Thomas A. Threatt and James W. Threatt, Jr. made the high bid on real and personal property auctioned by the property owner, Kenny Rogers, and entered into a sales contract with Rogers by which the Threatts agreed to purchase the property for $6,342,500 and to make a ten percent earnest money payment in the amount of $634,250. The sales contract further provided that, if the Threatts failed to consummate the sale, Rogers would retain the earnest money as liquidated damages. The Threatts delivered the earnest money in the form of a $634,250 check to Felix Graham of Graham & Associates, who served as the closing attorney and escrow agent pursuant to the terms of the sales contract. However, the Threatts subsequently claimed that the sales contract improperly failed to convey certain personal property included in the auction, and they stopped payment on the check and refused to close the sale. Rogers sued the Threatts for specific performance, breach of contract, and fraud, and sought the imposition of a trust on the Threatts’ assets along with the award of litigation expenses pursuant to OCGA § 13-6-11 and punitive damages. Rogers also sued the Threatts’ attorney, George E. Butler II, claiming that Butler agreed to act as an escrow agent to hold a replacement earnest money check issued by the Threatts and that he breached a fiduciary duty owed to Rogers when he failed to tender the earnest money. In response, the Threatts brought various counterclaims against Rogers. In an order entered on December 30, 2002, the trial court granted partial summary judgment in favor of Rogers on some of the Threatts’ counterclaims, and the Threatts sought interlocutory appellate review of the order. Noting that the grant of partial summary judgment in favor of Rogers was directly appealable under OCGA § 9-11-56 h, we nevertheless entered an order granting the Threatts’ application for an interlocutory appeal from the December 30, 2002 order because “this Court will grant a timely application for interlocutory review if the order complained of is subject to direct appeal and the applicants have not otherwise filed a notice of appeal.” Spivey v. Hembree , __Ga. App.__ Case No. A04A1501, decided July 14, 2004. Pursuant to this authority, the Threatts subsequently appealed from the December 30, 2002 order granting partial summary judgment to Rogers in Case No. A04A1523. We note that none of the Threatts’ enumerations of error on appeal pertains to the December 30, 2002 order; rather they address two other orders rendered in the case. Notwithstanding that none of the errors enumerated pertain to the directly appealable December 30 order from which the appeal in Case No. A04A1523 was taken, we have appellate jurisdiction pursuant to OCGA § 5-6-34 d to review other orders rendered in the case which may affect the proceedings and which are raised in the appeal. Young Const., Inc. v. Old Hickory House &c., Inc. , 210 Ga. App. 559 436 SE2d 581 1993; Southeast Ceramics, Inc. v. Klem , 246 Ga. 294, 295 271 SE2d 199 1980. In Case No. A04A1524, Rogers cross-appeals from the trial court’s grant of summary judgment in favor of Butler and from the denial of his motion for partial summary judgment against the Threatts. OCGA § 5-6-38.
A04A1523
