MILLER, P. J., ANDREWS and BROWN, JJ.
Miller, Presiding Judge.
Charles Tate and Kevin Gleason entered into a purchase and
sale agreement to purchase Kim Miller's house, the sale
fell through, and Tate and Gleason (collectively "the
buyers") filed suit against Miller for breach of
contract. Following a trial, the jury found in favor of the
buyers, and the trial court denied Miller's motion for
judgment notwithstanding the verdict ("JNOV").
Thereafter, the trial court ordered specific performance of
the contract to purchase the property. Miller now appeals.
After a thorough review of the record, we conclude that the
trial court erred in denying the motion for JNOV because the
delay in closing the purchase was attributable to the buyers
and, therefore, the buyers were in breach of the contract and
were not entitled to specific performance. Accordingly, we
[O]n appeal from a trial court's rulings on motions for
directed verdict and judgment notwithstanding the verdict, we
review and resolve the evidence and any doubts or ambiguities
in favor of the verdict; directed verdicts and judgments
notwithstanding the verdict are not proper unless there is no
conflict in the evidence as to any material issue and the
evidence introduced, with all reasonable deductions
therefrom, demands a certain verdict.
(Citations and punctuation omitted.) Fertility Tech.
Resources, Inc. v. Lifetek Medical, Inc., 282 Ga.App.
148, 149 (637 S.E.2d 844) (2006); see also OCGA §
9-11-50 (a) ("If there is no conflict in the evidence as
to any material issue and the evidence introduced, with all
reasonable deductions therefrom, shall demand a particular
verdict, such verdict shall be directed.").
viewed, the evidence shows that Tate and Gleason entered into
a business together in which they would purchase properties
to renovate and resell. In July 2013, Miller put his property
in the Virginia-Highland part of Atlanta on the
market. On July 22, 2013, Tate and Miller entered
into a purchase and sale agreement ("the
Agreement") in which Tate agreed to buy Miller's
property for $487, 400 cash, with closing scheduled for
August 15, 2013. A few days later, the parties amended the
Agreement to add Gleason's name as a buyer. Although
Miller had accepted Tate's offer, he began regretting his
decision to sell the property.
Agreement provided for an extension of the closing date by
either party unilaterally if "Buyer's mortgage
lender, if any, (including in "all cash"
transactions) or the closing attorney cannot fulfill their
respective obligations by the date of the closing,
provided that the delay is not caused by the
Buyer." (the "unilateral extension
clause") (Emphasis supplied.) The Agreement further
provided, "[a]ll parties agree to do all things
reasonably necessary to timely and in good faith fulfill the
terms of this Agreement."
the time the property went under contract and the date of the
closing, the parties engaged in negotiations to (i) extend
the closing date, (ii) remove certain contingencies from the
Agreement, and (iii) remove Tate's name as a buyer in the
Agreement. The parties, however, were unable to reach any
consensus on these amendments, and none of the amendments
were signed. Therefore, both Tate and Gleason continued to be
named as the buyers on the Agreement.
Tate remained a party to the Agreement, and the Agreement
specified that it was a cash sale, Gleason obtained a
mortgage loan for the purchase. Gleason asked the bank's
closing attorney if it was acceptable if only he, and not
Tate, was listed on the deed. The bank's closing attorney
advised Gleason that it was acceptable. Gleason testified
that, had he be instructed that the deed required both names,
he would not have asked the bank's closing attorney to
prepare the deed with his name alone. It is undisputed,
however, that the closing documents were prepared as Gleason
directed and that he and Tate wanted the deed and loan to be
in Gleason's name only for purposes of their business.
August 13, 2013, the closing attorney emailed Miller copies
of the closing documents, which he had previously requested.
Those documents were solely in Gleason's name.
August 15, Miller arrived at the closing and asked to see the
deed. He then spoke briefly with his own attorney before
advising the closing attorney that he would not sign the
documents to complete the sale because the deed was only in
Gleason's name. Although the closing attorney testified
that she could have contacted Tate regarding the possibility
of him signing the closing documents through a power of
attorney, the bank would have had to approve this change, and
there was no testimony at trial that the documents could have
been amended on the day of the closing. Ultimately, the deed
was not amended by the end of the closing day, and Miller did
not sign the documents.
buyers sought to invoke the unilateral extension clause and
reschedule the closing for August 22 in order to amend the
deed and closing documents so that both Tate and Gleason were
named. Although the lender and closing attorney had the
corrected documents prior to the rescheduled closing date,
Miller did not attend that closing.
thereafter, the buyers filed the instant suit claiming breach
of contract. Miller counterclaimed for breach of contract.
The jury found in the buyers' favor, and the trial court
denied Miller's motion for JNOV. Miller now appeals.
Miller contends that there was insufficient evidence to
support the jury's verdict because the closing was
delayed due to Gleason's own conduct and thus Gleason was