concurring specially.

I concur in the majority decision to affirm the trial court’s grant of summary judgment. I write only to point out to the parties that our decision does not rest upon the failure to make tender, as we conclude tender was riot necessary.

We have examined the record and determine that, as to fraud, the trial court correctly found there is no genuine issue as to any material fact, and appellees are entitled to a judgment as a matter of *430law. Code Ann. § 81A-156 (c).

Judgment affirmed without opinion pursuant to Rule 59.