Medlin v

Morganstern, 268 Ga. App. 116, 601 S.E.2d 359 (2004). When a retired police officer to whom a city had paid more retirement benefits than the police officer was entitled sued the city for breach of contract when the city corrected the error, the city was entitled to summary judgment because the city’s contract with the officer required the payment of the amount of retirement benefits that the city paid after correcting the error, and the city clerk who caused the error had no authority to change that contract, so the contract was not breached. Dodd v. City of Gainesville, 268 Ga. App. 43, 601 S.E.2d 352 (2004). Summary judgment for the storage companies on an owner’s breach of contract claim was proper because the owner failed to show that the storage companies breached any duty owed under the contract; the contract clearly provided that the contract created no duty on the part of the storage companies to protect the owner’s personal property and that the owner assumed all risk of loss. Liberty v. Storage Trust Props., L.P., 267 Ga. App. 905, 600 S.E.2d 841 (2004). Because the trial court was faced with an ambiguity in a covenants declaration regarding the construction of improvements on commercial property, the court erred in granting summary judgment to the property’s owner and the lessee, and finding that the ambiguity had to be construed against the developer, instead of first attempting to resolve the ambiguity by applying the rules of contract construction provided in O.C.G.A. § 13-2-2(4). White v. Kaminsky, 271 Ga. App. 719, 610 S.E.2d 542 (2004). Trial court did not err in dismissing a nine-count complaint filed by two uninsured patients, for failing to state a claim and treated as a motion for summary judgment, alleging that a health care provider overcharged the patients for medical care received at rates grossly in excess of the rates charged to private medical insurers, or to Medicare/Medicaid benefit programs, as the parties entered into a valid contract, which the provider did not breach, and the patients failed to support the patients’ claims that the provider committed an unfair trade practice or breached a fiduciary duty owed to the patients. Morrell v. Wellstar Health Sys., Inc., 280 Ga. App. 1, 633 S.E.2d 68 (2006). In a dealer’s action for breach of contract and trespass to chattel against two buyers following the buyers’ purchase of a vehicle, the trial court properly granted summary judgment to the dealer as the buyers’ breach of contract, trespass to chattel, and default on the purchase agreement essentially waived any right they had to arbitrate the dispute; moreover, an appeal as to the propriety of the supersedeas bond imposed was dismissed as moot. Almonte v. West Ashley Toyota, 281 Ga. App. 808, 637 S.E.2d 755 (2006), cert. denied, 2007 Ga. LEXIS 71 (2007). In a buyer’s suit arising out of a failed deal to sell the seller’s business seeking damages for breach of contract and specific performance, the trial court erred in granting summary judgment to the sellers as construction of the plain language of an addendum to the parties’ letter of intent to sell the business showed that the parties had reached a binding agreement on all material terms concerning the purchase and sale of that business. Goobich v. Waters, 283 Ga. App. 53, 640 S.E.2d 606 (2006). Based on the application of a merger clause in an expressed and lawful property sales contact, and the clear and unambiguous intent not to hold the lenders liable for transactions concerning the conveyance of a beach house made as consideration supporting the sale, summary judgment was properly granted to the lenders on the sellers’ claims of fraud, concealment, breach of contract and unjust enrichment filed against the sellers. Donchi, Inc. v. Robdol, LLC, 283 Ga. App. 161, 640 S.E.2d 719 (2007). Trial court did not err in awarding summary judgment to the State Medical Education Board, making a student liable for both the amount of the scholarship received and attorney’s fees, as: (1) estoppels were unfavored under Georgia law; (2) the student came forward with no more than hearsay to support a claim that oral misrepresentations of fact were made regarding the scholarship; (3) the contract was not rescinded by either party; (4) no mutual mistake of fact was found; and (5) any impossibility in performing the contract was personal to the student. Calabro v. State Med. Educ. Bd., 283 Ga. App. 113, 640 S.E.2d 581 (2006). Because a buyer failed to comply with provisions of its contract with a seller requiring written notice of a breach, this failure barred the buyer from relying on the seller’s alleged breach of the agreement as a basis for the buyer’s refusal to close and demand for refund of the earnest money; but, because the seller complied with the notice provision by notifying the buyer that the buyer’s refusal to close placed the buyer in breach or default of the agreement and that the buyer had 15 days to cure the breach or default, upon the buyer’s failure to do so, the buyer was entitled to summary judgment and to retain the earnest money as liquidated damages. Pillar Dev., Inc. v. Fuqua Constr. Co., 284 Ga. App. 858, 645 S.E.2d 64 (2007), cert. denied, 2007 Ga. LEXIS 669 (Ga. 2007). Under the same transaction test, because the claims raised by a buyer in a Georgia state court were judicially determined in litigation between the parties in both the federal district court and the federal circuit court of appeals, and also sought redress for the same wrongs, the state court did not err in denying the buyer’s partial summary judgment motion regarding those wrongs. BKJB P’ship v. Moseman, 284 Ga. App. 862, 644 S.E.2d 874, cert. denied, 2007 Ga. LEXIS 558 (Ga. 2007). Upon construction of a contract between an independent contractor and a billboard owner under O.C.G.A. § 13-2-2 because: (1) it was clear that the contractor did not waive any right to recover against the owner under any possible scenario, but only waived a right to recover against the owner’s predecessor for damages if the waiver did not invalidate the insurance coverage; and (2) the contract only waived the owner’s liability if the waiver did not invalidate the contractor’s insurance, summary judgment was erroneously entered to the owner on grounds that the contractor waived a right to recover from the owner and because the trial court failed to consider whether the waiver invalidated the contractor’s insurance. Holmes v. Clear Channel Outdoor, Inc., 284 Ga. App. 474, 644 S.E.2d 311 (2007). While the trial court properly found that a separate and independent contract made the subject of the buyers’ breach of contract counterclaim against the seller unenforceable, supporting summary judgment for the seller on the buyers’ counterclaim, the court erred in finding that the buyers’ denial of any liability to the seller on the seller’s complaint was insufficient; thus, the seller was not entitled to summary judgment on the seller’s complaint for payment under a consignment contract and for attorney fees. Jones v. Equip. King Int’l, 287 Ga. App. 867, 652 S.E.2d 811 (2007). On appeal from an order granting a broker’s customer summary judgment in the broker’s breach of contract action, because the merger doctrine did not apply to the fee contract involving a broker and the customer and the loan contract between the lender and the customer, and material fact issues remained as to the compensation due to the broker, and as to what effect, if any, a modification of the amount of the broker’s fee had on the Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) broker’s fee agreement with the broker’s customer, summary judgment in the customer’s favor was reversed. Atlanta Integrity Mortg., Inc. v. Ben Hill United Methodist Church, Inc., 286 Ga. App. 795, 650 S.E.2d 359 (2007). While the trial court did not err in entering an order granting partial summary judgment to a city on the city’s breach of contract claim against a county and the county’s tax commissioner, ruling that the latter breached the county’s contract to bill, collect, and remit ad valorem taxes on the city’s behalf because the county was not given adequate notice that the trial court would address the amount of damages incurred by the city as a result of the county’s breach, the grant of summary judgment as to the damages issue was reversed on due process grounds. Ferdinand v. City of East Point, 288 Ga. App. 152, 653 S.E.2d 529 (2007), cert. denied, 2008 Ga. LEXIS 213 (Ga. 2008). In a breach of contract action filed by a school against an enrolled student’s parents seeking payment of a full year’s tuition, the trial court properly granted summary judgment to the school as the parents failed in the parents’ burden of showing that a liquidated damages clause in the contract amounted to an unenforceable penalty. Turner v. Atlanta Girls’ Sch., Inc., 288 Ga. App. 115, 653 S.E.2d 380 (2007). Because the third party failed to present sufficient evidence supporting that party’s position that the third party had a right, as successor in interest, to sue on a creditor’s account with the creditor’s debtor in order to support the third party’s right, summary judgment in the third party’s favor in a suit against the debtor was erroneously entered. Ponder v. CACV of Colo., LLC, 289 Ga. App. 858, 658 S.E.2d 469 (2008). Summary judgment for a bank was proper on a corporation’s breach of contract, promissory estoppel, and fraud claims as the bank did not promise not to foreclose the bank’s superior mortgage on a property under any circumstances; the bank simply promised to pay the corporation if lots were sold and the corporation removed the corporation’s materialman’s lien. Kesco, Inc. v. Brand Banking Co., 268 Ga. App. 874, 603 S.E.2d 49 (2004). Trial court properly denied summary judgment to an independent medical utilization review provider for an employee benefit health plan on a plan participant’s breach of contract claim as the participant asserted a third party beneficiary claim against the review provider under a side contract between the review provider and the plan sponsor. Monroe v. Bd. of Regents of the Univ. Sys., 268 Ga. App. 659, 602 S.E.2d 219 (2004). Summary judgment was improperly granted in favor of a limited partner on that partner’s claim that a corporation’s breach of contract claim against the partner was barred by the four year statute of limitations applicable to contracts for the sale of goods under O.C.G.A. § 11-2-725 because the contract involved a conveyance of leasehold interests in real property for oil and gas exploration, not the sale of oil and gas. Summary judgment should have been awarded in favor of the corporation on the corporation’s claim that the six year statute of limitations in O.C.G.A. § 9-3-24, which was applicable to contracts in writing, applied and did not bar the action. ABF Capital Corp. v. Yancey, 264 Ga. App. 850, 592 S.E.2d 492 (2003). Trial court improperly granted summary judgment to a claims administrator for an employee benefit health plan on a plan participant’s breach of contract claim as the participant raised a jury question on the issue of whether the claims administrator performed the administrator’s contractual obligations. Monroe v. Bd. of Regents of the Univ. Sys., 268 Ga. App. 659, 602 S.E.2d 219 (2004). Contract for specific performance. — Grant of summary judgment to the plaintiff on the plaintiff ’s action for specific performance of a contract provision that allegedly required the defendant to sell the defendant’s stock to the plaintiff was affirmed; the trial court properly found that the contract required one partner to sell that partner’s corporate stock to another partner at book value as determined by the corporation’s CPA, and that the contract was valid, enforceable, and supported by valuable consideration. Auldridge v. Rivers, 263 Ga. App. 396, 587 S.E.2d 870 (2003). Attorney fee contracts. — Trial court properly granted summary judgment to an attorney in the attorney’s action to collect fees due under a written fee agreement with a former client as the attorney provided the services outlined within the contract, and the former client failed to produce any competent evidence supporting an affirmative defense of failure of consideration after the attorney made a prima facie case for summary judgment. Browning v. Alan Mullinax & Assocs., P.C., 288 Ga. App. 43, 653 S.E.2d 786 (2007). Real estate sales contract. — In an action arising from the sale of a condominium unit, the trial court did not err in denying the owners’ summary judgment motion on the owners’ claim of a right of first refusal, as the owners had no such right, but the owners were properly granted summary judgment on the buyer’s claims of tortious interference with contractual and business relations and for punitive damages as the owners had a legitimate right to protect when the owners voted on the sale of the subject unit. Quality Foods, Inc. v. Smithberg, 288 Ga. App. 47, 653 S.E.2d 486 (2007), cert. denied, 2008 Ga. LEXIS 316 (Ga. 2008). Contract for marital settlement. — Trial court erred in granting summary judgment to the executors on an action to enforce a marital settlement agreement entered into before one spouse died as the agreement, which was a contract, was not unenforceable for lack of consideration, but the surviving spouse was also not entitled to judgment as a matter of law because issues regarding the deceased spouse’s capacity to enter into the agreement and the surviving spouse’s possible rescission of the contract had to be considered by a jury. Guthrie v. Guthrie, 259 Ga. App. 751, 577 S.E.2d 832 (2003), aff ’d, 277 Ga. 700, 594 S.E.2d 356 (2004). Contract to make a will. — In an action to enforce a contract to make a will, the trial court erred in denying both parties’ motions for summary judgment since the contract recited adequate consideration and, thus, was not illusory but was binding, the contract was not in furtherance of an immoral relationship and thus unenforceable, and the contract had not been abandoned; thus, there were no issues for which a jury decision was required. Abrams v. Massell, 262 Ga. App. 761, 586 S.E.2d 435 (2003). Contracts between contractors. — When a subcontractor sought compensation from a contractor for increased labor costs caused by the contractor, the contractor was not entitled to summary judgment dismissing the subcontractor’s claim as: (1) the subcontractor did not waive the subcontractor’s claim by failing to respond to the contractor’s denial thereof within 48 hours as the contractor only decided whether the subcontractor could legally assert the subcontractor’s claim; (2) the subcontractor’s agreement to perform the subcontractor’s work according to the contract’s timetable did not bar the subcontractor’s claim, as this only barred claims for delays contemplated by the parties when the contract was signed, and this provision did not address whether the subcontractor was entitled to compensation for increased labor costs; (3) change orders the subcontractor signed did not bar the subcontractor’s claim as it sought damages for disruption, and not merely damages for delay; and (4) a ‘‘no damages for delay’’ provision in the contractor’s contract with the owner did not bar the subcontractor’s claim because it conflicted with a superseding provision of the contractor’s contract with the subcontractor allowing the subcontractor to seek compensation for interferences and delays. Atl. Coast Mech. v. R. W. Allen Beers Constr., 264 Ga. App. 680, 592 S.E.2d 115 (2003). Summary judgment on contract issues. — Appellees failed to present any evidence establishing the appellees’ status as the current holders of an interest in the contract at issue, despite the appellant’s allegation that the contract between them has since been assigned by the appellees to a third party; therefore, since the appellant’s objection that the appellees are not the real parties in interest had yet to be addressed, the trial court erred in Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) granting the appellees’ motion for summary judgment. Sawgrass Bldrs., Inc. v. Key, 212 Ga. App. 138, 441 S.E.2d 99 (1994). Lease contracts. — Because fact issues remained as to whether a lessee’s conduct in attempting to exercise a credit amounted to a waiver of the credit, and whether the lessee made a good-faith, prompt, and diligent effort to resolve the amount due under a commercial lease so as to prevent the lessor from terminating the lease and gaining possession, both of which a jury was to decide, summary judgment was improperly entered on the lessor’s claim for rent, and properly denied on the lessor’s petition for a writ of possession. Eckerd Corp. v. Alterman Props., 264 Ga. App. 72, 589 S.E.2d 660 (2003). Because a lessee failed to create an issue of fact regarding whether the lessor breached the parties’ underlying commercial lease or whether the lessee waived the alleged breach, the trial court correctly granted the lessor’s motion for summary judgment on the lessee’s breach of contract claim. Nguyen v. Talisman Roswell, L.L.C., 262 Ga. App. 480, 585 S.E.2d 911 (2003). Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56(c) to the defendants in an action for breach of a lease by the successor in interest to the lessor as the defendants admitted that the defendants had defaulted on the lease and that the successor was owed back rent. Gilco Invs., Inc. v. Stafford Cordele, LLC, 267 Ga. App. 167, 598 S.E.2d 889 (2004). Because a sublease was ambiguous regarding a sublessee’s obligation to pay operating expenses due under the master lease, fact questions remained as to the parties’ intent, and a trial court erred in entering summary judgment for the sublessee. Holcim (US), Inc. v. AMDG, Inc., 265 Ga. App. 818, 596 S.E.2d 197 (2004). Indemnity contracts. — In an action to recover under an indemnity agreement, because the undisputed facts showed that a party was estopped from denying the validity of a bond, and that the party indemnified a surety for payments made thereunder, the surety was properly granted summary judgment as to the party’s liability for monies paid under the bond. Samda Inv. Group, LLC v. Western Sur. Co., 287 Ga. App. 235, 651 S.E.2d 152 (2007). Because the debtor read a plain, unambiguous guaranty contract and signed the contract as written, the court enforced the contract as written and granted summary judgment to the bank; summary judgment on damages was reversed because, although the remainder of the damages could be calculated on the record, no evidence in the record supported the post-closing interest rate. Charania v. Regions Bank, 264 Ga. App. 587, 591 S.E.2d 412 (2003). Guaranty contract. — As no matter of fact was involved, the construction of a guaranty was a matter of law for the court, which found that the guaranty executed by a guarantor contained a very broad waiver clause that plainly and unambiguously waived any claims the guarantor might have had against the debtor and extended to claims arising in equity, or under contract, statute, or common law; the waiver obviously included a claim under O.C.G.A. § 10-7-41, so the trial court erred by denying summary judgment to the debtor and other defendants, and erred as well in granting summary judgment in favor of the guarantor. Brookside Cmtys., LLC v. Lake Dow N. Corp., 268 Ga. App. 785, 603 S.E.2d 31 (2004). Because an agent for a limited liability company and a builder’s vice president testified that the parties negotiated and agreed on the terms of a construction contract including price, time, and the form of the contract, and the limited liability company authorized the builder to begin, the facts showed that the parties entered into an enforceable contract, and since a contract existed, the members’ personal guaranties of the construction contract were valid; a trial court’s summary judgment in favor of the builder on the members’ personal guaranties was affirmed. Marett v. Brice Bldg. Co., 268 Ga. App. 778, 603 S.E.2d 40 (2004). In an action to collect unpaid rent and fees owed by a lessee to a lessor under a lease agreement, the trial court properly granted partial summary judgment to the lessor, and against the lessee and the lessee’s guarantor, as: (1) the language in the lease could not be construed to limit or modify the guarantor’s pre-existing obligations under the guaranty through the time of the guarantor’s revocation of the lease; and (2) the language of the guaranty, standing alone, was unambiguous and created an unconditional, continuing guaranty. The Cupboard, LLC v. Sunshine Travel Ctr., 283 Ga. App. 34, 640 S.E.2d 584 (2006). In an action on a guaranty, because the plain and unambiguous terms of the guaranty and the guaranty’s addendum only obligated the guarantor to the lease obligations of the original tenant, who was also the guarantor’s subsidiary, and not the obligations of a new tenant, the guarantor was properly absolved of any liability to the landlord for the obligations of that new tenant, entitling the tenant to summary judgment on that issue. Highwoods Realty L.P. v. Cmty. Loans of Am., Inc., 288 Ga. App. 226, 653 S.E.2d 807 (2007). Successor in interest tax liability. — Order granting summary judgment on the issue of a successor in interest’s liability for unpaid taxes in favor of that successor was reversed as the successor failed to protect itself from successor liability for the unpaid sales and use taxes owed by the successor’s predecessor under O.C.G.A. § 48-8-46, and the successor failed to protect itself against unrecorded tax liens to the extent allowed by the statute. Graham v. JD Design Group, Inc., 281 Ga. App. 347, 636 S.E.2d 66 (2006). Warranty contracts. — Summary judgment should have been granted to a store, pursuant to O.C.G.A. § 9-11-56(c), in an action by a dissatisfied customer who asserted causes of action for breach of an express warranty and a violation of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., as the customer failed to offer evidence of the terms of the warranty, which made both claims lack any foundation; the alleged warranty was based on a store employee’s notation on the customer’s receipt that the kitchen cabinets that the customer purchased had a ‘‘10-year warranty,’’ but there was no indication of any further terms, so there was no enforceable warranty proven. Home Depot U.S.A., Inc. v. Miller, 268 Ga. App. 742, 603 S.E.2d 80 (2004). Consent decree. — Summary judgment was affirmed because no construction was required of a consent decree; therefore, the trial court was required to enforce the agreement as written. Since the terms of a settlement agreement were clear and unambiguous in requiring that a motorist pay $24,600 to settle a wrongful death claim, the settlement agreement was for new money and did not consider credit for $10,000 already paid by the motorist’s insurer; if the parties had intended to give credit for the earlier payment, the settlement agreement would have stated this. Hicks v. Walker, 265 Ga. App. 495, 594 S.E.2d 710 (2004). When a tenant who terminated the tenant’s lease early and agreed to pay the landlord the difference between the tenant’s rental obligation and rent the landlord was able to obtain from a third party said this agreement was a guaranty from which the tenant had been discharged, the landlord was entitled to partial summary judgment on the landlord’s breach of contract claim in the landlord’s suit to enforce the agreement because the agreement was not a guaranty subject to the discharge provisions of O.C.G.A. § 10-7-20 et seq., as the tenant did not agree to be answerable for the debt of another but, instead, agreed to continue the tenant’s rental obligation to the landlord, subject to any credit the tenant might be entitled to for rent the landlord received from a third party. Equifax, Inc. v. 1600 Peachtree, L.L.C., 268 Ga. App. 186, 601 S.E.2d 519 (2004). Breach of car dealership agreement. — Summary judgment was properly entered for an automobile manufacturer on a dealership’s claim that the manufacturer improperly terminated the parties’ dealership agreement as the agreement was terminated after the dealership closed the dealership’s business and the dealership’s property was foreclosed; the termination was not Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) procedurally defective as the termination notice was sent to the dealership’s location of record, to the owner of the dealership at the owner’s home address, and to the dealership’s attorney. Greensboro Ford, Inc. v. Ford Motor Co., 267 Ga. App. 773, 600 S.E.2d 631 (2004). Summary judgment was properly entered for an automobile manufacturer on a dealership’s claim that the manufacturer failed to pay for the repurchase of the dealership’s parts, signage, tools, and equipment as: (1) the dealership failed to return the required release; (2) no vehicles were left at the dealership because the inventory had been seized, impounded, and sold; (3) the property on which the dealership was located had been foreclosed; (4) when the business relocated, the dealership was no longer receiving cars or parts from the manufacturer; and (5) the dealership presented no evidence of the value of the items that the dealership contended the dealership should have been paid for. Greensboro Ford, Inc. v. Ford Motor Co., 267 Ga. App. 773, 600 S.E.2d 631 (2004). Vehicle purchase agreements. — Absent a confidential relationship between a lienholder and a prospective buyer of a vehicle subject to a lien, and absent any duty on the lienholder to disclose any problems with the vehicle’s title to the buyer, the lienholder was properly granted summary judgment on the buyer’s negligence, fraudulent concealment, and derivative claim for punitive damages. Lilliston v. Regions Bank, 288 Ga. App. 241, 653 S.E.2d 306 (2007), cert. denied, 2008 Ga. LEXIS 275 (Ga. 2008). Foreclosure sales. — In a wrongful foreclosure proceeding, summary judgment was properly granted in favor of the foreclosing seller because the seller showed that the buyer failed to maintain property insurance or to pay the taxes and assessments due, as required under a security deed; in addition, the propriety of the foreclosure sale was established through an attorney’s affidavit and a newspaper publisher’s affidavit. Ledford v. Darter, 260 Ga. App. 585, 580 S.E.2d 317 (2003). Tax foreclosure sales. — Trial court properly granted summary judgment to the property owner on the property owner’s action that sought to set aside a deed executed pursuant to a judicial tax foreclosure sale. No genuine issue existed but that the tax sale was void because the sale was from a grantor who did not have title to the property to the property purchaser and that the sale could not pass title, which remained in the property owner. Canoeside Props. v. Livsey, 277 Ga. 425, 589 S.E.2d 116 (2003). Request for disclosure of tax records. — Trial court properly granted summary judgment to the corporation on the corporation’s request for disclosure of the individual’s tax records, which the corporation sought for the limited purpose of determining whether the individual’s business properly qualified as a disadvantaged business regarding the awarding to it of a city contract for airport advertising, as Georgia’s Open Records Act, O.C.G.A. § 50-18-70 et seq., favored the disclosure of public records, and neither the individual nor the city could find a specific exception that applied to bar disclosure under such circumstances. City of Atlanta v. Corey Entm’t, Inc., 278 Ga. 474, 604 S.E.2d 140 (2004). Foreclosure actions. — Because the debtor failed to send written notice of the correct address of the subject property to the bank or the bank’s agents, and could not assert an absent grantee’s priority to escape the consequences of the debtor’s own failure to provide a correct property address to all future holders of the note and deed, the foreclosure sale was not set aside; thus, the trial court properly granted summary judgment to the bank and the assignees of the security interest on the ground that the bank provided sufficient notice of the foreclosure sale. Jackson v. Bank One, 287 Ga. App. 791, 652 S.E.2d 849 (2007), cert. denied, 2008 Ga. LEXIS 169 (Ga. 2008). In a foreclosure action between a bank and the bank’s debtors, given that the debtors failed to substantiate the claims of error asserted on appeal with sufficient evidence to create a jury question, and the bank committed no wrong in attempting to collect on a prior judgment against the debtors, summary judgment was properly entered to the bank, disposing of all the debtors’ counterclaims filed against the bank. All Fleet Refinishing, Inc. v. W. Ga. Nat’l Bank, 280 Ga. App. 676, 634 S.E.2d 802 (2006). Wrongful foreclosure. — Lender was properly granted summary judgment on a borrower’s claims for wrongful foreclosure and breach of contract because the borrower defaulted and the borrower’s claims were barred by releases of liability in loan modification documents. Heritage Creek Dev. Corp. v. Colonial Bank, 268 Ga. App. 369, 601 S.E.2d 842 (2004). Georgia Land Sales Act. — Trial court properly granted summary judgment against a home buyer’s claim that the sale of the property at issue failed to comply with the Georgia Land Sales Act (Act), O.C.G.A. § 44-3-1 et seq., as the property contained a house suitable for occupancy at the time of the sale; further, despite the buyer’s argument that the statutory exemption under O.C.G.A. § 44-3-4(2) did not apply to residential property, giving the words of the exemption their plain and ordinary meaning, the exemption had to be read as excluding from the Act property upon which either a commercial building, an industrial building, a condominium, a shopping center, a house, or an apartment house was situated. Mancuso v. Steyaard, 280 Ga. App. 300, 640 S.E.2d 50 (2006). Land sales contracts. — In an action between a buyer and a seller arising out of a land sales contract, because a question of material fact remained as to whether the failure to close was the buyer’s fault, and because both an oral waiver and waiver by conduct could be inferred, the trial court erred in granting summary judgment to the seller. Miller v. Coleman, 284 Ga. App. 300, 643 S.E.2d 797 (2007). In an action arising out of an alleged breach of a land sales contract, given that the trial court relied on findings of fact that had been resolved only in the context of the ruling on an interlocutory injunction filed by the buyer, and that issues of material fact plainly remained as to whether the seller fulfilled the contractual obligations to designate land adjacent to the buyer’s property for use as a city or county road, the trial court’s grant of summary judgment to the seller had to be reversed. Taylor v. Thomas, 286 Ga. App. 27, 648 S.E.2d 426 (2007). In an action filed by a trust and its trustee against a school board alleging breach of a real estate contract, or in the alternative, specific performance of the contract at a reduced purchase price, summary judgment in favor of the school board was reversed on the breach of contract claim; however, summary judgment on the specific performance claim was affirmed as the trust failed to tender the full purchase price, which was a prerequisite to a specific performance demand, the trust was not excused from doing so, and a tender would not have been futile. Peaches Land Trust v. Lumpkin County Sch. Bd., 286 Ga. App. 103, 648 S.E.2d 464 (2007). In a dispute over an installment contract to purchase land, because evidence sufficiently showed that a buyer partially performed a subsequent oral agreement that was not barred by a merger clause contained in the contract, and the seller accepted the benefit of such performance, summary judgment to the seller was erroneous; moreover, given that jury questions as to part performance of the oral agreement remained, the order denying the buyer’s partial summary judgment motion was upheld. Hernandez v. Carnes, 290 Ga. App. 730, 659 S.E.2d 925 (2008). Suit against real estate agents. — Trial court properly dismissed an action that a homebuyer filed against the buyer’s real estate agent and a seller’s real estate agent after the ignition of natural gas that had leaked from the fireplace in the buyer’s house because there was no evidence that either agent knew about the leak, concealed the leak, or provided false information about the value of the house. Resnick v. Meybohm Realty, Inc., 269 Ga. App. 486, 604 S.E.2d 536 (2004). Trial court erred in granting summary judgment to a home seller and against a realtor in construing the unambiguous language in the brokerage agreement at issue, which was for a definite term and was not terminable at will; moreover, alApplicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) though a sale was not consummated, the realtor remained entitled to the realtor’s six percent commission, and the seller remained obligated to pay that amount, which was the proper measure of damages. Ben Farmer Realty, Inc. v. Owens, 286 Ga. App. 678, 649 S.E.2d 771 (2007), cert. denied, 2008 Ga. LEXIS 81 (Ga. 2008). Third party beneficiary. — Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56(c) to the Stone Mountain Memorial Association and to the Georgia Department of Corrections in a breach of contract action by an inmate who was injured while on a work detail that was required by the Department on the Association’s property as the inmate was not an intended beneficiary of the contract pursuant to O.C.G.A. § 9-2-20(b); although the contract provided for the safety of the workplace, those contract provisions were not intended to benefit the inmates on work details but, instead, the inmates were just incidental beneficiaries. Gay v. Ga. Dep’t of Corr., 270 Ga. App. 17, 606 S.E.2d 53 (2004). In a breach of contract action filed by an employee, who was a third-party beneficiary to an employment contract with a contractor, the trial court erred in granting the employee summary judgment as: (1) under the plain language of the employment agreement at issue between the parties, as well as the county’s personnel policy, the contractor was authorized to terminate the employee based on the employee’s inability or unfitness to perform the assigned duties due to an injury; and (2) the employee could not perform all the job’s requirements. Am. Water Serv. USA v. McRae, 286 Ga. App. 762, 650 S.E.2d 304 (2007), cert. denied, 2007 Ga. LEXIS 761 (Ga. 2007). Because a valid general release entered into by a home buyer and home builder effectuated a binding accord and satisfaction barring any future claims between the parties, and absent evidence to void the release based on fraud, the buyer’s filed claims in a subsequent suit filed against the home builder were properly summarily dismissed; thus, assessment of attorney fees was not an abuse of discretion and a penalty for filing a frivolous appeal was ordered. Pacheco v. Charles Crews Custom Homes, Inc., 289 Ga. App. 773, 658 S.E.2d 396 (2008). Contract action involving road construction. — Summary judgment pursuant to O.C.G.A. § 9-11-56 was properly granted in the county’s action to recover money had and received by the contractor because the contractor asserted that the contract, which was for road striping and which was not opened for public bidding, was for a specialized service under O.C.G.A. § 32-4-63(5), an exception to the public bidding requirements under O.C.G.A. § 32-4-64; however, O.C.G.A. § 32-1-3(6) expressly defined road striping as a form of road construction and not as a special service. Howard v. Brantley County, 260 Ga. App. 330, 579 S.E.2d 758 (2003). Trial court erred in granting summary judgment on a homebuyer’s breach of contract claim against the buyer’s realtor as material fact issues remained as to whether the realtor violated the realtor’s duties under the Brokerage Relationships in Real Estate Transaction Act, O.C.G.A. § 10-6A-1 et seq.; however, summary judgment was proper, based on the testimony presented on the motion, as to the homebuyer’s fraudulent concealment claim. Ikola v. Schoene, 264 Ga. App. 338, 590 S.E.2d 750 (2003). Employment contracts. — Trial court did not err by granting summary judgment to a company on an employee’s action to enforce an employment agreement and a promise to convey 20 percent of the company’s stock to the employee because: (1) the indefinite statement in the employment contract of the employee’s duties, the term of the employment, and the employee’s salary made the employment contract unenforceable; and (2) the promise of 20 percent of the company’s stock was for past consideration, and that was not sufficient consideration to make the promise enforceable. Key v. Naylor, Inc., 268 Ga. App. 419, 602 S.E.2d 192 (2004). Because there was some evidence that an employment contract was valid and enforceable, the employer was not entitled to summary judgment; but, the employer was entitled to judgment because the time period for payment of future commissions was too indefinite to be enforced as those commissions were not otherwise billable during the period of employment. Hiers v. ChoicePoint Servs., 270 Ga. App. 128, 606 S.E.2d 29 (2004). In an employee’s suit arising out of the termination of an employment contract, the trial court properly granted the employer’s motion for summary judgment as: (1) as an at-will employee, the employee could be terminated without cause at any time; (2) the employer was authorized to protect the employer’s interest in the employer’s curriculum and property; (3) no evidence supported a claim of slander; and (4) vague statements accusing the employee of a crime did not constitute slander per se. Taylor v. Calvary Baptist Temple, 279 Ga. App. 71, 630 S.E.2d 604 (2006). Upon a de novo review of the plain terms outlined in an employment contract, a former employer was not entitled to receive commission payments from a former employee, a licensed sales agent, for deals closed with the employee’s subsequent employer as any contrary reading would result in an unenforceable contract, under O.C.G.A. § 43-40-19(c); hence, summary judgment was properly granted to the employee on that issue, and the former employer’s claim for money had and received also failed. Richard Bowers & Co. v. Creel, 280 Ga. App. 199, 633 S.E.2d 555 (2006). In an action regarding an alleged breach of an employment contract seeking commissions on deals made by a real estate agent that a former real estate broker alleged it was entitled to, the trial court erred in entering summary judgment against the agent, finding that the agent owed the broker commissions as to one of two contested deals, because: (1) the agent closed the deal with that client after terminating employment with the broker; and (2) it was undisputed that the agent had not agreed to share commissions with the broker on deals struck after the agent left the broker’s employ. Thus, since summary judgment was properly entered in the agent’s favor regarding commissions paid to the agent as to the second of the two contested clients, the broker was not entitled to litigation costs under O.C.G.A.