Pollard v. Martin, A89A0258

• Decision Date: 25 May 1989
• Docket Number: No. A89A0258,A89A0258
• Citation: 382 S.E.2d 720,191 Ga.App. 681
• Parties: POLLARD et al. v. MARTIN et al.
• Court: Georgia Court of Appeals

Page 720

382 S.E.2d 720

191 Ga.App. 681

POLLARD et al. v. MARTIN et al.

No. A89A0258.

Court of Appeals of Georgia.

May 25, 1989.

Archer & Howell, Shepherd L. Howell, Cartersville, for appellants.

William D. Payne, James S. Garner III, Larry J. Barkley, Rome, for appellees.

SOGNIER, Judge.

J.L. Todd Auction Company brought this interpleader action to determine which of the defendants, James and Carol Pollard or Larry Martin, was entitled to funds held by Todd in an escrow account. The defendants filed cross-motions for summary judgment, and the Pollards appeal from the trial court's order denying their motion and granting Martin's motion for summary judgment.

The material facts are not disputed. Todd contracted with appellants to auction the real property and inventory of appellants' sporting goods business. Appellee was the high bidder, and he and appellants entered into a contract dated October 16, 1987 for a purchase price of $98,500. Appellee deposited $24,625 with Todd as earnest money. The sales contract provided for a closing within 31 days, but also gave appellants ninety days after written notice from appellee to cure any title defects. On November 16th appellants met with their banker and appellee's attorney in an attempt to clear the $97,000 lien held by the bank. Appellee's counsel informed appellants that other title problems remained, but appellants insisted that the sale be closed the next day. Appellee's attorney responded with a letter to appellants delivered on November 17th in which he detailed eight remaining title problems, including outstanding security deeds and security interests, unpaid taxes, and a judgment lien. Appellee received no response from appellants, and on January 21, 1988 requested return of the earnest money. Appellants objected, contending they were entitled to the funds as liquidated damages for appellee's failure to close the sale by the date specified in the contract. Todd then filed this action and deposited the money into the registry of the court.

1. Appellants enumerate as error the trial court's conclusion that appellee was entitled to summary judgment because of appellants' inability to tender marketable title as required by the contract, contending that questions of fact remain regarding whether appellee's title objections are valid and whether appellants can cure the title problems. However, the record reveals appellants did not raise this issue below, but instead based their argument entirely on the theory that appellee had failed to give timely notice of any alleged title defects. As " '[g]rounds which may be considered on appeal are limited to those which were urged before the trial court' [cit.]," Long v. Marion, 182 Ga.App. 361, 362-363(1), 355 S.E.2d 711 (1987), we will not review this issue. See id. Accordingly, the trial court did not err by granting summary judgment to appellee, see generally Hinkley v. Bldg. Material Merchants, etc., 187 Ga.App. 345, 346-347, 370 S.E.2d 201 (1988), or by ruling that appellee was entitled to the escrowed funds. See Higgins v. Kenney, 159 Ga. 736-737, 748, 126 S.E. 827 (1925).

2. We find meritless appellants' contention that the trial...