FIFTH DIVISION
BROWN, C. J.,
RICKMAN, P. J., and MERCIER, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.gov/rules
June 24, 2026
In the Court of Appeals of Georgia
A26A0201. T&B, LLC et al v. SAMBI et al.
BROWN, Chief Judge.
In 2020, Gaganjot Sambi and Rising Star 14, LLC (“Purchasers”) entered into
a sales contract to purchase three parcels of real estate from Ty Robinson and T&B,
LLC (“Sellers”). Sellers refused to return the earnest money that had been held in an
escrow account after Purchasers elected to terminate the contract during the
inspection period. As a result, Purchasers filed the instant action against Sellers for
breach of contract, breach of implied contract, breach of contractual duty of good faith
and fair dealing, unjust enrichment, conversion, punitive damages and attorney fees.
Purchasers filed a partial motion for summary judgment and Sellers filed a motion for
judgment on the pleadings, or in the alternative, motion for summary judgment. The trial court denied Sellers’ motion and granted Purchasers’ motion for partial summary
judgment on their claims for breach of contract, breach of contractual duty of good
faith and fair dealing and attorney fees. Sellers appeal. For the following reasons, we
affirm in part and reverse in part.
The Contract. The record shows that in June 2020, Sellers and Purchasers
entered negotiations for Purchasers to buy three commercial properties located in
Lawrenceville: 1855 Duluth Highway, 1861 Duluth Highway, and 5150 Sugarloaf
Parkway (collectively, the “Property”). On June 30, 2020, Andy Morgan—an
independent escrow attorney—presented the parties with a land sales contract (the
“Contract”). The Contract agreed that the purchase price would be $2.2 million and
that Purchasers would deposit $50,000 earnest money in an escrow fund prior to
inspection. A document titled “Special Stipulations” was attached as “Exhibit A” to
the Contract. The first Special Stipulation grants a 15-day inspection period
(“Inspection Period”) under the following terms:
1. Seller hereby agrees to give Purchaser until 15 days after acceptance
date (such period to be exclusive of the acceptance date) as an
“Inspection Period” to determine the suitability of the property for his
intended use. If at the end of the Inspection Period Purchaser, at his sole
discretion, determines the property is not suitable for Purchaser’s
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intended use then Purchaser shall notify Seller of such in writing (with
a copy to the Escrow Agent) on or before 11:59 PM on the last day of the
Inspection Period and Escrow Agent shall pay $100.00 of the Escrow
Funds to Seller and promptly refund the remaining $49,900.00 of the
Escrow Funds (less any applicable Escrow Agent fee) to the Purchaser
as full and liquidated damages, relieving the Seller and Purchaser of any
and all obligations contained herein.
The second Special Stipulation sets forth the following steps to be taken at the
conclusion of the Inspection Period:
2. If at the end of the Inspection Period[,] Purchaser does not provide
Seller with notice that the [Property] is not suitable for his purposes,
then the initial $50,000.00 earnest money deposit shall thereafter
become non-refundable; provided Seller does not default or is not
otherwise unable to deliver title to the Property at closing ... Purchaser
will close on or before fifteen (15) days after the last day of the Inspection
Period, provided, however that if such date is not a date on which banks
are open to conduct business, the closing shall take place on the next
available date on which banks are open. If the sale contemplated herein
should not close by the prescribed date due to Purchaser’s default, then
the Escrow Agent shall pay all earnest money to Seller which shall serve
as full and liquidated damages, relieving the Seller and Purchaser of any
and all responsibilities and obligations contained herein.
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First Revised Contract. On July 1, 2020, Purchasers signed the Contract and
returned it to Sellers. On that same date, Sellers sent an e-mail with revisions to the
Contract which deleted two paragraphs from the Contract related to plans to develop
the property prior to closing (“First Revised Contract”). Sellers’ revisions also added
a handwritten third stipulation to the Special Stipulations in “Exhibit A.” This third
Special Stipulation states that “the Seller will assign to Purchaser any plans or permits
for said property in his possession.” Sellers’ email stated that Purchasers had until
6:00 p.m. that day to accept this revised offer.
On July 1, 2020, at 5:59 p.m., Purchasers accepted the deletions on the first
portion of the Contract by e-mail. However, Purchasers’ e-mail failed to return the
revised “Exhibit A,” which included the third Special Stipulation. Purchasers signed
and returned the revised “Exhibit A” on July 2. On July 6, Purchasers placed the
$50,000 earnest money into an escrow account.
Second Revised Contract. On July 16, 2020, the parties again revised the Contract
by changing the Inspection Period from 15 to 17 days. In relevant part, the revision
states: “Seller hereby agrees to give Purchaser until 17 days after acceptance date
(such period to be exclusive of the acceptance date) as an Inspection Period to
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determine the suitability of the property for Purchaser’s intended use (“Second
Revised Contract”). This change was initialed and dated by both parties.
The Termination. On July 19, 2020, Purchasers informed Sellers and the escrow
agent via an e-mail that they did not want to purchase the Property. On July 21,
Sellers, through the escrow agent, rejected the Purchasers’ option to terminate the
Contract and refused to release their claim on the earnest money deposit on the
grounds that the termination notice was submitted a date late.
The Instant Action. Purchasers filed a renewal complaint against Sellers alleging
breach of contract, breach of implied duty of good faith and fair dealing, unjust
enrichment, conversion, and punitive damages. Purchasers also sought attorney fees
under OCGA § 13-6-11. Purchasers filed a motion for partial summary judgment on
their claims for breach of contract, unjust enrichment, breach of the implied duty of
good faith and fair dealing, and attorneys fees. Sellers filed a motion for judgment on
the pleadings. After a hearing, the trial court denied Sellers’ motion for judgment on
the pleadings and granted Purchasers’ motion in part. In its order, the trial court
concluded that Purchasers “accepted the contract on July 1, 2020.”
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The trial court granted Purchasers’ motion for partial summary judgment on
their claim for breach of contract, holding that Purchasers’
termination of the contract was ... timely [because] the period for
inspection does not begin to run until the day after the Contract is
executed. Therefore, it would have begun to run on July 2, 2020, which
would have given the [Purchasers] until July 19, 2020, to notify [Sellers
of] their intent to not move forward with the purchase.
(Emphasis added). The trial court also granted the Purchasers’ motion for partial
summary judgment on their claims for implied duty of good faith and fair dealing
based upon its finding that “Sellers have failed to show any reasonable basis for their
refusal to refund or release their claim to [Purchasers’] earnest money deposit.”
Finally, the trial court granted Purchasers’ motion for partial summary judgment on
their claim for attorney fees under OCGA § 13-6-11. The trial court denied the motion
for partial summary judgment on Purchasers’ claim for unjust enrichment. Sellers
appeal.
1. Summary judgment. In related enumerations of error, Sellers argue that the
trial court erred in granting summary judgement to Purchasers on their claims for
breach of contract and breach of implied duty of good faith and fair dealing. They also
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claim that the trial court erred by awarding summary judgment in favor of Purchasers
on their claim for OCGA § 13-6-11 attorney fees.
Summary judgment is appropriate when the moving party can “show that there
is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law[.]” OCGA § 9-11-56(c).
Summary judgments enjoy no presumption of correctness on appeal, and
an appellate court must satisfy itself de novo that the requirements of
OCGA § 9-11-56(c) have been met. In our de novo review of the grant of
a motion for summary judgment, we must view the evidence, and all
reasonable inferences drawn therefrom, in the light most favorable to the
nonmovant.
Coward v. Widener, 287 Ga. 622, 624(1)(a) (697 SE2d 779) (2010) (citation and
punctuation omitted).
(a) Breach of Contract. Sellers argue that the trial court erred in awarding
summary judgment to the Purchasers on their claim for breach of contract. The crux
of Sellers’ argument is that “the parties understood and intended for the due diligence
period to run from July 1” and thus, the 17-day “due diligence period expired on July
18,” and Purchasers’ failure to timely rescind the agreement meant that they were not
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entitled to a refund of the escrow funds. Accordingly, the dispositive issue is the date
that the Inspection Period terminated.
In Georgia, the construction of contracts involves three steps. At least
initially, construction is a matter of law for the court. First, the trial court
must decide whether the language is clear and unambiguous. If it is, the
court simply enforces the contract according to its clear terms; the
contract alone is looked to for its meaning. Next, if the contract is
ambiguous in some respect, the court must apply the rules of contract
construction to resolve the ambiguity. Finally, if the ambiguity remains
after applying the rules of construction, the issue of what the ambiguous
language means and what the parties intended must be resolved by a jury.
The existence or nonexistence of an ambiguity is a question of law for the
court.
White v. Kaminsky, 271 Ga. App. 719, 721 (610 SE2d 542) (2004). See also Equifax,
Inc. v. 1600 Peachtree, LLC, 268 Ga. App. 186, 191 (601 SE2d 519) (2004) (“Where
the language of a contract is clear and unambiguous and capable of only one reasonable
interpretation, construction of a contract is a matter of law reserved for the trial
court.”).
In this case, we find that the plain and unambiguous terms of the Contract
dictate that the Inspection Period was to begin the day after the Contract was
executed. Specifically, the first stipulation on “Exhibit A” to the initial Contract
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provides that “Seller hereby agrees to give Purchaser until 15 days after acceptance
date (such period to be exclusive of the acceptance date) as an Inspection Period[,]” and
“shall notify Seller of such in writing (with a copy to the Escrow Agent) on or before
11:59 PM on the last day of the Inspection Period[.]” (Emphasis added).
Here, Purchasers signed the Contract on July 1, 2020, and therefore, under the
plain terms of the contract, the first day of the Inspection Period was July 2, 2020.
The Contract initially afforded Purchasers a 15-day Inspection Period. However, on
July 16, 2020, the parties mutually agreed to change the Inspection Period from 15 to
17 days by signing the Second Revised Contract. Specifically, the Second Revised
Contract stated that “Seller hereby agrees to give Purchaser until 17 days after
acceptance date (such period to be exclusive of the acceptance date) as an ‘Inspection
Period’ to determine the suitability of the property for Purchaser’s intended use[.]”
(Emphasis added). Accordingly, the inspection period ran from July 2, 2020 until July
19, 2020. Purchasers gave Sellers notice of their intent to cancel the contract via an
e-mail delivered to Sellers and the escrow agent on July 19, 2020.
Further, we find no merit in Sellers’ argument that Purchasers were required
to provide an “official termination” through their lawyer on July 19. This was not a
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requirement set forth in the Contract. Instead, the terms of the Contract merely
required Purchasers to “notify Seller ... in writing” that they intended to terminate
the contract “on or before 11:59 PM on the last day of the Inspection Period.” They
did this in an e-mail on July 19.
(b) Breach of implied faith and fair dealing. Because we affirm the trial court’s
grant of summary judgment in favor of Purchasers on their breach of contract claim,
we find no merit in Sellers’ argument on appeal that the trial court erred by granting
summary judgment in favor of Purchasers on their claim for breach of implied good
faith and fair dealing. Such a claim cannot survive independent of a valid breach of
contract claim. See Ceaser v. Wells Fargo Bank, N. A., 322 Ga. App. 529, 533(2)(c)
(744 SE2d 369) (2013) (a party may not maintain a claim for the breach of the implied
covenant of good faith and fair dealing absent a valid breach of contract claim). As a
result of our conclusion in Division (1)(a), we conclude that the trial court did not err
in granting summary judgment to Purchasers on this claim.
(c) Attorney Fees. Sellers argue that the trial court erred in granting summary
judgment to Purchasers on their claim for attorney fees under OCGA § 13-6-11. We
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agree. An award of attorney fees under OCGA § 13-6-11 is a matter for a jury or a
court sitting as a trier of fact.
OCGA § 13-6-11 provides:
The expenses of litigation generally shall not be allowed as a part of the
damages; but where the plaintiff has specially pleaded and has made
prayer therefor and where the defendant has acted in bad faith, has been
stubbornly litigious, or has caused the plaintiff unnecessary trouble and
expense, the jury may allow them.
(Emphasis added). “As indicated by the plain language of the statute, the
determination of whether there has been bad faith in support of an award pursuant to
OCGA § 13-6-11 is normally an issue for a jury.” Metro Atlanta Task Force for the
Homeless v. Ichthus Cmty. Trust, 298 Ga. 221, 238(5) (780 SE2d 311) (2015). Accord
Rossee Oil Co. v. BellSouth Telecommunications, 212 Ga. App. 235, 236 (441 SE2d 464)
(1994) (“Questions of bad faith, stubborn litigiousness, and unnecessary expense,
under OCGA § 13-6-11, are generally questions for the factfinder.”) (punctuation
omitted). Consequently, “because both the liability for and amount of attorney fees
pursuant to OCGA § 13-6-11 are solely for the jury’s determination, a trial court is not
authorized to grant summary judgment in favor of a claimant therefor.” Covington
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Square Assoc. v. Ingles Markets, 287 Ga. 445, 446 (696 SE2d 649) (2010). “Although
the trial court may grant attorney fees or litigation expenses under OCGA § 13-6-11
where it sits as the trier of fact, it is not a trier of fact on a motion for summary
judgment.” Id. at 448. Accordingly, in this case, the trial court erred by granting
summary judgment on Purchasers’ claim for attorney fees pursuant to OCGA § 13-6-11. The trial court’s order on this issue is reversed.
2. Judgment on the pleadings. Sellers contend that the trial court erred in denying
their motion for judgment on the pleadings on Purchasers’ claims for implied
contract, unjust enrichment, conversion, and punitive damages.
When reviewing a motion on the pleadings, “the issue is whether the
undisputed facts appearing from the pleadings entitle the movant to judgment as a
matter of law. All well-pleaded material allegations by the nonmovant are taken as
true, and all denials by the movant are taken as false[.]” Hewell v. Walton County, 292
Ga. App. 510, 511(1) (664 SE2d 875) (2008). “On appeal, we review de novo the trial
court’s decision on a motion for judgment on the pleadings, and we construe the
complaint in a light most favorable to the appellant drawing all reasonable inferences
in his favor.” Id. at 510 (punctuation omitted).
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(a) Unjust enrichment. Sellers argue that the trial court erred in denying their
motion for judgment on the pleadings on Purchasers’ claim for unjust enrichment. We
agree.
In their complaint, Purchasers alleged that Sellers were unjustly enriched
because they failed to return the escrow funds. The trial court’s order denied
Purchasers’ motion for partial summary judgment on their claim for unjust
enrichment, but summarily denied Sellers’ motion for judgment on the pleadings on
the same claim. “The theory of unjust enrichment applies when there is no legal
contract and when there has been a benefit conferred which would result in an unjust
enrichment unless compensated.” Tidikis v. Network for Medical Communications &
Research, LLC, 274 Ga. App. 807, 811(2) (619 SE2d 481) (2005) (punctuation
omitted). Here, the unjust enrichment claim fails as a matter of law because
Purchasers are able to recover under their breach of contract claim. See Bonem v. Golf
Club of Ga., 264 Ga. App. 573, 578–79(3) (591 SE2d 462) (2003) (plaintiff entitled to
summary judgment on defendant’s counterclaim for unjust enrichment where dispute
governed by legal contract). Accordingly, we reverse the trial court’s denial of Sellers’
motion for judgment on the pleadings as to this cause of action.
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(b) Conversion. Purchasers’ complaint alleges a cause of action for conversion
because Sellers “are in unlawful possession of [$49,900] of [Purchasers’] earnest
money and have refused to return it” after Purchasers terminated the Contract.
Sellers contend that the trial court erred in denying their motion for judgment on the
pleadings as to Purchasers’ claim for conversion because Purchasers failed to show
that Sellers were in possession of the allegedly converted funds and failed to show that
the converted funds were the proper subject of a conversion claim. We disagree.
Conversion “consists of an unauthorized assumption and exercise of the right
of ownership over personal property belonging to another, in hostility to his rights; an
act of dominion over the personal property of another inconsistent with his rights; or
an unauthorized appropriation.” Trey Inman & Assoc., P.C. v. Bank of America, N.A.,
306 Ga. App. 451, 457(4) (702 SE2d 711) (2010). In order to establish a claim for
conversion, Purchasers must show: “(1) title to the property or the right of possession,
(2) actual possession in the other party, (3) demand for return of the property, and (4)
refusal by the other party to return the property.” Internal Medicine Alliance v. Budell,
290 Ga. App. 231, 239(5) (659 SE2d 668) (2008).
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Sellers argue that because the earnest money funds have remained in an escrow
account, Purchasers have failed to demonstrate that Sellers have “actual possession”
of the earnest money funds. However, the evidence shows that Sellers were in charge
of ordering the release of these escrow funds. “Because the evidence showed that
[Purchasers] had an immediate right to possess” the earnest money as reflected in the
Contract, Sellers exercised control over Purchasers’ property. Alexander Law Firm,
P.C. v. Richburg, 361 Ga. App. 376, 383(2) (864 SE2d 479) (2021) (evidence was
sufficient to sustain a jury’s verdict on conversion claim when law firm exercised
control over plaintiff’s property located in a storage unit and law firm refused to allow
plaintiff to retrieve the property).
Sellers are correct that “money, generally, is not subject to a civil action for
trover with an election for damages for its conversion.” Trey Inman & Assoc., P.C., 306
Ga. App. at 458(4) (punctuation omitted). However, an exception to this common law
rule exists when “specific amounts of money [have been] placed on deposit with a
bank[.]” Id. (punctuation omitted) ($76,122 in funds that law firm wrongfully
disbursed to a vendor via wire transfer was specific and identifiable and was, therefore,
a proper subject for the bank’s conversion claim). Accord Rubenstein v. Palatchi, 359
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Ga. App. 139, 142(1) (857 SE2d 81) (2021) (“A money-based conversion claim may
proceed only if the money comprises a specific, separate, identifiable fund set aside
from other money.”) (punctuation omitted). Here, because the earnest money was a
specific amount that was placed into an escrow account, it is such a specific and
identifiable fund that is the proper subject of a conversion claim.
(c) Implied contract and punitive damages. We decline to address Sellers’
argument that the lower court erred in denying their motion for judgment as a matter
of law on Purchasers’ claims for implied contract and punitive damages. Seller failed
to support these enumerations with citations to the record, relevant law, or argument
and they are thus deemed to be abandoned. See Caring Hands, Inc. v. Ga. Dept. of
Human Resources, 222 Ga. App. 608, 609(2) (475 SE2d 660) (1996) (“[F]ailure to
support the enumerated errors by citation of authority or argument constitutes
abandonment of such enumerated errors.”) (punctuation omitted).
3. Sellers argue that the trial court erred by refusing to dismiss Seller Ty
Robinson in his individual capacity as a party to this action. Sellers have failed to
provide any citations to the record showing that they raised this issue below or that the
trial court ruled upon it. Because Sellers have not provided a sufficient citation to the
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record to evaluate this enumeration, it is abandoned. Tolbert v. State, 378 Ga. App.
478, 483(5) (925 SE2d 736) (2026). See also Arnold v. State, 262 Ga. App. 61, 61(1)
(584 SE2d 662) (2003) (“As we have reiterated time and time again, this Court will
not cull the record in search of error on behalf of a party.”) (punctuation omitted).
Judgment affirmed in part and reversed in part. Rickman, P. J., and Mercier, J.,
concur.
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