                              SECOND DIVISION
                                MILLER, P. J.,
                           ANDREWS and BROWN, 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


                                                                       May 24, 2018




In the Court of Appeals of Georgia
 A18A0108. MILLER v. TATE et al.

      MILLER, Presiding Judge.

      After Charles Tate and Kevin Gleason entered into a purchase and sale

agreement to purchase Kim Miller’s house, the sale fell through, and Tate and

Gleason (collectively “the buyers”) filed suit against Miller for breach of contract.

Following a trial, the jury found in favor of the buyers, and the trial court denied

Miller’s motion for judgment notwithstanding the verdict (“JNOV”). Thereafter, the

trial court ordered specific performance of the contract to purchase the property.

Miller now appeals. After a thorough review of the record, we conclude that the trial

court erred in denying the motion for JNOV because the delay in closing the purchase

was attributable to the buyers and, therefore, the buyers were in breach of the contract

and were not entitled to specific performance. Accordingly, we reverse.
      [O]n appeal from a trial court’s rulings on motions for directed verdict
      and judgment notwithstanding the verdict, we review and resolve the
      evidence and any doubts or ambiguities in favor of the verdict; directed
      verdicts and judgments notwithstanding the verdict are not proper unless
      there is no conflict in the evidence as to any material issue and the
      evidence introduced, with all reasonable deductions therefrom, demands
      a certain verdict.


(Citations and punctuation omitted.) Fertility Tech. Resources, Inc. v. Lifetek

Medical, Inc., 282 Ga. App. 148, 149 (637 SE2d 844) (2006); see also OCGA § 9-11-

50 (a) (“If 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, such verdict shall be directed.”).

      So viewed, the evidence shows that Tate and Gleason entered into a business

together in which they would purchase properties to renovate and resell.

In July 2013, Miller put his property in the Virginia-Highland part of Atlanta on the

market.1 On July 22, 2013, Tate and Miller entered into a purchase and sale

agreement (“the Agreement”) in which Tate agreed to buy Miller’s property for

$487,400 cash, with closing scheduled for August 15, 2013. A few days later, the



      1
          At the time, Miller lived in California and had been renting out the house.

                                           2
parties amended the Agreement to add Gleason’s name as a buyer. Although Miller

had accepted Tate’s offer, he began regretting his decision to sell the property.

      The Agreement provided for an extension of the closing date by either party

unilaterally if “Buyer’s mortgage lender, if any, (including in “all cash” transactions)

or the closing attorney cannot fulfill their respective obligations by the date of the

closing, provided that the delay is not caused by the Buyer.” (the “unilateral extension

clause”) (Emphasis supplied.) The Agreement further provided, “[a]ll parties agree

to do all things reasonably necessary to timely and in good faith fulfill the terms of

this Agreement.”

      Between the time the property went under contract and the date of the closing,

the parties engaged in negotiations to (i) extend the closing date, (ii) remove certain

contingencies from the Agreement, and (iii) remove Tate’s name as a buyer in the

Agreement. The parties, however, were unable to reach any consensus on these

amendments, and none of the amendments were signed. Therefore, both Tate and

Gleason continued to be named as the buyers on the Agreement.

      Although Tate remained a party to the Agreement, and the Agreement specified

that it was a cash sale, Gleason obtained a mortgage loan for the purchase. Gleason

asked the bank’s closing attorney if it was acceptable if only he, and not Tate, was

                                           3
listed on the deed. The bank’s closing attorney advised Gleason that it was

acceptable. Gleason testified that, had he be instructed that the deed required both

names, he would not have asked the bank’s closing attorney to prepare the deed with

his name alone. It is undisputed, however, that the closing documents were prepared

as Gleason directed and that he and Tate wanted the deed and loan to be in Gleason’s

name only for purposes of their business.

      On August 13, 2013, the closing attorney emailed Miller copies of the closing

documents, which he had previously requested. Those documents were solely in

Gleason’s name.

      On August 15, Miller arrived at the closing and asked to see the deed. He then

spoke briefly with his own attorney before advising the closing attorney that he would

not sign the documents to complete the sale because the deed was only in Gleason’s

name. Although the closing attorney testified that she could have contacted Tate

regarding the possibility of him signing the closing documents through a power of

attorney, the bank would have had to approve this change, and there was no testimony

at trial that the documents could have been amended on the day of the closing.

Ultimately, the deed was not amended by the end of the closing day, and Miller did

not sign the documents.

                                          4
      The buyers sought to invoke the unilateral extension clause and reschedule the

closing for August 22 in order to amend the deed and closing documents so that both

Tate and Gleason were named. Although the lender and closing attorney had the

corrected documents prior to the rescheduled closing date, Miller did not attend that

closing.

      Shortly thereafter, the buyers filed the instant suit claiming breach of contract.

Miller counterclaimed for breach of contract. The jury found in the buyers’ favor, and

the trial court denied Miller’s motion for JNOV. Miller now appeals.

      1. Miller contends that there was insufficient evidence to support the jury’s

verdict because the closing was delayed due to Gleason’s own conduct and thus

Gleason was not permitted to invoke the unilateral extension clause.2 We agree.

      The construction of a contract is a question of law that we review de novo. Holt

& Holt, Inc. v. Choate Constr. Co., 271 Ga. App. 292 (609 SE2d 103) (2004).

      The elements of a breach of contract claim are breach and resultant
      damages to a party with the right to complain about the breach. A breach
      occurs if a contracting party repudiates or renounces liability under the


      2
        Miller also contends that the trial court erred in denying his motions for
summary judgment. Once the case proceeded to a verdict in a jury trial, however,
Miller’s summary judgment motions were moot. AgSouth Farm Credit, ACA v.
Gowen Timber Co., Inc., 336 Ga. App. 581, 586 (1) (784 SE2d 913) (2016).

                                          5
      contract; fails to perform the engagement as specified in the contract; or
      does some act that renders performance impossible.


(Citations and punctuation omitted.) Cordell & Cordell v. Gao, 331 Ga. App. 522,

526 (4) (a) (771 SE2d 196) (2015).

      Each contract by which one employs another to sell real estate must be
      construed according to its particular stipulations. The first rule that
      courts must apply when construing contracts, including real estate
      contracts, is to look to the plain meaning of the words of the contract.
      The matter of contract construction is a question of law for the Court
      that is subject to de novo review.


(Citation omitted.) Reynolds Properties, Inc. v. Bickelmann, 300 Ga. App. 484, 487

(685 SE2d 450) (2009).

      Here, the Agreement clearly provided that the buyers would be both Tate and

Gleason and that the purchase would be all in cash. Nonetheless, it is undisputed that

only Gleason’s name appeared on all of the closing documents and the deed. Thus,

the buyers failed to adhere to the terms of the Agreement, specifically, that both Tate

and Gleason would purchase the property, and the closing could not proceed on the

closing date under the Agreement’s express terms.3 See, e.g., Sage Technology, Inc.

      3
        There is conflicting evidence as to whether Miller knew of the deficiency in
the closing documents and deed prior to closing. Even assuming that he was aware,

                                           6
v. NationsBank, N. A. South, 235 Ga. App. 405, 408 (3) (509 SE2d 694) (1998)

(purchaser breached the agreement by failing to deposit necessary funds prior to

closing and seller was therefore authorized to terminate sale).

      However, the contract contained an extension clause permitting the parties to

unilaterally extend the closing date under certain circumstances. Thus, to determine

whether the breach was attributable to the buyers or Miller depends on the

construction of this clause.

      The extension clause provided that the parties could extend closing if “Buyer’s

mortgage lender, if any, (including in “all cash” transactions) or the closing attorney

cannot fulfill their respective obligations by the date of the closing, provided that the

delay is not caused by the Buyer.” (Emphasis supplied.) The evidence at trial showed

that Gleason requested the deed contain his name alone and that the exclusion of

Tate’s name was at Gleason’s express direction. Because Gleason directed that the

deed be drafted in a way that did not comply with the terms of the Agreement, he was

the cause of the delay in closing, and the buyers were unable to invoke the unilateral

his failure to sign the closing documents was not a breach. See Dodson v. Kern, 136
Ga. App. 522, 527 (221 SE2d 693) (1975) (“Mere silence will not work an estoppel.
The ‘standing by’ must be under such circumstances as not only to afford an
opportunity to speak, but also to create a real or apparent duty to speak.”) (citation
and punctuation omitted).

                                           7
extension clause. In other words, the evidence demanded a verdict in Miller’s favor,

and Miller was entitled to JNOV.4

      Accordingly, we reverse the trial court’s order denying Miller’s motion for

JNOV.

      2. In light of our conclusion that Miller was entitled to JNOV, we need not

address Miller’s remaining enumerations of error.

      Judgment reversed. Andrews and Brown, JJ., concur.




      4
         We recognize that the bank’s closing attorney informed Gleason that it was
acceptable for his name alone to be on the deed. However, this does not provide a
basis to conclude that the cause of the delay was attributable to anyone other than
Gleason. Questions of whether the bank’s closing attorney owed any duty to the
buyers is separate from the question of breach of the contractual terms set out in the
Agreement between the buyers and Miller. Cf. Driebe v. Cox, 203 Ga. App. 8, 10 (1)
(416 SE2d 314) (1992) (seller had no claim against buyer’s attorney for negligence
in drafting deed because the seller knew the attorney represented the buyer).

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