus converting the motion to one for summary
judgment. See Cox Enterprises, Inc. v. Nix, 273 Ga.
152, 153 (538 S.E.2d 449) (2000). For this reason, we must
vacate the trial court's order granting Beavers'
motion to dismiss and remand the case for reconsideration in
accordance with this opinion.
vacated and case remanded.
Ellington, P. J., and Senior Appellate Judge ...