Burns v. Reves, A95A0703
| Citation | 457 S.E.2d 178,217 Ga.App. 316 |
| Decision Date | 10 March 1995 |
| Docket Number | No. A95A0703,A95A0703 |
| Parties | BURNS et al. v. REVES. |
| Court | United States Court of Appeals (Georgia) |
McClain & Merritt, Albert J. Decusati, Atlanta, for appellants.
James F. Nowland, Marietta, for appellee.
Appellants/defendants, Randy and Loma Burns, appeal orders of the trial court granting appellee/plaintiff, Betty Reves' motion for summary judgment in the underlying dispossessory action against the Burnses as tenants holding over, denying their motion for summary judgment as to their counterclaim for breach of purchase option, and denying their motion to dismiss the dispossessory action.
The record reflects that the Burnses leased certain premises located in Bartow County for a term which commenced "on December 1990" and continued "until December 1993," providing them an option to purchase the property during such time period. On Memorial Day 1993, Reves notified the Burnses that the lease would not be renewed and that they would have to move. In November 1993, Reves entered into a contract to sell the property to third parties. Thereafter, the Burnses notified Reves that they desired to exercise their option to purchase the property. On January 6, 1994, Reves gave the Burnses further notice by letter that the lease had expired and demanded that possession of the property be relinquished within 30 days.
The Burnses remained in possession of the premises and, in March 1994, Reves filed the instant action in the Bartow County Magistrate's Court. The suit was transferred to the trial court upon the Burnses' demand for jury trial.
1. The Burnses enumerate that the trial court erred in granting Reves' motion for summary judgment as to breach of their option to purchase.
Carpenter v. Parsons, 186 Ga.App. 3, 4, 366 S.E.2d 367 (1988). Further, " " McLoon v. McLoon, 220 Ga. 18, 20, 136 S.E.2d 740 (1964).
The Burnses contend that the lease-option in the instant circumstances continued to December 31, 1993 and that their tender under the option was excused because Reves entered into a contract to sell the property to third parties in November 1993. Pretermitting these issues, however, the Burnses have only established that they notified Reves of an intention to purchase the property when their loan was secured. A date for closing the purchase of the property was never set, and purchase monies were not secured within the option period. While the law does not require actual tender as a condition precedent to entitlement to specific performance where rejection is deemed likely, id., we conclude that mere notice of intent to exercise an option to purchase real estate conditioned on obtaining necessary financing, as here, is insufficient to constitute the exercise of an option to purchase. The option to purchase under the contract was thus lost as not exercised. Moreover, even had the option to purchase been satisfactorily exercised in December 1993, it would nonetheless have been ineffective as beyond the term of the contract. In this regard, we conclude, as did the trial court, that the words "until December 1993," are susceptible to the single construction that the contract was terminated at midnight, November 30, 1993. 1 Allstate Ins. Co. v. Brannon, 214 Ga.App. 300, 301, 447 S.E.2d 666 (1994). Neither are we authorized to "make an unambiguous contract ambiguous by the introduction of parol evidence." Houston v. Jefferson Standard Life Ins. Co., 119 Ga.App. 729, 732, 168 S.E.2d 843 (1969). Accordingly, the trial court's grant of the motion for summary judgment was proper. Castellana v. Conyers Toyota, 200 Ga.App. 161, 165, 407 S.E.2d 64 (1991). ("The construction of a contract...
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