Goldsmith v. Peterson
307 Ga. App. 26
| Ga. Ct. App. | 2010Background
- May 23, 2006 Purchase and Sales Agreement for a $469,000 property; earnest money of $7,500; conditioned on Goldsmiths obtaining 90% loan at 6.5% per annum.
- Agreement defined 'ability to obtain a loan' by lender underwriting criteria and obligated closing if able to obtain loan on same terms or any approved loan.
- Goldsmiths obtained SunTrust preapproval within two days but chose a two-loan structure to avoid mortgage insurance and ultimately did not purchase.
- Petersons counterclaimed for $93,000 in damages and attorney fees; jury awarded $3,000 and $28,388.45 in attorney fees; trial court denied post-trial motions.
- Goldsmiths argued the liquidated damages provision limited recovery to the escrow; Petersons argued waiver of liquidated damages occurred.
- Court affirms in part, reverses in part, and remands for further proceedings on attorney fees and waiver issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of liquidated damages provision | Goldsmiths did not waive the liquidated damages term. | Petersons claim waiver occurred because Goldsmiths pursued escrow recovery. | Waiver not established; trial court erred in submitting waiver to jury. |
| Attorney fees under OCGA 13-6-11 and 51-7-81 | Petersons properly sought fees under 13-6-11; 51-7-81 claim premature. | Fees authorized and properly pleaded under 13-6-11; 51-7-81 arguments valid. | Fees under 13-6-11 properly submitted; 51-7-81 claim premature; remand for new trial on attorney fees. |
| Admission of hearsay and its basis | Hearsay should have been excluded. | Statement admitted as res gestae or necessity. | Hearsay admission sustained under res gestae exception. |
| Jury access to original Purchase and Sales Agreement during deliberations | Original document should not have been shown to jurors. | Copy admitted; original shown only for limited purpose with limiting instructions. | No reversible error; no demonstrated harm from allowing access to original. |
Key Cases Cited
- Forsyth County v. Waterscape Svcs., 303 Ga.App. 623 (2010) (waiver requires intentional relinquishment of a known right)
- Woodhull Corp. v. Saibaba Corp., 234 Ga.App. 707 (1998) (affirmation of contract bars further contract or tort damages)
- Ishak v. First Flag Bank, 283 Ga.App. 517 (2007) (evidence reliance on hearsay exception requires necessity and trustworthiness)
- Patel v. State, 278 Ga. 403 (2004) (res gestae admissibility considerations for contemporaneous statements)
- Kirsch v. Meredith, 211 Ga.App. 823 (1994) (ambulatory attorney fees under abusive litigation statutes)