Homelife Communities Group v. Rosebud Park
| Decision Date | 23 June 2006 |
| Docket Number | No. A06A0258.,A06A0258. |
| Parties | HOMELIFE COMMUNITIES GROUP, INC. v. ROSEBUD PARK, LLC. |
| Court | Georgia Court of Appeals |
Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, Atlanta, for appellant.
Webb, Tanner & Powell, Robert J. Wilson, Lawrenceville, for appellee.
Homelife Communities Group, Inc. ("Homelife") filed suit for specific performance after Rosebud Park, LLC, refused to transfer certain real property to it pursuant to a purchase and sale contract. Rosebud Park contended that it was under no obligation to do so because the contract, drafted by Homelife, provided that the closing must occur within 11 months from the date the contract was signed and the closing did not take place within 11 months of that date. Homelife asserts, however, that specific performance should have been granted because Rosebud Park was responsible for the failure of the sale to take place.
After a bench trial, the trial court found that the contract expired by its terms and declared that the agreement was terminated. Homelife appeals from that judgment. Although the trial court also denied Rosebud Park's counterclaims for slander of title and punitive damages, Rosebud Park has not appealed from that judgment.
The standard of review of a non-jury trial of disputed material facts is the clearly erroneous test under OCGA § 9-11-52. When a question of law is at issue, as here, we owe no deference to the trial court's ruling and apply the "plain legal error" standard of review. Glover v. Ware, 236 Ga.App. 40, 45(3), 510 S.E.2d 895 (1999). Employing that standard of review, we find that the trial court has construed the contract incorrectly and must reverse.
The parties executed a purchase and sale agreement drafted by Homelife and accepted by Rosebud Park on December 1, 2003, which obligated Rosebud Park to sell the property in question to Homelife and Homelife to buy the property. A provision in the agreement stated that
[t]he closing shall be held at [a certain office] within thirty (30) days of recording of the plat for the subdivision but not later that 11 months from the date of this agreement and subject to clearance of any and all title defects except the Permitted Exceptions defined below. If Purchaser fails to close on or before thirty (30) days from the date of recording of the final plat, Purchaser shall be in default.
Another provision in the agreement provided that time was of the essence. The agreement does not state specifically the effect of the Seller's failure to record the plat for the subdivision, but the agreement does contain the following provision:
In the event the transaction contemplated hereby is not closed because of Seller's default, then the Earnest Money shall be promptly refunded in full to Purchaser and Purchaser may elect to exercise the remedy of specific performance as its sole and exclusive remedy and shall not have the right of action for damages.
The plat was never recorded because, according to Rosebud Park, recording the plat was dependent upon two other developers' efforts to install a pump station and Rosebud Park could not obtain a final plat until the county accepted all the projects. As Rosebud Park did not record the plat, the sale did not close within 11 months of the execution of the agreement because approval from the county was not received until April 2005.
When the sale did not close, Rosebud Park viewed the contract as having expired, and sent a release to Homelife confirming that the agreement had expired. Nevertheless, Homelife, taking the position that it was not obligated to close because Rosebud Park had not recorded the plat or provided utilities as required by the agreement, demanded that Rosebud Park close the sale. Homelife further contended that the 11-month provision was wholly in its favor and that it could waive the provision.
Rosebud Park refused to close, and Homelife then filed this action for specific performance. After the bench trial, the trial court found that the controlling provision in the contract was not...
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