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Hernandez v. Carnes

The statute of frauds did not render unenforceable an oral agreement between a buyer and a seller of commercial property to suspend a written installment contract until the buyer resolved a tax issue on the property, since some evidence showed that the buyer fully performed his obligations under the oral agreement and that the seller accepted the benefit of such performance.

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In a dispute over an installment contract to purchase land, buyer Juan Hernandez appeals the denial of his motion for partial summary judgment and the grant of summary judgment to seller Anthony Carnes, contending that the trial court erred in ruling that a subsequent oral agreement to temporarily suspend payments under the written installment contract was unenforceable. For the reasons that follow, we reverse the grant of summary judgment to Carnes, affirm the denial of partial summary judgment to Hernandez, and remand.Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp .1 So viewed, the record shows that, in September 2001, Hernandez entered into a written agreement assigning him the buyer’s interest in a written installment contract for the purchase of commercial property.2 His predecessor had begun paying installments in 1995. From September 2001 to December 2003, Hernandez made monthly amortized payments towards the $53,900 purchase price plus 9.5 percent interest charged under the contract.

The installment contract required the buyer to make additional payments to the seller for property taxes, based on tax bills which the seller was required to provide to the buyer 30 days in advance of their due date. The seller was also required to exhibit the receipted bill to the buyer. If the buyer failed to make a timely tax payment to the seller, the seller was authorized pay the taxes and charge the buyer 9.5 percent interest on the tax payment.

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