                               FIFTH DIVISION
                              MCFADDEN, P. J.,
                           MCMILLIAN and GOSS, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      June 17, 2019




In the Court of Appeals of Georgia
 A19A0483. BODIFORD v. WALTZ et al.

      MCFADDEN, Presiding Judge.

      In this action seeking to enforce an alleged oral agreement conveying an

interest in land, the trial court granted summary judgment in favor of the defendants,

finding, among other things, that such an oral agreement is unenforceable under the

Statute of Frauds. Because the trial court correctly found that there are no genuine

issues of material fact and that the defendants are entitled to judgment as a matter of

law, we affirm.

      1. Facts and procedural posture.

      “Summary judgment is warranted when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. On appeal from

the grant or denial of summary judgment, we conduct a de novo review, with all
reasonable inferences construed in the light most favorable to the nonmoving party.”

Parke Town North Apartments v. Castro, ___ Ga. App. ___ (1) (824 SE2d 730)

(2019) (citation and punctuation omitted).

      So construed, the evidence shows that Harold Fail owned 26.68 acres of land

on the Savannah River known as Ebenezer Landing, where he operated a public boat

ramp and parking lot. In March 1999, Fail and Steve Bodiford entered into an oral

agreement whereby Bodiford would reside on the property; manage the operation of

Ebenezer Landing; maintain and improve the property as needed; use money

collected from the boat ramp and parking lot to pay all necessary expenses, including

taxes; use his own money to pay excess expenses if the money collected was

insufficient; and equally split the remaining profits with Fail. According to Bodiford,

the oral agreement also provided that he would receive a one-third undivided interest

in Ebenezer Landing and/or one third of the net proceeds upon the sale of Ebenezer

Landing.

      Bodiford resided on and managed the operation of Ebenezer Landing until

Fail’s death in September 1999. In his last will and testament, Fail left Ebenezer

Landing to his two children, Jimmy Fail and Sandra Waltz. After Fail’s death, his

children verbally agreed to let Bodiford continue living on, managing, and sharing

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in the profits of Ebenezer Landing, which Bodiford continued to do for approximately

16 years. In August 2015, Jimmy Fail served Bodiford with notice to vacate the

property.

      In June 2016, Bodiford filed the instant action seeking to enforce the alleged

March 1999 oral agreement with Harold Fail purportedly giving Bodiford an interest

in Ebenezer Landing. The defendants moved for summary judgment.1 The trial court

granted the motion, finding, among other things, that the alleged oral agreement

concerning an interest in lands was unenforceable under the Statute of Frauds.

Bodiford appeals.

      2. Statute of Frauds.

      “Under OCGA § 13-5-30 (4), Georgia’s Statute of Frauds, a contract ‘for sale

of lands, or any interest in, or concerning lands’ must be ‘in writing and signed by the

party to be charged therewith.’” Dobson v. Matt Owens Logging, 326 Ga. App. 879,

881 (755 SE2d 374) (2014). Accord Zhong v. PNC Bank, NA, 345 Ga. App. 135, 146

(3) (b) (i) (812 SE2d 514) (2018) (Statute of Frauds requires that contracts for an

      1
       Sandra Waltz and Jimmy Fail are both deceased and survived by their
respective spouses, Ronald Waltz and Tressa Fail. Pursuant to a consent order
substituting parties, the named defendants in the case are now Ronald Waltz and
Tressa Fail, as co-administrators of the estate of Harold Fail, and Ronald Waltz as the
executor of the estate of Sandra Waltz.

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interest in or concerning lands be in writing). “Such a writing must include every

essential element of the contract, including the identity of the parties, a legally

adequate description of the property, the consideration, and the terms of payment.”

Estate of Ryan v. Shuman, 288 Ga. App. 868, 871 (1) (655 SE2d 644) (2007) (citation

omitted).

      In the instant case, it is undisputed that no such writing exists. As Bodiford

concedes in his appellate brief, “this case involves an alleged oral agreement

involving an interest in land, not a written contract.” Nevertheless, he argues that the

alleged oral agreement is still enforceable under the part performance exception to the

Statute of Frauds set forth in OCGA § 13-5-31 (3). “Under that part performance

exception, the writing requirement of the Statute of Frauds is inapplicable ‘where

there has been such part performance of the contract as would render it a fraud of the

party refusing to comply if the court did not compel a performance.’ OCGA § 13-5-31

(3).” Carter v. Parish, 274 Ga. App. 97, 99 (1) (616 SE2d 877) (2005). See also

Troutman v. Troutman, 297 Ga. App. 62, 65 (1) (676 SE2d 787) (2009) (Statute of

Frauds does not extend to cases where there has been part performance of the contract

that would render it a fraud if performance of the refusing party were not compelled).

However, an oral “contract sought to be enforced based on part performance must be

                                           4
certain and definite in all essential particulars.” Troutman, supra (citation and

punctuation omitted). “To be valid, an agreement to convey an interest in land must

be certain enough to enable either party to enforce it according to its terms.” Lemming

v. Morgan, 228 Ga. App. 763, 764 (1) (492 SE2d 742) (1997).

      The alleged oral agreement [conveying an interest in land] in this case
      was not sufficiently certain or definite to be enforceable. The agreement
      [Bodiford] seeks to enforce had no specific provisions regarding when
      transfer of title, division of proceeds, or sale of the propert[y] was to
      take place; . . . [or] how, when or by whom it would be decided whether
      the propert[y] would be sold. . . . The fact that [Bodiford] may have
      performed his obligations under the purported agreement does not
      require a different outcome.

Id. at 764-765 (1).

      “With respect to the part performance of a parol contract described in OCGA

§ 13-5-31 (3), to remove the contract from the operation of the Statute of Frauds, the

part performance shown must be consistent with the presence of a contract and

inconsistent with the lack of a contract.” Payne v. Warren, 282 Ga. App. 524, 526

(639 SE2d 528) (2006) (citation and punctuation omitted; emphasis in original). Here,

while Bodiford’s operation of Ebenezer Landing and his sharing in expenses and

profits of the operation may have been consistent with the presence of the alleged oral

contract, such performance was not inconsistent with lack of a contract conveying an


                                          5
interest in the property to him. See Carter, supra at 100 (1) (plaintiff’s actions were

not inconsistent with the lack of the alleged oral contract).

       We note that Bodiford has claimed that he also agreed to make improvements

to the property and sometimes help pay property taxes. But he has not identified any

such purported improvements or tax payments in his appellate brief, or cited any

specific evidence in the record. He has cited to over 500 pages of ledgers, most of

which are handwritten, which he generally claims reflect his performance under the

contract. “It is not the duty of this court to cull the record on a party’s behalf to locate

information or facts in support of a party.” Cook v. Smith, ___ Ga. App. ___ (4) (825

SE2d 439) (2019) (citation and punctuation omitted). Under these circumstances,

Bodiford has failed to present any “evidence of part performance sufficient to remove

the alleged oral agreement from the Statute of Frauds. The [defendants were thus]

entitled to summary judgment in their favor . . . because the alleged oral agreement

was unenforceable under the Statute of Frauds.” Stoker v. Bellemeade, LLC, 272 Ga.

App. 817, 821 (2) (615 SE2d 1) (2005), reversed in part on other grounds,

Bellemeade, LLC v. Stoker, 280 Ga. 635 (631 SE2d 693) (2006). See also Payne,

supra at 527.

       3. Other enumerations.

                                             6
         Given our holding above, we need not reach the remaining enumerations of

error.

         Judgment affirmed. McMillian and Goss, JJ., concur.




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