Atlanta Six Flags Partnership v. Hughes

• Citation: 191 Ga.App. 404,381 S.E.2d 605
• Decision Date: 27 April 1989
• Docket Number: No. A89A0535,A89A0535
• Parties: ATLANTA SIX FLAGS PARTNERSHIP v. HUGHES.
• Court: United States Court of Appeals (Georgia)

Page 605

381 S.E.2d 605

191 Ga.App. 404

ATLANTA SIX FLAGS PARTNERSHIP v. HUGHES.

No. A89A0535.

Court of Appeals of Georgia.

April 27, 1989.

Swift, Currie, McGhee & Hiers, John P. MacNaughton, Atlanta, C.G. Jester, Jr., Rome, for appellant.

Mark W. Crouch, Atlanta, for appellee.

McMURRAY, Presiding Judge.

Plaintiff, as seller, and defendant, as purchaser, entered into a real estate sales contract for the sale and purchase of 3.1358 acres of land in Cobo County, Georgia. In pertinent part, the contract provides the following: "SECTION 1. PURCHASE AND SALE. Seller hereby sells and agrees to convey and Purchaser hereby purchases and agrees to pay for that certain real property located in Cobb County, Georgia ... SECTION 2. PURCHASE PRICE AND PAYMENTS.... The purchase price for the Property shall be ... $650,000.00 ... payable at the Closing ... in cash, including the Earnest Money Deposits. SECTION 3. EARNEST MONEY DEPOSIT. 3.1 Amount and Form of Deposit. As consideration for Seller's executing this Agreement, Purchaser has concurrently herewith delivered to Chicago Title Insurance Company ... cash in the amount of ... $30,000.00 ... which shall be considered as a portion of the purchase price. If the purchase and sale of the Property is not closed because of Seller's failure to timely perform its obligations or satisfy its conditions as set forth in this Agreement, the Earnest Money Deposit shall be refunded to Purchaser on demand. In all other respects, the Earnest Money Deposit shall be nonrefundable and may be retained by Seller as liquidated damages, except as may otherwise be specified herein. SECTION 4. CONDITIONS. 4.1 Feasibility Study. Purchaser's obligations hereunder are conditioned upon Purchaser's completion and approval of a feasibility study with respect to Purchaser's intended use of the Property.... This condition shall be deemed satisfied unless Purchaser gives Seller written notice of termination of this Agreement within FORTY FIVE (45) CALENDAR DAYS from the date of mutual acceptance of this agreement (hereinafter referred to as the "Termination Notice"). If the Termination Notice is received by Seller within said period, this Agreement shall be considered null and void, the Earnest Money Deposit shall be returned to Purchaser except for One Thousand and No/100 ($1,000.00) Dollars which Seller shall retain as consideration for having taken the property off the market pursuant to this Agreement and, except as provided ... neither party shall have any further rights or obligations hereunder.... 6.2 Title Company and Closing Date. The closing of this transaction (the "Closing") shall be held on May 15, 1987 at the office of the Title Company.... 9.3 Entire Agreement. Time is of the essence of the Agreement. This Agreement contains the entire understanding between the parties and supercedes any prior understandings and agreements between them respecting the subject matter hereof. There are no other representations, agreements, arrangements or understandings, oral or written, between and among the parties hereto or any of them, relating to the subject matter of this Agreement. No amendment of or settlement to this Agreement shall be valid or effective unless made in writing and executed by the parties hereto.... 9.4 Mutual Acceptance. The date of mutual acceptance of this offer is agreed to be the date the Agreement is received by the Title Company."

The agreement was received by the Title Company on February 18, 1987. The earnest money did not accompany it. Subsequently, on March 26, 1987, the Title Company received the earnest money from defendant. It also received a letter from defendant which reads, in part: "Just after you received the Escrow account instruction letter, we encountered several problems of which we were not aware... We have since been working with Mrs. Mary McArthur, of the [plaintiff], to solve these problems and we believe them to now be resolved. According to the Purchase and Sale Agreement, and our attorney, we believe the effective date of this contract to be the date the Earnest Money deposit of $30,000.00 is received by your company and acknowledged by your signature... Therefore, we believe this date needs to be March 26, 1987. If you are in agreement with our attorney's opinion, please deposit the Earnest Money into your Escrow account. If not, please let the [plaintiff], and myself, know immediately."

Because of the possible dispute between the parties concerning the effective date of the agreement, the Title Company placed the earnest money in its custodial account and awaited instructions. In the meantime, plaintiff responded as follows to defendant's position statement: "The escrow agent advises us that your deposit instructions infer that the timetable contemplated by the Agreement is to likewise commence with said deposit. This is not in compliance with the Agreement, which clearly provides that the Agreement and the time frames contained therein commence upon the date the Agreement is received by the title company (Section 9.4), in this case February 18, 1987.... We cannot agree to a unilateral amendment of the Agreement."

On April 3, 1987, defendant spoke with Mr. Carl Parker, a representative of plaintiff, via telephone. At that time, the problems which defendant encountered with respect to his use of the property were solved. Nevertheless, defendant asked Parker to extend the effective date of the contract to March 26, 1987, because of the problems he had encountered. Based on the conversation which followed, defendant "felt" that he and Parker had an "understanding" that defendant was not going to close unless the effective date of the contract was moved up. Defendant acknowledged, however, that Parker did not say he "will extend it." Rather, according to defendant, Parker said he would get back with defendant the next week. (Parker disagreed with defendant's version of the conversation. He interpreted defendant's request for an extension of the effective date as a "negotiating ploy" to gain additional time. And he averred that at the conclusion of the conversation he told defendant he should take another look at the situation if he was thinking about terminating the contract.)

A few days later, on April 6, 1987, defendant stopped payment on the escrow money check. However, defendant never sent a written termination notice in accordance with the terms of the agreement.

On April 7, 1987, plaintiff sent defendant a letter in which it informed defendant of its intent to close pursuant to the terms of the agreement. One day...