Roswell Properties, Inc. appeals from a judgment, based upon a jury verdict, in favor of Sarah Salle, individually and as executrix of the estate of her late husband, Gilbert Salle, (collectively “Salle”) on Salle’s claims for conversion of earnest money and retention of other payments, conversion of personal property, attorney fees, and punitive damages. The record shows Salle sued Roswell Properties for its actions concerning the proposed sale of a house.
Salle contracted with Roswell Properties to purchase a house that Roswell Properties would build in one of its subdivisions. As part of the agreement, Salle made certain earnest money payments and also paid for an addition to the house. For whatever reason, construction of the house did not proceed as contemplated, and the house was not ready for occupancy as expected. Consequently, the complеtion date of the house was repeatedly extended. Ultimately, however, Roswell Properties notified Salle that if the purchase did not close by a date certain, Roswell Properties would sell the house to another.
The sale to Salle did not close, and Roswell Properties sold the house to another рarty. After Roswell refused Salle’s demand for return of monies she claimed she was owed, Salle sued and recovered a judgment. This appeal followed. Held:
1. Roswell Properties’ first enumeration of error contends the trial court erred by denying its motion to stay the proceedings and compel arbitration. Pretermitting whether the contract authorized arbitration under 9 USC § 1 et seq., the record shows the trial court did not err by denying this motion because Roswell Properties waived any right to arbitration which it might have had. The record shows that rather than submitting to arbitration any disputes with Salle, including whether the house was complete and ready for occupancy, Roswell repudiated the contract by deeming the contract “null and void or cancelled” and by selling the house to a third party. These actions waived Roswell Properties’ right to seek arbitration.
National Parents’ Resource Institute for Drug Ed. v. Peachtree Hotel Co.,
2. Roswell Properties’ second enumeration contends the trial court erred by denying its motion for judgment n.o.v. or in the alternative for a new trial because the verdict is contrary to the law as there was no evidence supporting the conversion and attorney fees claims, and the verdict is contrary to the evidence and strongly against the evidence because no evidence supported Salle’s claims for conversion and attorney fees or her oppositiоn to Roswell Properties’ reliance on the liquidated damages clause of the contract. In enumerations of error 3, 4, and 5 Roswell contends the trial court erred by denying its motion for directed verdict on the issues of conversion, attorney fees, and liquidated damages and in its second enumeration refers us to its arguments in thе other enumerations.
We will first consider whether the trial court erroneously denied Roswell Properties’ motion for a new trial and will address the trial court’s denial of the motion for judgment n.o.v. when we consider the denial of Roswell Properties’ motions for a directed verdict.
Denials of motions for new trial on evidentiary grounds will bе reversed on appeal only if no evidence supports the verdict.
Estfan v. Poole,
As will be discussed below, the record contains sufficient evidence to support the trial court’s denial of Roswell Properties’ motion for a new trial on each of the grounds asserted. Accordingly, the trial court did not err by denying Roswell Properties’ motion for a new trial.
3. When considering whether the trial court erred by denying motions for directed verdicts and motions for judgment n.о.v., we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; directed verdicts and judgments n.o.v. are not proper un
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less 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.
Southern Store &c. Co. v. Maddox,
(a) On the issue of conversion, the record shows the evidence presented did not demand a verdict for Roswell Properties on any of the grounds asserted. Salle presented evidence showing that under the terms of the contract of sale the earnest money paid was “to be applied as part payment of purchase price of said property at the time sale is consummated,” that she made two earnest money payments in the total amount of $12,500, and Roswell Properties refused to return the earnеst money to her after the sale of the house did not close. This evidence authorized submitting to the jury a claim for conversion of the earnest money.
Winter Chase Townhomes v. Koether,
(b) The trial court also did not err by denying Roswell Properties’ motions on the issue of attorney fees. Salle’s complaint claimed attorney fees from Roswell Properties under OCGA § 13-6-11 because of Roswell Properties’ bad faith, stubborn litigiousness, and causing unnecessary trouble and expense. Salle presented evidence tending to show that Roswell Properties breached its contract with her in bad faith because it could sell the house to another for a greater profit.
In this regard, the evidence showing the price to Salle was $153,000, the selling price to the third party was $166,000 and Roswell Properties kept the earnest money and other sums Salle paid for improvements to the house. Other evidence was presented from which the jury could conclude Roswell Properties unreasonably attempted to delay completion of the house, and that Salle had to sue to recover money that should have been returned to her under the contract of sale. Issues concerning bad faith, stubborn litigiousness, and unnecessary trouble and exрense are generally questions for the jury.
Gorin v. FPA 2,
(c) Under the circumstances of this case, we also find the trial court did not err by denying Roswell Properties’ motions on liquidated damages. See OCGA § 13-6-7. We must note, however, that
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trial courts should not ordinarily submit the issue of whether a contract provides for liquidated damages or a penalty to the jury. See
Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co.,
“[A] liquidated damages provision is or is not enforceable based upon the intent that was manifested at the time that the provision was originally proposed and agreed to”
(Adams v. D & D Leasing Co.,
The test to be employed is established in
Southeastern Land Fund v. Real Estate World,
This contract clause is drafted in terms of forfeiting an unspecified sum of earnest money. Although the labels given in the contract are not determinative
(Daniels v. Johnson,
Considering these factors, we must find this agreement was a penalty, and not аn enforceable liquidated damages provision. Daniels v. Johnson, supra.
Accordingly, the trial court did not err by denying Roswell Properties a directed verdict or judgment n.o.v. on any of the grounds asserted above. Denson v. City of Atlanta, supra; Southern Store &c. Co. v. Maddox, supra.
4. In view of our holding in Division 3a, supra, the trial court did not err by charging the jury on conversion.
5. Roswell Properties asserts that the trial court erred by rеfusing to delete from the charge on liquidated damages the word “forfeiture.” We find no error. Roswell Properties is not entitled to have the charge given in exactly the terms it wishes, and the charge given, i.e., “the law does not favor forfeiture or penalty,” accurately informed the jury of the law applicable to this issue.
6. Next, Roswell Properties alleges the trial court erred by giving a charge on recovery of chattels. The only argument on the enumeration states: “This is discussed in detail at item 3. The standard of review is substantial error.” As we find no argument in the brief, this issue is deemed abandoned. Court of Appeals Rule 15 (c);
Bicknell v. Joyce Sportswear Co.,
7. Roswell Properties also contends the trial court erred by charg
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ing the jury on unjust enrichment as this theory is inapplicable when there is an express contract between the parties. See
Ramsey v. Langley,
8. Roswell Properties contends the trial court erred by refusing to give its requested charge on substantial completion of the project. The requested charge stated: “I charge you that when the project is capable of being used for its intended purpose, substantial completion has occurred.” The charge given by the trial court stated that “it is not strict compliance, but substantial compliance with a contract thаt is required,” and “where the compensation is due only on the performance of the contract, a literal and strict performance is not required. If the builder was acting in good faith and intending and attempting to perform the contract ... he may recover . . . notwithstanding slight and trivial defects and deviations in performancе.” Since these charges substantially covered the principle included within the requested charge, we find no error. It is not error to fail to charge in the exact language requested where the principles embodied in the request were included in the charge given.
McCurry v. McCurry,
9. Roswell Properties also contends the trial court еrred by refusing to give its requested charge no. 18 (a) on personal property. Review of the transcript shows that any issue concerning the failure to give this charge was waived. Roswell Properties objected to the failure to give charge 18, on liquidated damages, and requested charge 18 (b) on personal propеrty, but did not object about requested charge 18 (a). Therefore, the issue was waived. Further, an objection merely stating the party objects to the trial court’s failure to charge a specific numbered request is insufficient to preserve the issue.
Lissmore v. Kincade,
10. Finally, Roswell Properties contends the trial court erred by refusing to give its requested charge 20 on attorney fees. The requested charge stated “the expenses of litigation are not generally allowed as a part of the damages. In order for the party to receive any litigation cost they must establish that the defendant acted in bad faith, did not have a colorable defense or caused the plaintiff unneces
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sary trouble and expense. Accordingly, if you find that the defendant had a good faith defense, then you should not grant any litigation costs.” This is not an accurate statеment of the law on the award of litigation expenses and attorney fees under OCGA § 13-6-11, and is misleading because it states that a good faith defense, a defense to only one of the grounds for Salle’s OCGA § 13-6-11 claim, would be a complete defense to the entire claim. “A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If
any portion
of the request is inapt or incorrect, denial of the request is proper.” (Citations and punctuation omitted.)
Mattox v. MARTA,
Judgment affirmed.