Giddens Construction Co. v. Fickling & Walker Co.

Court of Appeals of Georgia

Giddens Construction Co. v. Fickling & Walker Co.

373 S.E.2d 792, 188 Ga. App. 558, 1988 Ga. App. LEXIS 1151

CourtCourt of Appeals of Georgia

DecidedSeptember 9, 1988

Docket76620

StatusPublished

Cited by7 cases

This text of 373 S.E.2d 792 (Giddens Construction Co. v. Fickling & Walker Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Giddens Construction Co. v. Fickling & Walker Co., 373 S.E.2d 792, 188 Ga. App. 558, 1988 Ga. App. LEXIS 1151 (Ga. Ct. App. 1988).

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Opinions

Birdsong, Chief Judge.

This is an appeal of the grant of summary judgment denying punitive damages.

1. Appellee asserts that punitive damages are not recoverable in a contract action and that appellant’s complaint avers no cause of action sounding in tort. We disagree. The substance of matters pleaded in the complaint places appellee on due notice of its alleged liability arising from acts and omissions relating directly and independently to breaches of duty arising from the fiduciary relationship of the parties. The complaint sets forth a cause of action in tort. See Rawls Bros. Co. v. Paul, 115 Ga. App. 731 (1) (155 SE2d 819). We are satisfied that the facts of this case establish that the appellee was the duly appointed subagent of appellant and was appellant’s fiduciary regarding those matters within the scope of the agency. See generally Dolvin Realty Co. v. Holley, 203 Ga. 618, 622 (48 SE2d 109); Stanford v. Otto Niederer & Sons, 178 Ga. App. 56 (1) (341 SE2d 892); see 3 AmJur2d, Agency, § 210-212.

2. We find the facts of this case distinguishable from Williams v. Northside Realty Assoc., 116 Ga. App. 253, 254 (157 SE2d 166). “The cardinal rule of construction [of a contract] is to ascertain the intention of the parties,” OCGA § 13-2-3, and “[e]scrow agreements will be given a reasonable construction in order to carry out the manifest intentions of the parties,” 11 EGL, Escrows, § 6. The addendum creating the escrow expressly provided that time was of the essence and that if the sale was not consummated for any reason by November 30, 1985, the escrow monies would be forfeited. It is clear from the lan[559]*559guage of the addendum that the parties intended and agreed that the appellant would receive exclusive ownership of the monies in escrow upon their forfeiture, and that, as time is of the essence, the escrow holder would tender the funds immediately to the appellant. Further, it clearly was the intent of the parties that if the sale was not consummated by November 30, 1988, the sales contract immediately would become null and void and the escrow would be automatically and immediately terminated. In this regard, the requirement that “[t]ime is of the essence” was not limited by the parties to any particular provision in the addendum, but was drafted without restriction to apply to all addendum actions intended and agreed upon by the parties. Thus, appellee’s reliance on Williams to shield it from liability is misplaced.

This is not an action between the buyer and seller contesting ownership of the escrow funds, but an action between the seller and his fiduciary. Under the terms of this particular addendum, drafted by the appellee, when the sale was not consummated on the specified date the escrow immediately terminated and any dual agency that may have existed terminated with it. From that point, appellee resumed acting solely as appellant’s fiduciary, subject to all duties that relationship imposed. Among these duties is the duty not to dispute the principal’s (appellant’s) right or title to the funds (money); and, appellee is estopped by law from doing so. OCGA § 10-6-26; Courts v. Jones, 61 Ga. App. 874, 876 (8 SE2d 178); 11 EGL, Estoppel, § 70; see also OCGA § 24-4-24.

3. Appellee claims that it was merely following requirements contained in the Rules of the Georgia Real Estate Commission, § 520-1-.34, by requiring the signing of a release as a prerequisite to the disbursement of the $1,400. We do not find this argument persuasive. First, the Rules do not require the execution of a release of liability by either the buyer or seller prior to disbursement of funds previously held in escrow. Secondly, to the extent that the rules conflict with the terms of the addendum, they are not capable of enforcement. Panfel v. Boyd, 186 Ga. App. 214, 220 (367 SE2d 54), cert. granted. As above discussed, the addendum required appellee to tender immediately the funds to appellant when the sales contract and addendum terminated on November 30, 1985.

Further, appellee’s assertion that he could not give the required 30-day notice, pursuant to § 520-1-.34 (3) is not persuasive. We will not speculate what appellant’s conduct would have been if immediately after the expiration of the extended time period appellee had notified appellant of his intent to disburse the funds to appellant 30 days thereafter, without also demanding the signing of a release of liability as a condition thereto.

Appellee’s other assertions also are without merit.

Considering the above, we find that the trial court’s ruling was [560]*560erroneous. OCGA § 9-11-56 (c).

Judgment reversed.

Banke, P. J., and Beasley, J., concur.

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Birdsong, Chief Judge.

This is an appeal of the grant of summary judgment denying punitive damages.

1. Appellee asserts that punitive damages are not recoverable in a contract action and that appellant’s complaint avers no cause of action sounding in tort. We disagree. The substance of matters pleaded in the complaint places appellee on due notice of its alleged liability arising from acts and omissions relating directly and independently to breaches of duty arising from the fiduciary relationship of the parties. The complaint sets forth a cause of action in tort. See Rawls Bros. Co. v. Paul, 115 Ga. App. 731 (1) (155 SE2d 819). We are satisfied that the facts of this case establish that the appellee was the duly appointed subagent of appellant and was appellant’s fiduciary regarding those matters within the scope of the agency. See generally Dolvin Realty Co. v. Holley, 203 Ga. 618, 622 (48 SE2d 109); Stanford v. Otto Niederer & Sons, 178 Ga. App. 56 (1) (341 SE2d 892); see 3 AmJur2d, Agency, § 210-212.

2. We find the facts of this case distinguishable from Williams v. Northside Realty Assoc., 116 Ga. App. 253, 254 (157 SE2d 166). “The cardinal rule of construction [of a contract] is to ascertain the intention of the parties,” OCGA § 13-2-3, and “[e]scrow agreements will be given a reasonable construction in order to carry out the manifest intentions of the parties,” 11 EGL, Escrows, § 6. The addendum creating the escrow expressly provided that time was of the essence and that if the sale was not consummated for any reason by November 30, 1985, the escrow monies would be forfeited. It is clear from the lan[559]*559guage of the addendum that the parties intended and agreed that the appellant would receive exclusive ownership of the monies in escrow upon their forfeiture, and that, as time is of the essence, the escrow holder would tender the funds immediately to the appellant. Further, it clearly was the intent of the parties that if the sale was not consummated by November 30, 1988, the sales contract immediately would become null and void and the escrow would be automatically and immediately terminated. In this regard, the requirement that “[t]ime is of the essence” was not limited by the parties to any particular provision in the addendum, but was drafted without restriction to apply to all addendum actions intended and agreed upon by the parties. Thus, appellee’s reliance on Williams to shield it from liability is misplaced.

This is not an action between the buyer and seller contesting ownership of the escrow funds, but an action between the seller and his fiduciary. Under the terms of this particular addendum, drafted by the appellee, when the sale was not consummated on the specified date the escrow immediately terminated and any dual agency that may have existed terminated with it. From that point, appellee resumed acting solely as appellant’s fiduciary, subject to all duties that relationship imposed. Among these duties is the duty not to dispute the principal’s (appellant’s) right or title to the funds (money); and, appellee is estopped by law from doing so. OCGA § 10-6-26; Courts v. Jones, 61 Ga. App. 874, 876 (8 SE2d 178); 11 EGL, Estoppel, § 70; see also OCGA § 24-4-24.

3. Appellee claims that it was merely following requirements contained in the Rules of the Georgia Real Estate Commission, § 520-1-.34, by requiring the signing of a release as a prerequisite to the disbursement of the $1,400. We do not find this argument persuasive. First, the Rules do not require the execution of a release of liability by either the buyer or seller prior to disbursement of funds previously held in escrow. Secondly, to the extent that the rules conflict with the terms of the addendum, they are not capable of enforcement. Panfel v. Boyd, 186 Ga. App. 214, 220 (367 SE2d 54), cert. granted. As above discussed, the addendum required appellee to tender immediately the funds to appellant when the sales contract and addendum terminated on November 30, 1985.

Further, appellee’s assertion that he could not give the required 30-day notice, pursuant to § 520-1-.34 (3) is not persuasive. We will not speculate what appellant’s conduct would have been if immediately after the expiration of the extended time period appellee had notified appellant of his intent to disburse the funds to appellant 30 days thereafter, without also demanding the signing of a release of liability as a condition thereto.

Appellee’s other assertions also are without merit.

Considering the above, we find that the trial court’s ruling was [560]*560erroneous. OCGA § 9-11-56 (c).

Judgment reversed.

Banke, P. J., and Beasley, J., concur.

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373 S.E.2d 792, 188 Ga. App. 558, 1988 Ga. App. LEXIS 1151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giddens-construction-co-v-fickling-walker-co-gactapp-1988.

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