*1 771 v. FRY. HARDWICK 51838. Judge. Quillian, overruling from an order taken
Appeal
Held:
judgment.
a default
to set aside
motion
proof
introduced
(appellant)
The defendant
served was
person
her. The
upon
not obtained
service was
place
usual
dwellinghouse
in defendant’s
not residing
(d) (7);
L.
(Code
Ga.
§ 81A-104
Ann.
§ 4
CPA
See
of abode.
proof
introduced
The
609,
seq.)
610 et
1966, pp.
knowledge
had
the defendant
show
tended to
only
suit.
"at
copy
by leaving
service
to obtain
The failure
person
some
abode with
place
usual
dwellinghouse
therein,”
residing
then
and discretion
age
suitable
(d) (7).
§
Ann.
81A-104
Code
void.
renders
267).
(205 SE2d
Judgment concur. February 4, 1976 Decided
Submitted February 24, 1976. Fain, appellant. Gorby, Michael J. Dennis & Rhodes, appellee. William S. WORLD, INC. REAL ESTATE
51080. FUND, LAND INC. SOUTHEASTERN Judge. Presiding Pannell, against an action brought Plaintiff-seller estate breach of a real alleged for an defendant-buyer sales contract. Plaintiff recover plus interest and upon fees a promissory note referred (executed 1972) the contract October "additional represented by a promissory note” to be delivered by to seller "on or before *2 November 1972.” Paragraph 13 of the contract reads: "In the event defaults thereunder after having paid the additional earnest money required by Paragraph hereof, [the execution and delivery of the note was considered payment of the additional earnest money] seller shall be entitled to retain all original earnest money paid hereunder as partial occasioned default, such collect the proceeds indebtedness owed by purchaser as additional earnest further partial liquidated damages default, occasioned and to pursue remedies available to him at law or but equity, including not limited an action for specific performance of this contract.” purchase price $1,445,200, for a tract 3,613 of land of approximately acres.
The seller agreed to convey "a marketable fee simple title” with any issue of marketability to be determined "in accordance with Georgia law as supplemented by the Title Standards of the State Bar of See Georgia.” Code Ann. Ch. 85-2 Appendix, Title Standards. The seller would have until the date of closing satisfy all valid objections with affidavits or other title papers to cure such defect. Purchaser and seller agreed to submit any dispute as to validity of title to the then Title existing Practices Committee of the State Bar of Georgia Real Property Law Section.
The purchaser given until 20, 1972, November "to examine title and to advise Seller writing objections affecting marketability said title.” Any written notice required by the contract "shall be mailed by Registered or Certified Mail, United States return receipt requested, to the Seller at the address: following McRae; c/o James W. Troutman, Sanders, Lockerman & Ashmore...” Mr. McRae is an attorney at law in the firm of Troutman, Sanders, Lockerman & Ashmore. An affidavit of Mr. Frank W. Armstrong, défendant, in opposition plaintiffs summary judgment Atlanta, that he went stated Sanders, Georgia Troutman, to the law offices 6, 1972, about November & Ashmore on or Lockerman difficulty in spoke with Mr. McRae about and abstracting during large tract of land to such a the title him that Mr. McRae advised time. He stated allotted cognizant title of all Mr. Rowe was that "his associate pertaining Mr. to the tract of land” matters Armstrong Mr. matters with discuss all title
"should Armstrong from Mr. information Mr. received the Rowe.” proceeded to the land the title abstract Rowe question. day title, On the final examination to Mr. 20, 1972, Mr. hand-carried letter difficulty having are in which he stated "we Rowe going endeavor oftitle to land lot 71... We are chain today regarding problem, Mr. to contact Pinson this you say. meantime, will what he has we let know incorrectly please you if us think let know we have interpreted you think deeds, and what action these *3 difficulty.” appropriate remedy this Mr. Rowe responded opinion as to on his with sufficiency marketability the title” the notwithstanding of "evidence of of points attorney raised the addition, that a he advised Mr. defendant. named title insurance policy company issued a had exception, insuring question, and the land without exception Insurance, "will issue Owner’s Title without closing, your appointed day same, for client.” On the appear. sued, did Plaintiff for and defendant moved summary granted judgment. motion for was Defendant’s summary judgment of and for return counterclaim Defendant earnest appeals were denied overruled. enumerating granting
to this error the of court summary summary judgment plaintiff, and denial of alleging judgment defendant, of counterclaim an of as to there was issue material fact whether upon provision grant contract summary relied penalty provision void was Georgia alleged that the law. Defendant further under plaintiff defaulted on his breached the contract and obligation at there to furnish marketable title or least
an issue of material fact as to or not whether defendant jury. had defaulted which should have submitted to a been Held: portrays corporate
1. This action two real estate represented by attorneys entities, law, who entered very explicitly into a detailed contract set forth rights, performed by liabilities, and acts to be each of the for the parties. We do not find letter representing defendant to an ofthe associate firm law plaintiff, compliance specific full with the provisions of the contract. A hand-carried com designated rep munication, resentative, to an associate aof regarding "difficulty with chain of acreage asking title” to 70 ofland acres ofa total of 3,613— indicating for an of that associate, and con party, tinuance of action office a third does qualify objection, as notice title, defect of raising marketability an issue of of title which would realty magnitude. defer a sale of The letter was not by registered mailed mail, certified or addressed to the person, specified by place the contract. Neither did it plaintiff affecting on notice of a defect of title marketability, request specific plaintiff nor action of remedy purported defect. Neither the word "objection” phrase "marketability nor the of title” mentioned compliance the letter. No reference was made to provisions
with the contract as to notice marketability request lack of title, nor did it reference to the State Bar Title Practice Committee in the event satisfy objection did not "difficulty with the chain of title” to the 70 acres. The comply failure to with an essential condition in the appear place contract and the failure to at and time designated closing breach, the contract amounts to a here, where—as these acts were without excuse *4 part, opposite party. and there no fault of the (3) (b) (52 Douglas Realty Co., v. McNabb 78 Ga. provisions 2. Defendant contends that for money retention of the $5,000 and the promissory penalties, note were therefore void They argue provisions unenforceable. that for to these liquidated damages, for must intend as stand provide damages, "liquidate than rather them to damages.” performance security in addition for wording They allege (Emphasis supplied.) of the that the original earnest all . . retain contract, i. e. "seller shall. liquidated partial paid as [$5,000.00] hereunder damages proceeds indebtedness . . collect . damages partial liquidated .., . [$45,000.00]. . . as further equity pursue any or remedies at law . . . specific including, an action but not limited supplied), (emphasis performance Contract” partial liquidated permits plaintiff damages $50,000 as to recover specific performance other and sue for monetary damages equitable or action to secure or specific equitable relief. here considered 13 of the contract
Does permit certain, sue the sums and also retain seller performance damages, specific it think as well? We or does. primary "and” contained definition of the word Dictionary, Second International
in Webster’s New
general
Expressing
"1.
Edition, reads as follows:
esp. accompaniment,
addition,
relation
participation,
connection
contiguity,
continuance,
combination,
simultaneity,
along
together
sequence;
with;
thus:
ceasing;
as;
to;
as well
without
as
added to or linked
the same
as
being;
time;
then;
not less
addition to
phrase
truly;
conjoin
word,
word with
—used
supplied.)
right
(Emphasis
phrase,
A
clause.”
clause with
equity
pursue any
at law or
and all remedies available
specific performance
including
in addition
of the contract
"partial
payable
liquidated
sum certain
liquidated
prevents
being
damages”
the sum certain from
Malony,
As
in Foote Davies Co.
was stated
&
413)
stipulated
"[t]he
sum of
What makes it is its its name. The in effect theFoote & Davies and case in the case is present same; the sum certain is contracted to be recoverable in therefore, addition to regular damages, it, becomes penalty very under terms of is the contract. It immaterial that are not regular damages in action the present case. The same situation was true in the & Foote Davies case.
"The designation of conventional amount will be held to liquidate where that apparent it was not the intention that the obligor escape could further liability by paying City sum.” (62 Co., Brunswick v. 4 Aetna Indem. Ga. 722, 728 SE 475). conclude, therefore,
We
in
judge
trial
erred
summary
granting
judgment
in the action
note,
on the
also
entering a final
judgment
principal and interest and attorney fees on the note sued
upon while
counterclaim,
alleged
right of recovery was still pending. See McDonald v.
(215
Parker,
Judgment Bell, J., Evans, reversed with direction. C. Clark, JJ., Webb, Deen, J., Stolz Quillian concur. P. and Marshall, JJ., dissent.
Argued September January 3, 19, 1975 1976 Decided Rehearing February 25, 1976 denied
Robinson, Harben, Millikan, R. Troy & Millikan, for appellant.
777 Ashmore, J. Sanders, & Troutman, Lockerman Brown, Jr., Dalton, W. George Hawkins, John J. Stanley appellee. Judge, dissenting. Quillian, 2. in Division majority I dissent v.Co. & Davies upon Foote majority principally relies (1) (42 413), wherein SE Malony, Ga. *6 dollars five hundred sum of held that "[t]he court contract could a the for breach of stipulated paid be over paid it to because was damages, be liquidated both I find Foote to be all sustained.” damages above It is distinguishable inapplicable. distinguishable sum, to recover complainant sought there the because represent to the to by parties specifically agreed damages in to addition "all liquidated damages, by amount sought In the total sustained.” the instant case both designated that only sum complainant is parties inapplicable Foote "liquidated damages.” the recover a substantial complainant because to sought In money to damages sum in addition "all sustained.” of to money case no sum of in addition sought this is that except No amount mentioned damages. is liquidated agreed by parties represent sum both "liquidated money of damages.” fact no other of or course sum except action was action "liquidated an damages.” the
Our the use centers disagreement in the complainant contract, conjunction phrase that catchall time honored stipulated damages, remedies available pursue "and to and all lawyers: any be phrase him at law find this equity.” We To clause. penalty finds it to be a surplusage. majority The illegal I find render phrase me do not the addition this should be phrase that which The use of such legal. it that except it moot this case because was not used — that in the sense can be that it was used argued to collect did action complainant bring majority true, If this then is liquidated damages. both holds in contracts which opinion that phrase if add the they stipulate that has a to sue in law to collect party right such of that renders liquidated damages, phrase addition clause unenforceable because is liquidated damages penalty. I agree portion cannot with that states that 13 of this paragraph permits contract seller to retain the sums "and certain also sue damages.” That portion they 13 which say would permit this is: "and to pursue remedies available to him at law equity including, but not limited an specific performance action for contract.” if Clearly, Foote is applicable majority as the is, says it no action law or would equity permit damages over and above the set agreed sum to be liquidated only reason for inclusion of a catchall phrase for the seller to open retain and hold such options as the may permit. law If and when he attempts exercise option, at that time court can determine if the latter represents action a penalty.
It is evident wording of the contract both parties the sum of to be liquidated intended if the defaulted on or before and thereafter the additional *7 represented by the represent note to additional later default. The two sums together represented fully liquidated That amount what seller sued for and nothing additional was requested, alleged, or intimated.
I find no fault issue, with the inasmuch as no additional sum contemplated for, or sued nor additional action instituted.
I am authorized to state that Presiding Judge Deen and Judge Marshall concur in this dissent.