Clayton v. Deverell

• Decision Date: 01 December 1987
• Docket Number: No. 45009,45009
• Citation: 257 Ga. 653,362 S.E.2d 364
• Parties: CLAYTON et al. v. DEVERELL et al.
• Court: Georgia Supreme Court

Page 364

362 S.E.2d 364

257 Ga. 653

CLAYTON et al. v. DEVERELL et al.

No. 45009.

Supreme Court of Georgia.

Dec. 1, 1987.

Albert C. Palmour, Jr., Summerville, for Aileen B. Clayton, et al.

Michael D. Hurtt, Dalton, for Euna Clayton Deverell, et al. MARSHALL, Chief Justice.

This is an action for specific performance of a contractual agreement to settle a dispute concerning two tracts of real estate located in the City of Chatsworth, Murray County, Georgia.

This suit was instituted by the appellees, who are Euna Clayton Deverell, Cecil Deverell, and E. Crawford McDonald. The appellants-defendants are Aileen B. Clayton and Frances Murray. In a previous year's support proceeding, appellee Euna Clayton Deverell has been adjudicated to be the common-law wife of the deceased son of appellant Aileen Clayton. Appellant Frances Murray is the sister of the deceased.

In their petition, the appellees contend that the two appellants agreed to release their claimed interest in the subject property in consideration of payment by the appellees of $25,000. They seek an award of specific performance, as well as an award of attorney fees under OCGA § 13-6-11, consequential damages, and punitive damages.

Appellant Frances Murray contends that she did not authorize her mother to settle her claim to the property and that the settlement agreement was entered into without her knowledge or consent. However, during the course of this litigation, both appellants consented to a settlement agreement containing the same terms as the original agreement. When the appellants failed to perform the second settlement agreement, the appellees requested the trial court to order enforcement of this latter agreement through issuance of a decree of specific performance. The appellants filed a demand for jury trial.

The trial court ruled that it would sever all damage issues from the equitable issues in the case. After conducting a nonjury evidentiary hearing, the trial court entered judgment awarding the appellees a decree of specific performance of the agreement.

After denial of their motion for new trial, the appellants filed a motion requesting the trial court's issuance of a certificate of immediate review. In the motion, the appellants noted that they were in a quandary as to whether or not the specific-performance judgment is a final judgment subject to immediate appeal, and they requested that the judgment be held to be immediately appealable as a final judgment. The trial court granted the motion for certificate of probable cause to appeal, and we granted the application for discretionary appeal. Held: For reasons which follow, we affirm and remand for further proceedings consistent with this opinion.

1. The specific-performance award, at least with respect to the second settlement agreement, is certainly supported by the evidence.

"In Reed v. Dougherty, 94 Ga. 661 (20 SE 965), it was held: 'One who has made a contract for the sale and conveyance of land, the agreed purchaser never having entered into possession nor taken a conveyance, has his election of two remedies, if the contract be binding upon the other party. He may either proceed in an equitable action for specific performance, or bring an action at law for damages for breach of the contract.' See Morris v. McKee, 96 Ga. 611 (24 SE 142); Crim v. Southern Realty & c. Cor., 38 Ga.App. 502 (144 SE 342). In order to entitle one to recover damages in lieu of specific performance, the complainant must prove his right to the latter remedy. Tippins v. Phillips, 123 Ga. 415 (51 SE 410); Prater v. Sears, 77 Ga. 28." Loewus v. Eskridge & Downing, Inc., 175 Ga. 456, 460, 165 S.E. 576 (1932).

2. However, Loewus, citing Boney v. Cheshire, 147 Ga. 30, 92 S.E. 636 (1917), goes on to hold that, "[s]pecific performance and damages are not inconsistent remedies and may be pursued in the same action." 175 Ga. at p. 460, 165 S.E. 576. This statement is not altogether true.

Division 1 of Boney holds only that the petition in that case was "not open to the criticism that it is multifarious because it asks for both specific performance of the contract and damages for the alleged breach thereof." 147 Ga. at p. 30, 92 S.E. 636. But, it was noted in Boney that the petition in that case was phrased in the alternative. Also cited in Boney was § 4639 of the Civil Code of 1910 (OCGA § 23-2-135), providing: "If, for any cause, specific performance is impossible, or if the vendee declines to accept a performance in part, the court may proceed to assess damages for the breach of the contract." Armor v. Stubbs, 150 Ga. 520, 104 S.E. 500 (1920); Causey v. Causey, 106 Ga. 188, 193, 32 S.E. 138 (1898); Lewis v. Warren, 51 Ga.App. 135, 179 S.E. 918 (1935).

Properly construed, this statutory provision now contained in OCGA § 23-2-135 authorizes a trial court to award damages in lieu of, rather than in addition to, specific performance if, for any cause, the specific performance is impossible, or if the vendee declines to accept a performance in part. Loewus v. Eskridge & Downing, Inc., supra; Prater v. Sears, 77 Ga. 28 (1886).

3. The general rule is that specific performance is an extraordinary, equitable remedy, which will only be granted if the complainant does not have an adequate remedy at law. OCGA § 23-2-130. Gabrell v. Byers, 178 Ga. 16, 172 S.E. 227 (1933). However, where the vendor or other complaining party is entitled to specific performance, it is accurate to state that he "has his election between specific performance and damages." Loewus, supra, 175 Ga. at p. 460, 165 S.E. 576. Thus, although the plaintiff is allowed to pursue alternative remedies of specific performance and damages, if the plaintiff obtains an award of specific performance, he certainly is not also entitled to an award of damages which would have resulted from the defendant's failure to perform the parties' contract.

4. However, this does not mean that an award of specific performance automatically precludes an award of any monetary damages. In Golden v. Frazier, 244 Ga. 685, 687(2), 261 S.E.2d 703 (1979), this court, "overrul[ing]" Brunswick Co. v. Dart, 93 Ga. 747(2), 20 S.E. 631 (1894), held that an award of specific performance does not necessarily bar the plaintiff from recovering attorney fees incurred by the plaintiff as a result of having to bring the action because of the defendant's refusal to perform his contractual obligations. In Golden, citing 5A Corbin on Contracts 473, § 1222 (1964), we also held "that 'specific performance at the end of a protracted litigation under compulsion is practically never full performance of the contract; instead, there has been an extensive and injurious partial breach. In such a case, the court should decree the payment of damages for the partial breach that has already occurred, even though obedience of the decree will prevent the commission of further breaches....' " 244 Ga. at p. 688 (3), 261 S.E.2d 703.

5. Here, as previously stated, in addition to an award of specific performance, the appellees seek consequential and punitive damages, as well as an award of attorney fees under OCGA § 13-6-11.

(a) Section 13-6-11 provides, "The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith in making the contract, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow then." See also OCGA § 9-15-14; Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986).

Consequently, the award of specific performance does not, as a matter of law, bar the appellees from recovering the claim for attorney fees.

(b) "Unless otherwise provided by law, exemplary damages shall never be allowed in cases arising on contracts." OCGA § 13-6-10.

This statutory provision has been interpreted to mean that in an action for breach of contract, punitive damages cannot be awarded in the absence of evidence showing tortious conduct on the part of the defendant. " 'To authorize the imposition of punitive or exemplary damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences.' Southern Railroad Co. v. O'Bryan, 119 Ga. 147(1) (45 SE 1000) (1903)." Speir Insurance Agency, Inc. v. Lee, 158 Ga.App. 512, 514(3), 281 S.E.2d 279 (1981). However, mere bad faith on the part of the defendant in an action arising on a contract does not in itself authorize a punitive damage award. Nestle' Co., Inc. v. J.H. Ewing & Sons, 153 Ga.App. 328(3), 265 S.E.2d 61 (1980).

Thus, the award of specific performance does not, as a matter of law, bar the appellees' punitive damage claim. However, we do note that the evidence contained in the present record is insufficient to authorize the appellees' recovery on their...