Robert H. and Carolyn E. Goldsmith filed suit against John R. and Yvonne Peterson on March 1, 2007, seeking reimbursement of their escrow deposit, interest and attorney fees, arising out of a Purchase and Sales Agreement signed by the parties in connection with the sale of the Petersons’ property. The Petersons filed a counterclaim seeking $93,000 in damages and attorney fees. Following a jury trial, the trial court entered a judgment in favor of the Petersons on their counterclaim in the amount of $3,000 plus $28,388.45 in attorney fees. The Goldsmiths subsequently filed a “Motion for and Brief in Support of a Judgment Notwithstanding the Verdict or in the Alternative for a New Trial.” The trial court denied the motion, and the Goldsmiths appeal. The parties entered into the Purchase and Sales Agreement on May 23, 2006. The Agreement set a purchase price of $469,000 for the property and required the Goldsmiths to pay earnest money of $7500. It further provided that the transaction was conditioned upon the Goldsmiths’ “ability to obtain a loan” for 90 percent of the purchase price at 6.5 percent per annum. The Agreement defined the phrase “ability to obtain a loan” to mean that the Goldsmiths are “qualified to receive the loan . . . based upon the lender’s customary and standard underwriting criteria.” Under the Agreement, the Goldsmiths were expressly “obligated to close this transaction if they have the ability to obtain a loan with the same terms and/or any other loan for which the Goldsmiths have applied and been approved.”
The Goldsmiths took the position that they could not obtain a loan pursuant to the terms set forth in the Agreement, and because this precondition was not met, the contract was invalid, entitling them to a return of their earnest money. Nevertheless, the evidence at trial showed that within two days of the Agreement’s execution, on May 25, 2006, SunTrust Mortgage, Inc. preapproved the Goldsmiths for a loan complying with the terms of the Agreement. The preapproval letter states that the Goldsmiths had a choice of a number of different options but elected to pursue a loan structure involving two loans for 80 percent and 10 percent respectively. A SunTrust senior mortgage consultant testified that the Goldsmiths’ preapproval would have covered a 30-year fixed rate mortgage at 6.5 percent with either 10 or 20 percent down, but they chose the two-loan structure in order to avoid paying mortgage insurance, a savings of approximately $200 per month. At some point, however, the Goldsmiths decided not to purchase the property, and the transaction never closed.
