Shivers v. Webster

• Decision Date: 16 January 1997
• Docket Number: No. A96A1811,A96A1811
• Citation: 480 S.E.2d 304,224 Ga.App. 254
• Parties: , 97 FCDR 139 SHIVERS v. WEBSTER et al.
• Court: Georgia Court of Appeals

Page 304

480 S.E.2d 304

224 Ga.App. 254, 97 FCDR 139

SHIVERS v. WEBSTER et al.

No. A96A1811.

Court of Appeals of Georgia.

Jan. 16, 1997.

Certiorari Denied May 2, 1997.

Burnside, Wall, Daniel, Ellison & Revell, Thomas R. Burnside, Jr., Harry D. Revell, Augusta, for appellant.

Dye, Tucker, Everitt, Wheale & Long, A. Rowland Dye, Glover & Blount, Percy J. Blount, Augusta, for appellees.

RUFFIN, Judge.

John G. Shivers and Lee Webster, Jr. filed two separate specific performance actions to require John W. Walker, Jr. and Louise P. Walker, as executors of the estate of Marion N. Walker, to sell each of them the same 1,200-acre tract of land. Webster sought to enforce an alleged verbal right of first refusal to purchase the land, and Shivers sought to enforce a subsequent written option to purchase the land. The cases were consolidated, and a jury returned a general verdict in favor of Webster. Shivers appeals this verdict, and, for reasons which follow, we affirm.

The record shows that Webster and his family had leased the 1,200-acre farm owned by Marion Walker for over 30 years. John Walker, Sr. ("Walker") was married to Marion Walker, who had given him power of attorney to handle her affairs, including the right to sell the 1,200-acre farm. In the winter of 1988, Walker gave Webster a verbal right of first refusal to purchase the property in the event it was sold. Webster subsequently made valuable improvements to the property and remained in possession of the property. Walker and Webster discussed the right of first refusal repeatedly over the years, and Walker restated it in 1993. Webster admitted the right of first refusal was of unspecified duration, without specific terms, and without any consideration.

On August 25, 1993, John Walker signed a real estate listing agreement for the property with Ann Harden. Walker testified that he repeatedly discussed Webster's right of first refusal with Harden and wrote the following sentence on his copy of the listing agreement at Harden's office and in her presence: "It's understood that Lee Webster has first refusal on this property." The original listing agreement did not contain this sentence.

Shivers testified that on August 27, 1993, he signed an option to purchase the property and gave $1,000 to Ann Harden. Walker admitted that his signature is on Shivers' option agreement. He testified, however, that he did not recall reading or signing the option. According to Walker, he met with Harden and Shivers and informed Shivers that Webster had the right of first refusal.

Shivers denied that he was informed of Webster's right of first refusal and testified that the only thing discussed during his meeting with Harden and Walker was the termination of the farm lease. Shivers' written option did not disclose Webster's right of first refusal, but contained a merger clause providing that neither party was liable for any agreements not included in the option. According to Shivers, Walker subsequently signed a second written agreement on August 30, 1993, extending the option period for an additional 30 days. This agreement likewise did not disclose any right of first refusal.

Walker testified that on the recommendation of Ann Harden and her husband, who was an attorney, he wrote Webster on August 30, 1993. The letter confirmed Webster's right of first refusal and provided him with instructions regarding how to exercise the right. According to the letter, Webster had until September 10, 1993, to advise Walker if he wished to purchase the property. According to Walker, Ann Harden's secretary, whose name was Owens, wrote and typed the letter to Webster, which was approved by Ann and Doc Harden. The letter, dated August 30, 1993, contains the notation "JWW:ro" on the bottom. At trial, however, Doc Harden testified that he did not see the letter, and Ann Harden did not testify.

After receiving the August 30, 1993 letter, Webster met with Walker on September 4, 1993, and gave him a $5,000 check as downpayment on the property. Webster and Walker subsequently selected a closing attorney and agreed to close the sale by the end of the week. Webster checked the courthouse records and found that title was clear. He also attempted to record the August 30, 1993 letter from Walker, but could not because it was not notarized. On September 10, 1993, Webster secured a $250,000 cashier's check to bring to the closing, which was scheduled for the following Monday. On Sunday, however, Webster was contacted regarding a problem with the closing, and he discovered on Monday that an option had been filed by Shivers on September 9, 1993, and that his purchase could not be closed. Webster tendered the $250,000 cashier's check to Walker, but the tender was not accepted. Webster testified he had no prior knowledge of any dealings between Walker and Shivers.

Subsequently, Shivers informed Walker by letter dated September 13, 1993, of his intent to exercise the written option and scheduled a closing. On September 28, 1993, Shivers tendered the $500,000 purchase price to Walker's attorney, but Walker refused to convey the warranty deed.

Both Webster and Shivers filed complaints for specific performance, which were consolidated. Shivers appeals from a jury verdict in Webster's favor.

1. We note intitially that Shivers has violated Court of Appeals Rule 27(c)(1) by combining his first ten enumerations into a single argument. "Accordingly, we shall consider the enumerations en masse, as treated by [Shivers]. Any enumeration not so treated in this opinion is deemed abandoned by [Shivers]. [Cit.]" McMullan v. Georgia Girl Fashions, 180 Ga.App. 228, 229(2), 348 S.E.2d 748 (1986).

According to Shivers, the overriding issue presented by his first ten enumerations is whether "the trial court erred in denying [his] motion in limine which sought to exclude evidence which added to and contradicted two valid written contracts which are at the heart of this controversy." This statement, however, mischaracterizes the real issue in the case: whether a prior oral contract for right of first refusal entitles a party to specific performance in the presence of a subsequent written contract for sale of land.

This case involves more than just a parol evidence question. It involves two different parties with two different contracts. Shivers sought to exclude as parol evidence Walker's testimony that Walker informed Shivers of Webster's right of first refusal, as well as Walker's copy of the listing agreement on which he wrote that Webster had a right of first refusal. This evidence, however, was admissible not to vary the terms of the contract between Shivers and Walker, but to show what knowledge, if any, Shivers had of Webster's rights. "Questions of the relevancy of evidence are for the court. [Cit.] When facts are such that the jury, if permitted to hear them, may or may not make an inference pertinent to the issue, according to the view they may take of them, in connection with the other facts in evidence, they are such that the jury ought to be permitted to hear them. [Cits.]" Ackerman/Adair Realty Co. v. Coppedge, 155 Ga.App. 903, 907(2), 273 S.E.2d 645 (1980). Furthermore, evidence inadmissible for one purpose may be relevant and admissible for another purpose. Gordon v. Gordon, 133 Ga.App. 520, 521 (1), 211 S.E.2d 374 (1974). Here, the evidence was admissible on the issue of Shivers' knowledge. The jury could then decide whether Shivers knew about Webster's claim or whether Shivers was put on notice and had a duty to further inquire into Webster's claim.

While Shivers attempts to attack the validity of Webster's oral contract, it is clear that specific performance of this parol contract can be decreed because Walker admitted the contract. OCGA § 23-2-131(a). Shivers further argues that the merger clause in his written contract controls the case. As between Walker and Shivers, this may be true. However, Webster was not a party to this contract and is not bound by the terms of the agreement between Walker and Shivers. Webster seeks specific performance of his contract and shows that a jury could conclude from the evidence that Shivers had notice of Webster's agreement with Walker.

Thompson v. Arrington, 209 Ga. 343, 72 S.E.2d 293 (1952), cited by Shivers as controlling authority, is distinguishable. The...