Wellington Square, LLC Wellington filed suit to recover the earnest money held by the escrow agent, Warren M. Schmitz & Associates Realty Co., Inc., Schmitz on behalf of the would-be purchaser. In an effort to avoid any obligation with respect to the earnest money or otherwise, Schmitz filed a motion to dismiss, challenging the sufficiency of the description of the property in the sales contract. In granting partial summary judgment to Wellington, the trial court determined that the property description did not violate the Statute of Frauds. Schmitz and the would-be purchaser appeal that finding. Under an “Atlanta Board of Realtors Standard Commercial Sales Agreement,” as amended, Wellington agreed to sell and Thuong N. Nhan and Xugen Thi Nguyen collectively Purchaser agreed to buy all that tract of land Wellington Square at Indian Trail Lilburn and Dickens Road as more particularly described in Exhibit ‘A’ attached hereto and by this reference made a part hereof, together with all improvements now located thereon, including all electrical, mechanical, plumbing and other systems and all fixtures located therein, as well as plants, trees and shrubbery thereon collectively, the ‘Property. Exhibit A was never attached.1 Nhan and Nguyen agreed to pay the purchase price of $2,965,000 for the property. The sales agreement acknowledged Schmitz’s role in acting “as an agent for Purchaser” and stated that the “Broker accepts its designation as Escrow Agent hereunder and agrees to hold and disburse the Earnest Money in accordance with Georgia law and as provided herein.” Schmitz held $50,000 deposited by Nhan and Nguyen. Michele O’Donnell executed the agreement on behalf of Schmitz.
Nhan and Nguyen agreed to assume Wellington’s existing loan on the property. Paragraph 1 of the special stipulations stated, a portion of the purchase price shall be paid by Purchaser’s assumption of, and agreement to pay, the obligations of Seller under that certain Promissory Note dated September 25, 1997 the ‘Note’, payable by Seller to GMAC Commercial Mortgage Corporation ‘Lender’. The Note is secured by a deed to secure encumbering the Property, and evidences indebtedness the ‘Loan’ in the original principal amount of $2,150,000.00 in favor of Lender. The parties later executed Amendment # 1 which modified the agreement so that the “Purchaser shall obtain a new loan and pay off the balance and pre-paid yield prepayment differential of seller’s existing loan accordingly.” Thus, as amended, the agreement required Nhan and Nguyen to prepay rather than to assume Wellington’s existing loan.
