Giddens Const. Co., Inc. v. Fickling & Walker Co., 76620

• Decision Date: 09 September 1988
• Docket Number: No. 76620,76620
• Court: Georgia Court of Appeals
• Parties: GIDDENS CONSTRUCTION COMPANY, INC. v. FICKLING & WALKER COMPANY.

Page 792

373 S.E.2d 792

188 Ga.App. 558

GIDDENS CONSTRUCTION COMPANY, INC. v. FICKLING & WALKER COMPANY.

No. 76620.

Court of Appeals of Georgia.

Sept. 9, 1988.

Rehearing Denied Sept. 26, 1988.

Certiorari Granted Nov. 4, 1988.

[188 Ga.App. 561] E. Thomas Shaffer, Macon, for appellant.

J. Ellsworth Hall III, Macon, for appellee.

BIRDSONG, Chief Judge.

This is an appeal of the grant of summary judgment denying punitive damages.

1. Appellee asserts that punitive damages are not recoverable in a contract 2. We find the facts of this case distinguishable from Williams v. Northside Realty Assoc., 116 Ga.App. 253, 254, 157 S.E.2d 166. "The cardinal rule of construction [of a contract] is to ascertain the intention of the parties," OCGA § 13-2-3, and "[e]scrow agreements will be given a reasonable construction in order to carry out the manifest intentions of the parties," 11 EGL, Escrows, § 6. The addendum creating the escrow expressly provided that time was of the essence and that if the sale was not consummated for any reason by November 30, 1985, the escrow monies would be forfeited. It is clear from the language of the addendum that the parties intended and agreed that the appellant would receive exclusive ownership of the monies in escrow upon their forfeiture, and that, as time is of the essence, the escrow holder would tender the funds immediately to the appellant. Further, it clearly was the intent of the parties that if the sale was not consummated by November 30, 1988, the sales contract immediately would become null and void and the escrow would be automatically and immediately terminated. In this regard, the requirement that "[t]ime is of the essence" was not limited by the parties to any particular provision in the addendum, but was drafted without restriction to apply to all addendum actions intended and agreed upon by the parties. Thus, appellee's reliance on Williams to shield it from liability is misplaced.

                action and that appellant's complaint avers no cause of action sounding in tort.  We disagree.  The substance of matters pleaded in the complaint places appellee on due notice of its alleged liability arising from acts and omissions relating directly and independently to breaches of duty arising from the fiduciary relationship of the parties.  The complaint sets forth a cause of action in tort.  See Rawls Bros. Co. v. Paul, 115 Ga.App. 731(1), 155 S.E.2d 819.   We are satisfied that the facts of this case establish that the appellee was the duly appointed subagent of appellant and was appellant's fiduciary regarding those matters within the scope of the agency.  See generally Dolvin Realty Co. v. Holley, 203 Ga. 618, 622, 48 S.E.2d 109;  Stanford v. Otto Niederer & Sons, 178 Ga.App. 56(1), 341 S.E.2d 892;  see 3 Am.Jur.2d, Agency, §§ 210-212
                

This is not an action between the buyer and seller contesting ownership of the escrow funds, but an action between the seller and his fiduciary. Under the terms of this particular addendum, drafted by the appellee, when the sale was not consummated on the specified date the escrow immediately terminated and any dual agency that may have existed terminated with it. From that point, appellee resumed acting solely as appellant's fiduciary, subject to all duties that relationship imposed. Among these duties is the duty not to dispute the principal's (appellant's) right or title to the funds (money); and, appellee is estopped by law from doing so. OCGA § 10-6-26; Courts v. Jones, 61 Ga.App. 874, 876, 8 S.E.2d 178; 11 EGL, Estoppel, § 70; see also OCGA § 24-4-24.

3. Appellee claims that it was merely following requirements contained in the Rules of the Georgia Real Estate Commission, § 520-1-.34, by requiring the signing of a release as a prerequisite to the disbursement of the $1,400. We do not find this argument persuasive. First, the Rules do not require the execution of a release of liability by either the buyer or seller prior to disbursement of funds previously held in escrow. Secondly, to the extent that the rules conflict with the terms of the addendum, they are not capable of enforcement. Panfel v. Boyd, 186 Ga.App. 214, 220, 367 S.E.2d 54, cert. denied. As above discussed, the addendum required appellee to tender immediately the funds to appellant when the sales contract and addendum terminated on November 30, 1985.

Further, appellee's assertion that he could not give the required 30-day notice, pursuant to § 520-1-.34(3) is not persuasive. We will not speculate what appellant's conduct would have been if immediately Appellee's other assertions also are without merit.

after the expiration of the extended time period appellee had notified appellant of his intent to disburse the funds to appellant 30 days thereafter, without also demanding the signing of a release of liability as a condition thereto.

Considering the above, we find that the trial court's ruling was erroneous. OCGA § 9-11-56(c).

JUDGMENT REVERSED.

BANKE, P.J., and BEASLEY, J., concur.

ON MOTION FOR REHEARING

The contract addendum extending the closing date of the sale and...