Milton Blankenship sued Clifford and Richard Henry to require their specific performance of Blankenship’s option to buy a 28-acre tract of land owned by the Henrys. Clifford Henry counterclaimed for breach of contract and fraud. The trial court granted summary judgment to Blankenship on his specific performance claim and on the counterclaims, and the Henrys appeal. For the reasons set forth below, we affirm the grant of summary judgment to Blankenship on the fraud counterclaim, but reverse the grant of summary judgment on the breach of contract counterclaim and on Blankenship’s specific performance claim.
“On appeal from the grant of summary judgment [,] this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Citations omitted.)
Youngblood v. Gwinnett Rockdale Newton Community Svc. Bd.,
In 1997, Blankenship approached Clifford about buying a portion of the property owned by Clifford’s wife. In December 1997, Blankenship and Ella Mae entered into a Purchase and Sale Agreement pursuant to which Blankenship agreed to buy 15 acres of the property at a purchase price of $15,000 per acre. The agreement also granted Blankenship a ten-year option to buy the remaining twenty- eight-acre portion of the property at a purchase price of $15,000, “plus Six (6%) percent per annum added to the $15,000 per acre, per year.”
Clifford averred that in December 1997, he and his wife also entered into an oral agreement with Blankenship providing, among other things, (i) that Blankenship would begin operating a car skeleton processing plant on the fifteen-acre parcel within six to fifteen months and construct a railroad spur for use in hauling large quantities of metal, (ii) that Blankenship would purchase as many of the car skeletons generated by the junkyard as Clifford wanted to sell (at a fifty-cents-per-hundred-pound premium over market price), and (iii) that all junk vehicles could remain on the property until they were processed in the car skeleton processing plant. Blankenship,
Ella Mae died on November 20, 2001, leaving Clifford and Richard Henry as her heirs at law. On January 13,2004, Blankenship exercised his option to purchase the 28-acre parcel, but the Henrys did not attend the scheduled closing. Blankenship then brought his complaint for specific performance. In their answer, the Henrys denied that Blankenship was entitled to relief, and Clifford asserted counterclaims for breach of contract and fraud, alleging that Blankenship had breached certain oral agreements with him and that Blankenship had no intention of honoring the agreements at the time that he made them. Blankenship moved for summary judgment on his specific performance claim and on Clifford’s counterclaims. The trial court granted Blankenship’s motions for summary judgment, and this appeal followed.
1. Clifford claims that the trial court erred in granting Blankenship’s motion for summary judgment on Clifford’s counterclaims for breach of contract and fraud. We conclude that the trial court erred in granting summary judgment to Blankenship on Clifford’s breach of contract claim; however, the trial court correctly granted summary judgment to Blankenship on Clifford’s fraud claim.
(a) “A party is entitled to prove the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transactions between them.” (Citation and punctuation omitted.)
Preferred Risk Mut. Ins. Co. v. Jones,
Since evidence shows the existence of the oral contract, the issue becomes whether the oral contract is enforceable. Blankenship contends that the oral contract fails for lack of mutuality because Clifford and his wife provided no consideration. This argument fails because the written sales contract may serve as consideration for Blankenship’s promises under the oral contract. See
Langenback v. Mays,
The trial court found that Blankenship’s promise to purchase car skeletons from Clifford was unenforceable in view of
Smith Svc. Oil Co. v. Parker,
The trial court also found that because the oral contract was for more than a year, it was required to be in writing under the Statute ofFrauds. OCGA§ 13-5-30 (5) provides that “[a] ny agreement that is not to be performed within one year from the making thereof’ must be in writing to be enforceable against the promisor. Thus, if the promise may possibly be performed within a year, it does not fall within this provision. See
Klag v. Home Ins.
Co.,
(b) Clifford also claims that the trial court erred in granting summary judgment to Blankenship on Clifford’s counterclaim for fraud. We disagree.
The elements of fraud include: “(1) false representation by a defendant; (2) scienter; (3) intention to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff.” (Citation and punctuation omitted.)
Pyle v. City of Cedartown,
Specific performance “is not a remedy that either party can demand as a matter of absolute right and will not be granted in any given case unless strictly equitable and just.” (Footnote omitted.)
Kirkley v. Jones,
As we held in Division 1 above, material issues of fact remain on Clifford’s counterclaim for breach of the oral contract, and resolution of that issue touches upon the fairness of the option contract. “Mere inadequacy of price, though not sufficient to rescind a contract, may justify a court in refusing to decree a specific performance, as may
any other fact
showing the contract to be unfair, unjust, or against good conscience.” (Emphasis supplied.) OCGA§ 23-2-133. The evidence is also conflicting as to the value of the 28-acre parcel at the time of the option agreement, and, in the case of a suit for specific performance of an option to buy land, the fairness and adequacy of the option price are measured by the land value at the time of the contract. See
Scott v. Lester,
Judgment affirmed in part and reversed in part.
Notes
We acknowledge that Blankenship’s promise to purchase car skeletons could possibly fall within the UCC Statute of Frauds provision. OCGA § 11-2-201. The UCC Statute of Frauds, however, was not addressed by the parties on appeal or by the trial court below. We therefore will not address that issue here.