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Miller v. Tate

Court of Appeals of Georgia, Second Division

May 24, 2018

MILLER
v.
TATE et al.

          MILLER, P. J., ANDREWS and BROWN, JJ.

          Miller, Presiding Judge.

         After 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 reverse.

[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.").

         So 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.[1] 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.

         The 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."

         Between 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.

         Although 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.

         On 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.

         On 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.

         The 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.

         Shortly 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.

         1. 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 not ...


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