Lead Opinion
These consolidated appeals arise out of the rescission of two written contracts for the purchase and sale of real property. The sellers and property owners were Executive Excellence, LLC, its principal owner Richard R. Fritts, and Sterling Trust Company (collectively “sellers”). The buyers under assignments were Southern Tradition Investments, LLC and Martin Brothers Investments, LLC (collectively “buyers”). In Case No. A10A1745, the sellers appeal the trial court’s order granting summary judgment against them as to their claims for slander of title. In Case Nos. A10A2143 and A10A2144, the buyers and sellers, respectively, appeal the trial court’s orders awarding attorney fees against each party. We affirm the trial court’s summary judgment order because the sellers failed to assert actionable slander of title claims. As to the attorney fees, we affirm in part and reverse in part.
We review de novo a tried court’s grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party. To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, yiewed in the nonmovant’s favor, warrant judgment as a matter of law. A defendant who will not bear the burden of proof at trial need only show an absence of evidence to support an essential element of the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.
(Citations and punctuation omitted.) Latson v. Boaz,
So construed, the record evidence shows that Executive, operated by Fritts, was the owner of a 15-acre tract of undeveloped land in Hall County. A separate four-acre tract was owned by Sterling Trust as Custodian for the Benefit of Richard R. Fritts. On or about December 26, 2006, Fritts executed two contracts to sell the respective tracts to a third party, Sund Enterprises. Although Sterling Trust was listed as the seller on the contract for the four-acre tract, the contract was not executed by any authorized representative of
Sund Enterprises later assigned its rights under the contract to purchase the 15-acre tract to Southern Tradition and assigned its rights under the contract to purchase the four-acre tract to Martin Brothers. Both contracts contained a zoning contingency that provided as follows:
This contract is conditioned on the ability of the Buyer to obtain the rezoning of said property to zoning classification pursuant to the City of Oakwood (Zoned C-2) or Hall County (Zoned HB) Zoning Resolutions so as to permit the construction of Commercial/Highway Business on the property. .. . Buyer agrees to apply for said rezoning within Sixty (60) days of the date of this agreement and Seller agrees to cooperate with the Buyer in obtaining such rezoning. . . . It is expressly understood that in the event a final determination is not made on said application by the City of Oakwood or Hall County, on or before April 1, 2007, either party may rescind this contract by notifying the other party as provided for herein[.]
(Emphasis supplied.) The contract provided that Southern Tradition and Martin Brothers would have until February 26, 2007 to file applications for rezoning in Hall County; they filed the applications on February 23. Fritts executed an owner authorization in support of Southern Tradition’s application. Fritts, however, refused to execute an owner authorization in support of Martin Brothers’s rezoning application, contending that Sterling Trust had not agreed to the contract and that he lacked authority to sign the documents on behalf of Sterling Trust. Martin Brothers did not send the contract or zoning documents to Sterling Trust for approval and execution.
The Hall County Planning Commission established a schedule for the procedural handling of the applications. According to the schedule, Southern Tradition’s rezoning application would not be heard until the Planning Commission’s meeting on April 2, 2007 and the Board of Commissioners meeting on April 26, 2007, which was after the rezoning deadline designated in the contracts. On March 28, 2007, counsel for Southern Tradition and Martin Brothers sent letters to Fritts, stating that they were unilaterally removing the zoning contingency from the contracts. Fritts objected, asserting that the zoning contingency could not be unilaterally removed.
Southern Tradition and Martin Brothers failed to obtain a final determination on their rezoning applications by the April 1, 2007 deadline. On April 25, 2007, counsel for Executive sent a letter to counsel for Southern Tradition rescinding the contract based upon
Southern Tradition and Martin Brothers continued to pursue a rezoning of the properties and enforcement of the contracts. At the Hall County Board of Commissioners meeting held on April 26, 2007, the agent for Southern Tradition and Martin Brothers allegedly stated to third parties that they intended to pursue enforcement of the contracts for the properties “in order to teach [Fritts] a lesson and that [they] had enough money to do so.” At a subsequent Board of Commissioners meeting on May 24, 2007, the Hall County attorney, who also was a partner at the law firm representing Southern Tradition and Martin Brothers, openly stated that there was active litigation involving the properties. On October 8, 2007, the agent for Southern Tradition and Martin Brothers allegedly stated to third parties that they “had enough money to keep the [properties] tied-up in litigation for the next 5 to 10 years.”
Southern Tradition filed suit against Executive, asserting claims for contract reformation, specific performance, and attorney fees. Southern Tradition alleged that the April 1 rezoning deadline was a scrivener’s error and that it was entitled to have the contract reformed to reflect the parties’ intent to provide a later deadline of June 1, 2007. Similarly, Martin Brothers filed suit against Fritts and Sterling Trust, asserting claims for contract reformation, declaratory judgment, mandatory injunction, specific performance, fraud, and attorney fees. Martin Brothers likewise alleged that the April 1 rezoning deadline was a scrivener’s error that did not embody the parties’ intent to provide for a June 1, 2007 deadline. In addition, Martin Brothers alleged that Fritts had fraudulently misrepresented that he had authority to execute the contract to sell the property on behalf of Sterling Trust. In conjunction with filing the lawsuits, Southern Tradition and Martin Brothers filed notices of lis pendens identifying the lawsuits, the relief sought, and the properties subject to the lawsuits.
Executive, Fritts, and Sterling Trust filed answers denying the material allegations in the complaints. They also filed counterclaims seeking damages and attorney fees for slander of title, pertinently alleging that Southern Tradition and Martin Brothers had maliciously impugned their title to the properties by filing the notices of lis pendens and by making the statements to third parties at the Board of Commissioners meetings.
Executive, Fritts, and Sterling Trust filed a motion for summary
Following the disposition of the substantive claims of the lawsuit, the parties filed motions for attorney fees under OCGA § 9-15-14. The trial court also granted each of these motions, finding that each party had presented claims that lacked substantial justification and failed to set forth a justiciable issue of law or fact. The instant appeals ensued.
Case No. A10A1745
1. Executive, Fritts, and Sterling Trust contend that the trial court erred in granting summary judgment in favor of Southern Tradition and Martin Brothers as to their counterclaims for slander of title. The contention is without merit.
Under OCGA § 51-9-11, “[t]he owner of any estate in lands may bring an action for libelous or slanderous words which falsely and maliciously impugn his title if any damage accrues to him therefrom.” To establish a claim for the slander of title tort in accordance with the statute, the plaintiff must prove: (1) publication of slanderous or libelous statements; (2) that the statements were false and malicious; (3) that the plaintiff sustained special damages thereby; and (4) that the plaintiff possessed an estate in the property slandered or libeled. See Premier Cabinets v. Bulat,
(a) Lis Pendens. The notices of lis pendens filed by Southern Tradition and Martin Brothers in conjunction with their complaints were privileged and therefore, could not serve as the basis for the slander of title claim. The privilege is set out at OCGA § 51-5-8:
All charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous.
A valid and effective lis pendens filed in a court of competent
Executive, Fritts, and Sterling Trust nevertheless contend that Southern Tradition and Martin Brothers committed the tort by continuing to maintain the lis pendens after they filed a voluntary dismissal without prejudice as to their claims in the lawsuit. Their contention is without merit.
“The phrase ‘lis pendens’ means, literally, pending suit.” (Citation omitted.) Vance v. Lomas Mtg. USA,
Although Southern Tradition and Martin Brothers filed a voluntary dismissal without prejudice as to their claims presented in the lawsuits, such did not finalize all claims in the lawsuit since the counterclaim for slander of title filed by Executive, Fritts, and Sterling Trust remained pending for resolution. But even if we were to hold that the trial court’s clerk should have marked the voluntary dismissal on the face of the notices of lis pendens in accordance with OCGA § 44-14-612, the clerk’s failure to do so would not authorize a recovery against Southern Tradition and Martin Brothers under a slander of title claim. The filed notices of lis pendens were valid and were privileged. See Alcovy Properties, supra; Panfel, supra. There is
(b) Statements to Third Parties. The slander of title claim was further based upon statements allegedly made by the agents of Southern Tradition and Martin Brothers to third parties at Hall County Board of Commissioners meetings. In support of their claim, the sellers presented an affidavit from Winston Clark, who attested that he attended the Board of Commissioners meetings on behalf of Executive. Clark further attested that in the presence of himself and third parties at the Board of Commissioners meeting held on April 26, 2007, the agent for Southern Tradition and Martin Brothers stated that they intended to pursue enforcement of the contracts for the properties “in order to teach [Fritts] a lesson and that [they] had enough money to do so.” Clark also attested that at a subsequent Board of Commissioners meeting on May 24, 2007, the Hall County attorney, who also was a partner at the law firm representing Southern Tradition and Martin Brothers, openly stated that there was active litigation involving the properties. In addition, Clark recalled that again on October 8, 2007, the agent for Southern Tradition and Martin Brothers stated that Southern Tradition and Martin Brothers “had enough money to keep the [properties] tied-up in litigation for the next 5 to 10 years.”
Southern Tradition and Martin Brothers contend that the alleged statements were not false and did not reflect upon or impugn appellants’ title to the property.
(i) We agree with the trial court that the attorney’s alleged statement at the May 24, 2007 meeting did not amount to actionable slander of title. Appellants contend that the attorney’s statement falsely informed third parties that there was active litigation involving the properties, when in fact the lawsuits had not yet been filed. The lawsuits were filed on May 30, 2007 and May 31, 2007 respectively, approximately one week after the alleged statement was made. Nevertheless, “[d]efamation law overlooks minor inaccuracies and concentrates upon substantial truth. A statement is not considered false unless it would have a different effect on the mind of the listener from that which the pleaded truth would have produced.” (Punctuation and footnotes omitted.) Vito v. Inman,
(ii) We also agree with the trial court that the April and October 2007 statements do not constitute slander to title. As previously noted, an action for slander to title must be based on the uttering of false words. Latson, supra at 114. Here, the trial court correctly held that neither of the statements in question was false. At the time the statements were made, whether or not the contracts were still enforceable or had been lawfully terminated was in dispute between the parties. There was no judgment from a court of law resolving that contractual issue, and the statements simply asserted that the buyers intended to pursue enforcement of the contracts and had enough money to keep the properties tied up in litigation for many years. Indeed, consistent with the statements, the parties are still involved in litigation some four years after the statements were uttered. Moreover, such statements about the buyers’ motivations and intentions were nothing more than “subjective, hyperbolic opinion that cannot be proved to be true or false[.]” Evans v. The Sandersville Georgian,
Case No. A10A2143
2. Southern Tradition and Martin Brothers contend that the trial court erred in granting the motion for attorney fees filed by Executive, Fritts, and Sterling Trust under OCGA § 9-15-14. We agree and conclude that the trial court’s ruling was not authorized.
OCGA § 9-15-14, governing the award of attorney fees, pertinently provides as follows:
(a) In any civil action in any court of record of this state, reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. . . .
*286 (b) The court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct^] ... As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.
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“To the extent [a] trial court’s order on attorney fees was based on OCGA § 9-15-14 (a), it must be sustained if there is any evidence to support it. To the extent the award was based on OCGA § 9-15-14 (b), it must be sustained unless the trial court abused its discretion.” (Citation and punctuation omitted.) Robinson v. Glass,
In this case, the trial court awarded attorney fees to Executive, Fritts, and Sterling Trust based upon its finding that the claims presented in the respective complaints filed by Southern Tradition and Martin Brothers lacked substantial justification and contained no justiciable issue of law or fact. The crux of those claims is the assertion that the April 1 rezoning deadline in the contracts arose from a scrivener’s error, and that the parties actually intended a June 1 deadline. Indeed, equity affords a remedy if it can be shown that the contract terms fail to “express the true intention of the parties.” Brannen u. Gulf Life Ins. Co.,
The undisputed testimony of Frank Simpson, the buyers’ real estate agent, is that the parties discussed closing dates and reached “an understanding from everybody” that the closing would take place “45 days after the rezoning.” He testified that the parties’ negotiations as to the closing date focused on the amount of time the buyers would be allowed for preparation of the rezoning application. The parties agreed that the buyers would have 60 days, until February 26. It was then Simpson’s responsibility to calculate the rezoning deadline by determining the amount of time needed to complete a rezoning process initiated on February 26. The zoning process entails a published notice, a zoning commission hearing, and a county commission hearing. According to his testimony, Simpson performed the calculation using a chart of meeting dates and
That testimony would have authorized the trial court to conclude that the parties intended the sellers to have 60 days to prepare and file their rezoning application, that they intended to allow sufficient time thereafter for the rezoning process to run its course, that the parties relied on Simpson to calculate the time needed, that he miscalculated and set an unattainable deadline, and that — in their mutual reliance on his mistaken calculation — the parties were “laboring under the same misconception.” Yeazel v. Burger King Corp.,
Moreover, we see nothing suspicious in the fact that the buyers attempted to waive the rezoning contingency before they raised the issue of reformation. Notwithstanding that the language of the agreement empowers the sellers to insist upon it, the buyers correctly note in their complaint that there was “no possible benefit flowing to the seller under the zoning contingency.” The buyers’ attempt to waive the zoning contingency was an offer to accept additional business risks in order to avoid or simplify this litigation. It was an unexceptionable attempt to quickly resolve this dispute.
Finally, it is true that the trial court would have been authorized to reject the buyers’ claim that Fritts misrepresented his authority over Sterling Trust on the basis that the buyers’ reliance on those misrepresentations was not justified. But regardless of whether the buyers ought to have further investigated the extent of Fritts’s legal authority over the trust, the trial court would have been authorized to conclude that the buyers reasonably relied on Fritts’s assurances that he had sufficient power over the trust to cause it to cooperate. (Indeed such a conclusion would be reinforced by the fact that the sellers have conducted this litigation in complete harmony and refer to themselves in their appellate briefs as the “Fritts Parties.”) “Ordinarily the question whether the complaining party could have ascertained the falsity of the representations by proper diligence is for determination by the jury.” Elliott v. Marshall,
“For a mistake to be relievable in equity by reformation, it must be mutual, or else mistake on the part of one to the contract and
Case No. A10A2144
3. In this cross-appeal, Executive, Fritts, and Sterling Trust challenge the trial court’s decision granting the motion for attorney fees filed by Southern Tradition and Martin Brothers. The trial court’s award of attorney fees was based upon its finding that the counterclaim lacked súbstantial justification and failed to present a justiciable issue of fact or law.
We agree with the trial court’s finding to the extent that we too have concluded, in Division 1 (a) above, that the slander of title claim based upon the privileged lis pendens notices was without merit. Executive, Fritts, and Sterling Trust nevertheless argue that the assessment of attorney fees was precluded under OCGA § 9-15-14 (c) since they asserted the claim in a good faith attempt to establish a new legal theory in Georgia jurisprudence. The trial court rejected their argument. In light of the controlling precedent clearly establishing that a valid lis pendens is privileged, see Alcovy Properties, supra; Panfel, supra, we agree that the sellers’ argument is unavailing. Accordingly, the trial court’s attorney fee award predicated on this basis was authorized. See Brunswick Floors v. Carter,
Likewise, we agree that the trial court correctly awarded attorney fees as to the slander of title claim based upon the May 2007 statement discussed above in Division 1 (b) (i). As explained in that Division, the statement was a minor inaccuracy that cannot constitute slander to title and was subject to summary adjudication. Because that claim was without substantial justification, the trial court did not err in awarding attorney fees as to that claim.
However, we reach a different conclusion as to the slander of title claims predicated upon the statements made in April and October 2007. As explained in Division 1 (b) (ii) above, we have affirmed the grant of summary judgment as to those claims. But the fact that the dissent deems those claims viable shows that the sellers could have reasonably believed that a court would accept their
“Attorney’s fees and expenses of litigation awarded under [OCGA § 9-15-14] shall not exceed amounts which are reasonable and necessary for defending or asserting the rights of a party.” OCGA § 9-15-14 (d). Where a party is entitled to recover fees on only part of his claim, he must present proof to show what portion of the fees was allocable to that claim. See Duncan v. Cropsey,
Judgment affirmed in Case No. A10A1745. Judgment reversed in Case No. A10A2143. Judgment affirmed in part, reversed in part, vacated in part and case remanded with instruction in Case No. A10A2144. Smith, P. J., Barnes, P. J., Blackwell and Dillard, JJ., concur. Miller, P. J., and Phipps, P. J., concur in part and dissent in part.
Concurrence Opinion
concurring in part and dissenting in part.
I respectfully dissent as to Divisions 1 (b) (ii) and 2 of the majority opinion. I otherwise concur fully in the rest of the opinion.
1. Contrary to the majority’s view, I believe that the record evidence supports a valid slander of title claim and precludes the entry of summary judgment based upon the April and October statements made by the agent for Southern Tradition and Martin Brothers to third parties.
Under OCGA § 51-9-11, “[t]he owner of any estate in lands may bring an action for libelous or slanderous words which falsely and maliciously impugn his title if any damage accrues to him therefrom.” In determining whether a statement is defamatory or slanderous, the statement must be viewed in context. See Webster v. Wilkins,
As a defamatory statement may be made in indirect terms or by insinuation, the publication thereof must be construed as a whole. In doing so, the courts will not hunt for a strained construction in order to hold the words used as being defamatory. In considering whether a [statement] is*290 defamatory as a matter of law, any relevant extrinsic circumstances will be considered, because a statement may carry a defamatory meaning only by reason of extrinsic fact or circumstances by use of innuendo, inducement and colloquium.
(Citations and punctuation omitted.) Stalvey v. Atlanta Business Chronicle,
The sellers’ slander of title claim pertinently alleged that the agent for Southern Tradition and Martin Brothers made statements to third parties that Southern Tradition and Martin Brothers intended to pursue enforcement of the contracts for the properties “in order to teach [Fritts] a lesson” and that they “had enough money to keep the [properties] tied-up in litigation for the next 5 to 10 years.” Southern Tradition and Martin Brothers contend that the alleged statements were not false and did not reflect upon or impugn the sellers’ title to the property. The majority finds this argument persuasive. I disagree.
While the majority appears to view the statements narrowly, the legal standard for evaluating a slander of title claim requires that the statements be viewed in context, considering the circumstances in which the statements were made. See Webster, supra,
Moreover, based upon the statements, a jury would be authorized to find that Southern Tradition and Martin Brothers were acting out of malice, with a purpose to harass the sellers and to bind their property. In addition, the statement’s reference to bind or “tie[ ]- up” the properties recognized that a cloud on the title would exist during the pendency of the litigation. As such, the statements could reasonably be construed as having the effect of maliciously impugning the sellers’ title to the properties. See OCGA § 51-9-11; Sanders v. Brown,
I disagree with the majority’s assertion that the statements could not be deemed as false since the parties disputed whether the contracts had been lawfully terminated and the properties were
The evidence further established the element of publication to third parties. Clark averred that the April statement was made at a Board of Commissioners meeting, in his presence as well as in the presence of others. Although Clark averred that he was an original member of Executive and that the October statement was made to him, there was evidence reflecting publication of the October statement to third parties, as well. Notably, although Clark was an agent of Executive, there was no evidence that he was an agent of Fritts or Sterling Trust, who had ownership interests over the separate four-acre tract. Consequently, the publication of the statements to Clark was sufficient to establish a valid claim as to Fritts and Sterling Trust. See Baskin v. Rogers,
The evidence also would permit a finding that the agent for Southern Tradition and Martin Brothers was authorized to make the slanderous statements.
[UJnder general principles of tort law, the doctrine of respondeat superior does not apply in slander cases, and a principal is not liable for the slanderous utterances of an*292 agent acting within the scope of his employment, unless it affirmatively appears that the agent was expressly directed or authorized to slander the plaintiff.
(Punctuation and footnote omitted.) Tootle v. Cartee,
Since the statements were allegedly made to third parties at the Board of Commissioners meetings, they were made separately from the litigation and thus, were not covered under the litigation privilege. See Sanders, supra,
I further believe that the evidence sufficiently supported the sellers’ claim that they sustained special damages as a result of the statements. See OCGA § 51-9-11; Premier Cabinets v. Bulat,
Special damages are those which actually flow from a tortious act; they must be proved in order to be recovered. Special damages must be proven with sufficient particularity for the jury to estimate the amount thereof with reasonable certainty; exact figures are not required for proof.
(Citations and punctuation omitted.) Sanders, supra,
Here, the sellers alleged that as a result of the slanderous statements, they sustained special damages in the form of an increased tax liability after their property was rezoned and a decrease in the properties’ marketability and values. In his affidavit, Clark attested that Southern Tradition and Martin Brothers continued to pursue the rezoning application over the sellers’ objections and after the contracts had been rescinded. As a result, the 15-acre tract was rezoned and the property taxes for the tract increased from
Clark further attested that he worked in the construction industry for approximately 30 years and that he assisted Excellence and Sterling Trust in evaluating any purchase offers or contracts pertaining to the properties. Clark stated that he had knowledge of the location, dimensions, and characteristics of the properties; that he had the opportunity to discuss the value of the properties with various real estate professionals; and that he regularly monitored the listings and sales of comparable properties in the area. Clark attested that based upon his knowledge, discussions, and investigation, the subject properties could have been sold in November 2007 with proper marketing for $145,000 per acre. Clark asserted, however, that as a result of the slanderous statements, the properties became unmarketable and licensed realtors have stated that the current value of the properties has depreciated to approximately $80,000 per acre.
In this regard, Clark’s affidavit provided opinion evidence showing the decrease in the properties’ value after the slanderous statements were made.
Opinion evidence offered by a non-expert witness as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience, or familiarity with the value of the property in question or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion.
(Citations and punctuation omitted.) Reeves v. Crawford,
Market value is exclusively a matter of opinion even though expressed as a fact. It may rest wholly or in part upon hearsay, provided the witness has had an opportunity of forming a correct opinion. If it is based on hearsay this would go merely to its weight and would not be a ground for valid objections.
(Citations and punctuation omitted.) Unified Govt. &c. v. Watson,
Based upon the foregoing, the evidence presented a valid claim for slander of title. A jury would be authorized to construe the statements as reflecting that Southern Tradition and Martin Brothers asserted a false claim over the sellers’ properties after the contracts had been terminated and “tied-up,” i.e., impugned, the sellers’ titles to the respective properties “in order to teach [Fritts] a lesson” and to be undeservedly vengeful or hostile. See, e.g., Schecter v. Strickland,
In awarding attorney fees to the sellers, the trial court made a finding that Southern Tradition and Martin Brothers presented claims in their lawsuits that lacked substantial justification and contained no justiciable issue of law or fact. In their complaints, Southern Tradition and Martin Brothers asserted claims for contract reformation, specific performance, and attorney fees. The Martin Brothers complaint also asserted claims for declaratory judgment, mandatory injunction, and fraud. As stated in the trial court’s order, these claims rested on Southern Tradition’s and Martin Brothers’s legally erroneous contentions that they were entitled to unilaterally revise the April 1, 2007 rezoning deadline that was unambiguously set forth in the contracts that were prepared by their agent. The evidence supports the trial court’s finding that these claims were meritless and failed to contain a justiciable issue.
The terms of the rezoning contingency and the April 1 deadline were clear and unambiguous. When the terms of a contract are plain and unambiguous, the contract must be enforced as written, so long as it is within the bounds of the law. See Toy Wright Ventures v. Radio Foods,
The majority opinion nevertheless finds credence in Southern Tradition’s and Martin Brothers’s argument that the April 1 rezoning deadline was a scrivener’s error and that the parties’ intent was to instead provide a June 1 deadline. The uncontroverted evidence, however, reflects that they did not raise any such claim of scrivener’s error until after it became apparent that the deadline would not be met. On March 28, 2007, counsel for Southern Traditions and Martin Brothers sent a letter to Executive attempting to unilaterally remove the rezoning contingency from the contracts. Significantly, the letter made no mention of any alleged scrivener’s error. Fritts sent a letter in response, which objected to the unilateral attempt to remove the rezoning contingency, and he further averred that the April 1 rezoning deadline was not a mistake.
equity will not decree the reformation of an instrument because of mistake of one of the parties alone unmixed with any fraud or knowledge on the part of the other equivalent to mutual mistake. For a mistake to be relievable in equity by reformation, it must be mutual, or else mistake on the part of one to the contract and fraud on the part of the other.
(Citation and punctuation omitted.) Prince v. Friedman,
Contrary to the majority opinion, the evidence did not establish that the contract set an unattainable deadline at its inception. The contracts provided that the rezoning applications were required to be filed “within [s]ixty (60) days” of the contracts’ formation. (Emphasis supplied.) Significantly, the agent for Southern Trust and Martin Brothers conceded in his deposition testimony that if the rezoning applications had been filed earlier in January 2007, rather than near the end of the deadline period in February 2007, the April 1 deadline could have been met.
Likewise, the trial court was authorized to find that there was no merit to Martin Brothers’s fraud claim, alleging that Fritts misrep
Because the record supports the trial court’s finding that the claims of the complaint lacked substantial justification and failed to present a justiciable issue, I believe that the decision to award attorney fees was authorized. See OCGA § 9-15-14 (a), (b); Robinson v. Glass,
I am authorized to state that Presiding Judge Phipps joins in this opinion.
Notes
OCGA § 24-9-66 provides that “[d]irect testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article in question but may testify as to its value if he has had an opportunity for forming a correct opinion.”
Southern Tradition and Martin Brothers contend that the instant case is distinguishable from that of Sanders, supra,
The majority opinion also reflects misplaced reliance upon the agent’s testimony that he miscalculated the deadline by failing to correctly analyze the consequences of a rescheduled county commission meeting. The rescheduled meeting referenced in the agent’s testimony had initially been scheduled for May 10, 2007, which fell after the April 1 rezoning deadline. The agent testified that when the May meeting was canceled, it was rescheduled for an earlier date of April 26, 2007. Nevertheless, since the rescheduled May meeting and the April 26 meeting both were after the April 1 rezoning deadline, they could not be relied upon as impacting or excusing the buyers’ failure to properly calculate or meet the April 1 rezoning deadline.
The elements of a fraud claim are: (1) false representations made by the defendant; (2) that the defendant knew the representations were false; (3) an intention by the defendant to induce the aggrieved party to act or refrain from acting in reliance on the representations; (4) justifiable reliance by the aggrieved party on the representations-, and (5) damage to the aggrieved party.
(Citation omitted; emphasis supplied.) Lester, supra,