Luck v. Regions Bank

• Decision Date: 27 February 2001
• Docket Number: No. A00A2419.,A00A2419.
• Citation: Luck v. Regions Bank, 248 Ga. App. 290, 546 S.E.2d 342 (Ga. App. 2001)
• Parties: LUCK v. REGIONS BANK et al.
• Court: Georgia Court of Appeals

546 S.E.2d 342

248 Ga. App. 290

LUCK v. REGIONS BANK et al.

No. A00A2419.

Court of Appeals of Georgia.

February 27, 2001.

Adkins & Whitfield, Russell L. Adkins, Jr., James R. Whitfield, Marietta, for appellant.

John T. Brown, Commerce, Ellisa Garrett, Athens, for appellees.

ELLINGTON, Judge.

Jesse Von Luck appeals the trial court's orders entering judgment notwithstanding a mistrial in favor of Regions Bank and Virginia A. Skinner in this dispute arising out of a real estate transaction. Luck sued Skinner for breach of contract and both Skinner and Regions for converting $23,000 Luck alleged should have been disbursed to him upon closing the sale of his chicken farm to Skinner. After declaring a mistrial because the jury could not reach a verdict, the trial court granted Regions' and Skinner's motions for judgment notwithstanding the mistrial. Because conflicting evidence remains for jury resolution, we must reverse.

A motion for a judgment notwithstanding a mistrial is analogous to a motion for a directed verdict or motion for judgment notwithstanding the verdict in that the same can be sustained only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom[,] shall demand a particular verdict. OCGA § 9-11-50(a).

(Citations and punctuation omitted.) Rubio v. Davis, 231 Ga.App. 425, 425-426, 500 S.E.2d 367 (1998). On appeal from a grant of a motion for judgment notwithstanding a mistrial, we view the evidence and the inferences reasonably supported by the evidence in favor of the nonmovant. See Famiglietti v. Brevard Med. Investors, 197 Ga.App. 164(1), 397 S.E.2d 720 (1990); Findley v. McDaniel, 158 Ga.App. 445, 446 447(1), 280 S.E.2d 858 (1981).

Viewed in this light, the record reveals that 64-year-old Luck had to sell his chicken farm to avoid foreclosure. Luck, after being in the business since he was 14 years old, lost his contract with his chicken supplier because he could not make the required repairs or upgrades to his facility. Luck, who had a fifth grade education and was illiterate asked his friend, real estate agent Francis Wilkes, to list the property for him. After Wilkes' listing expired, another agent, Hardy Edwards, approached Luck through Wilkes with an offer on the property from Skinner. Skinner, who lived in Connecticut, had contacted Edwards and asked him to show her some farm properties in Georgia. In late August 1992, Luck agreed to sell his farm to Skinner for $350,000, even though the purchase price was less than the $392,500 he paid for it. Wilkes and Edwards drafted the real estate contract that Luck signed. Edwards drafted the contract's special stipulations. Both Wilkes and Edwards explained the contract to Luck since he could not read. Edwards then directed Skinner to Regions, which was, at that time, the First National Bank of Jackson County, where she sought financing.

Although Regions wanted Skinner to put down 20 percent of the purchase price, it agreed to make her a 90 percent loan. Regions' settlement statement reflects that it loaned Skinner $316,800-90 percent of the $352,000 sale price, which was adjusted to account for earnest money and moving expenses. To obtain this financing from Regions, Skinner had to make the chicken farm operational so that she could get a letter of commitment from Harrison Company, the same chicken supplier Luck had used. Consequently, the real estate sales contract contained two provisions pertinent to those repairs. First, Exhibit C to the real estate sales contract provided:

All parties hereto acknowledge that this sale is subject to and contingent upon ... [the purchaser having] negotiated a contract acceptable to them and [having] received a letter of commitment from a poultry integrator of their choosing. Any repairs to the existing poultry house and/or equipment contained therein, in order to obtain said letter of commitment[,] shall be born [sic] solely by purchasers. In as much as the price and terms of this agreement are agreed upon with the improvements and equipment to be delivered to purchasers in the same condition at closing as they are on the date of execution of this agreement.

The contract also contained this special stipulation: "Purchasers to place $23,000.00 of sales proceeds on deposit with lender at the time of closing, said sum to be disbursed to Purchaser upon completion of improvements and repairs to subject property in a like sum following closing."

Luck, his companion Joanne Moss, and Wilkes testified that the contract, as they understood it, did not obligate Luck to pay for repairs to the property. Although Luck initialed the $23,000 repair amount on the special stipulation, he testified that he did that at Edwards' insistence only because a dollar amount for repairs was required to be in the contract. Even Edwards, who drafted the special stipulation, testified that Luck was not required to put money into escrow, that the $23,000 was like a "line of credit," and that he told Luck the money was not coming from him but from the loan proceeds. Wilkes testified that the term "sales proceeds" in the special stipulation was intended to mean the buyer's loan proceeds. Skinner testified that the $23,000 "was part of the money that I borrowed from the bank as my loan that I'd been paying eight percent on [since] the day that I bought [the farm]." Even Jackie Whitfield, who worked for Regions and disbursed the checks at closing, testified that the $23,000 for repairs was built into the $316,800 loan amount to Skinner. Finally, Regions' closing attorney testified that he had to call the bank to verify the interpretation of the contract's special stipulation so that he would know how to allocate the $23,000 on the settlement statement.

Because the bank lost its file on Luck's real estate sale and on the disbursements made to Skinner, no records were introduced tracing the $23,000 in repair funds to or from any specific account. However, Regions' settlement statement reveals that $23,000 was taken from Luck at closing, and Whitfield acknowledged that Regions received the funds and held them for Skinner as a "construction loan." Finally, Whitfield testified that the "bank got into the negotiations with Mr. Luck through his agents" to make the sale and the loan work. He explained that "[e]verybody in the whole deal had to give."

Both Luck and Moss, however, testified that Luck did not expect to give up $23,000. In fact, they testified Luck expected to walk away from closing with about $40,000. Because Luck and Moss worked all day to clean out the farmhouse for Skinner to...