Corporate homebuilders Ray M. Wright d/b/a Ray Wright Homes, Inc., Ravin Homes, Inc., and Chris Dixon & Associates, Inc. (collectively, the “Builders”) and Dan V. Stinchcomb (“Stinchcomb”), a real estate developer, entered into a contract under which Stinchcomb agreed to sell the Builders 116 lots in a Fayette County subdivision (the “sale contract”). As consideration, the Builders paid Stinchcomb $10,000 in earnest money. In January 2000, the Builders purchased 71 of the lots. The terms obligating the Builders to purchase the remaining forty-five lots (the “remaining lots”) has been the subject of litigation since that time, on one prior occasion reaching this Court. See
Ray M. Wright, Inc. v. Stinchcomb,
The Builders voluntarily dismissed the case upon its remittitur to the trial court, later refiling it as the underlying complaint. The Builders realleged counts for specific performance of the sale contract or, in the alternative, breach of the agreement, conversion, attorney *137 fees, and punitive damages. They also alleged a new count for fraudulent conveyance and added as a party Victor Holdings, LLC (“Victor Holdings”), an entity organized by Stinchcomb and to which he conveyed the remaining lots by quitclaim deed. Stinchcomb timely answered and counterclaimed for breach of contract and attorney fees. On cross-motions for summary judgment, the trial court denied Stinchcomb summary judgment on the Builders’ claims and granted summary judgment to the Builders on Stinchcomb’s counterclaims.
Following a trial, the jury returned its verdict finding that Stinchcomb breached the sale contract; fraudulently conveyed the remaining lots to Victor Holdings; and converted the Builders’ earnest money. By its award, the jury required Stinchcomb to sell the Property to the Builders under the terms of the sale contract, and awarded the Builders $100,000 as attorney fees and $5 as punitive damages. The trial court thereafter entered judgment on the verdict, ordering specific performance of the sale contract and nullifying Stinchcomb’s quitclaim deed to Victor Holdings.
Stinchcomb appeals from the trial court’s judgment on the jury’s verdict and its order denying his motion for judgment notwithstanding the verdict or, alternatively a new trial. After careful review, discerning no error, we affirm.
1. Stinchcomb challenges the grant of summary judgment to the Builders on his counterclaim for breach of contract. Specifically, he argues that this Court reversed the grant of summary judgment on the “identical issue” in Wright I when the Court held that (a) issues of fact remained on the question whether the Builders breached the contract by failing to timely tender the purchase price, and that (b) the jury should have been able to consider his claim that the Builders breached the mutual release term of the sale contract. We disagree.
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. [Cits.]
Youngblood v. Gwinnett Rockdale Newton Community Svc. Bd.,
(a) In Wright I, this Court reversed the grant of summary judgment to Stinchcomb, finding that there existed
material issues of fact on the question of whether Wright breached the parties’ agreement by failing to make a timely tender of the purchase price for the lots in the second phase *138 or whether Stinchcomb breached the agreement by not readying the lots for sale by obtaining the city’s approval of a final plat.
Id. at 214. As to the grant of summary judgment for the Builders in this case, however, the trial court based its ruling on Stinchcomb’s failure to present any evidence of consequential damages or of damages contemplated by the parties at the time of contracting, not on the same issues addressed in
Wright I.
See
Exec. Constr., Inc. v. Geduldig,
(b) Stinchcomb also contends that summary judgment for the Builders on his counterclaim was in error, arguing that jury questions remain regarding whether the Builders breached a mutual release agreement entered by the parties. However, because the mutual release does not cover the remaining lots, we find that the trial court did not err in its grant of summary judgment to the Builders.
Stinchcomb points out that the mutual release, by its own terms, applied to “Stonebriar West, Unit One, Phase Two.” Upon examining the mutual release as the highest and best evidence of the intent of the parties (see
Livoti v. Aycock,
Stinchcomb argues that “Stonebriar West, Unit One, Phase Two” refers to the entire property of 116 lots, relying on certain affidavits of the Builders. Parol evidence, however, is admissible to vary the terms of the mutual release only to the extent it is ambiguous. OCGA
*139
§ 13-2-2;
Livoti,
supra,
Given the foregoing, the trial court properly granted summary judgment to the Builders on Stinchcomb’s counterclaim.
2. Stinchcomb contends that the trial court erred in awarding specific performance of the sale contract, attorney fees, and punitive damages since the jury failed to award compensatory damages. Stinchcomb also challenges the award of specific performance in that the sale contract failed to sufficiently set out a legal description of the remaining lots. We find these arguments to be without merit.
(a) Stinchcomb’s argument that the Builders must recover monetary damages in order to obtain specific performance is incorrect. In fact, the rule is the reverse. “In order to entitle one to recover damages in lieu of specific performance, the complainant must prove his right to the latter remedy. [Cits.]”
Clayton v. Deverell,
In this regard, Stinchcomb also raises the claim that any award of specific performance, whether by jury verdict or entry of judgment thereon, was impermissible for want of evidence showing that the contract was fair and equitable. Inasmuch as this argument is raised for the first time on appeal, we need not consider it. See, e.g.,
Community Bank v. Handy Auto Parts,
Under these circumstances, we will not disturb the trial court’s award of specific performance.
Laseter v. Brown,
Stinchcomb’s argument that the trial court erred in granting the Builders their attorney fees and punitive damages due to the jury’s failure to award compensatory damages is likewise without merit.
*140
A decree of specific performance will support an award of attorney fees.
Golden v. Frazier,
(b) Stinchcomb argues that the sale contract was unenforceable because the preliminary plat intended as the “key” to identifying the Property was not properly identified and failed to provide an adequate legal description. Notwithstanding the foregoing, the sale contract describes the entire tract to be conveyed as “all that tract of land lying and being in Land Lot 96 & 6 of the 5th & 7th District... of Fayette County, Georgia and being known as . . . Magnolia Ridge Subdivision. . . .” Since a plat in conjunction with extrinsic evidence may be used as a key to describe the specific bounds of land otherwise described in a contract (see
Ga. Loan & Trust Co. v. Dyer,
Special Stipulation 4 to the sale contract referred to the Magnolia Ridge Plat as being attached to the contract and by reference being incorporated into the contract. On its face, the Plat is prominently labeled, “Preliminary Plat of: Magnolia Ridge, A Planned Unit Development.” Stinchcomb, among other witnesses, described the Plat, later termed Stonebriar West, as the land he agreed to sell pursuant to the sale contract. As a signatory to the sale contract, Stinchcomb cannot complain that the Magnolia Ridge Plat was not attached to and a part of the contract at the time of its execution. See
Holt & Holt, Inc. v. Choate Constr. Co.,
Moreover, Stinchcomb’s conveyance of the initial 71 lots belies his claim of ambiguity as to the eastern boundary of the entire Plat.
Scott v. Lester,
3. Stinchcomb contends that the trial court erred in failing to charge the jury on the definition of the word “lot” found in Fayetteville and Fayette County zoning ordinances. He points out that the sale contract required the Builders to close on the remaining lots within nine months of the date on which the initial lots were purchased without defining the term “lots.” Stinchcomb argues that the Fayetteville and Fayette County zoning definitions of a “lot” unambiguously evidence a duty of the Builders to close on the remaining lots under the sale contract even without an approved final plat. This argument is without merit.
It was for the jury to determine whether or not the word “lot” as used in the sale contract required Stinchcomb to convey final-platted subdivision lots. In
Wright I,
we held that parol evidence of trade usage and custom was admissible to assist the jury in making such a determination.
Wright I,
supra,
4. In his final enumeration of error, Stinchcomb contends that the trial court erred by denying his motion for judgment notwithstanding the verdict because there was no evidence that he fraudulently conveyed the Property to Victor Holdings. We disagree.
“It is well established that whether a deed was made with the intent to ... defraud... is a question of fact for the jury....”
Langston v. Allen,
Judgment affirmed.