Calhoun GA NG, LLC v. Century Bank

740 S.E.2d 210, 320 Ga. App. 472, 2013 Fulton County D. Rep. 798, 2013 WL 1092837, 2013 Ga. App. LEXIS 214
CourtCourt of Appeals of Georgia
DecidedMarch 18, 2013
DocketA12A2231
StatusPublished
Cited by12 cases

This text of 740 S.E.2d 210 (Calhoun GA NG, LLC v. Century Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Calhoun GA NG, LLC v. Century Bank, 740 S.E.2d 210, 320 Ga. App. 472, 2013 Fulton County D. Rep. 798, 2013 WL 1092837, 2013 Ga. App. LEXIS 214 (Ga. Ct. App. 2013).

Opinion

Ray, Judge.

Century Bank of Georgia (the “Bank”) and Calhoun, GA NG, LLC (“Calhoun”) are owners of adjoining tracts of land in a shopping center located on Highway 53 in Calhoun. The parties agree that they are subject to the terms, easements, and restrictive covenants memorialized in an agreement executed and recorded by their predecessors-in-title. The Bank filed a petition for declaratory judgment in the Superior Court of Gordon County, seeking a ruling that the agreement did not prevent the Bank from constructing a convenience store and a gas fueling facility on its property. The Bank later moved for summary judgment, which the trial court granted in its favor. Calhoun appeals from that order, and finding no error, we affirm.

Summary judgment is appropriate if the pleadings and evidence “show that there is no genuine issue as to any material fact and that [473]*473the moving party is entitled to a judgment as a matter of law.”1 “On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party.”2

So viewed, the record shows that the Bank owns a 5.42-acre tract of land (Tract 2) along Highway 53, which is bounded on the west by Calhoun’s parcel of land (Tract 1). In 1993, Calhoun’s predecessor-in-title sold a portion of its property to the Bank’s predecessor-in-title to open a grocery store. On August 25,1993, in conjunction with this sale, the predecessors-in-title to the Bank and to Calhoun executed a document titled Reciprocal Easement and Restrictive Covenant Agreement (the “Agreement”). The grocery store subsequently went out of business, and the last business to operate on Tract 2 was a car dealership that closed in 2009. The Bank acquired Tract 2 by foreclosure and now seeks to construct a convenience store and gas fueling facility on the property.

The parties do not dispute that the Agreement runs with the land and is binding upon the parties that created it and their successors-in-title. The Agreement contains six sections, including Article I which describes the reciprocal easements in favor of both Tract 1 and Tract 2. The specific easements outlined in Article I of the Agreement that pertain to the Bank’s proposed development are: (1) easements across the passage over areas on Tract 2, now or hereafter constructed, for sidewalks, entrances, drives, lanes, service drives, and parking; (2) easements for utilities and drainage; and (3) easements for the maintenance of drives, lanes, or parking, now or hereafter constructed. The specific restrictive covenants, outlined in Article II of the Agreement, that pertain to the Bank’s proposed development are: (1) “no fences, walls, or barriers . . . shall be permitted which would impair the visibility of the Tracts from the adjoining roads”; (2) a requirement of five parking spaces per every one thousand square feet of building area; (3) a requirement that Tract 2 preserve the flow of traffic and parking to Tract 1; and (4) that no walls will be built between the tracts.

Article V of the Agreement, titled “No Dedication,” states that “subject to the limitations contained in Articles I and II hereof, the owners from time to time of the Tracts shall have the right to expand, alter, modify or demolish all or part of the buildings now or hereafter [474]*474constructed on said Tracts, or develop said Tracts in any manner they see fit.”

In its summary judgment order, the trial court ruled:

[T]he “No Dedication” clause in Article V of the Agreement is clear and unambiguous and allows [the] [o]wners of Tract 1 and Tract 2 to construct buildings or other structures on the respective Tract in any manner they see fit, as long as the development complies with the easements and restrictive covenants set out in Articles I and II.

1. Calhoun argues that the trial court erred in finding that the Agreement contained a reservation of rights allowing the owner of Tract 2 to alter easements on its property. Thus, Calhoun contends, the trial court erred in awarding summary judgment in favor of the Bank because the Bank’s proposed development alters or eliminates fixed easements across Tract 2 that benefit Calhoun’s property, including “a significant portion of the parking area directly in front of the buildings and other improvements on [Calhoun’s] property[,]” in violation of Georgia law. We disagree.

The Supreme Court of Georgia has held that, consistent with the majority rule in this country, “an easement with a fixed location cannot be substantially changed or relocated without the express or implied consent of the owners of both the servient estate and the dominant estate.”3 However, the exception to this general rule “provides that the owner of the servient estate has the right to relocate an easement if the instrument creating the easement so provides.”4 This is so because “if the language of an express grant or reservation of an easement authorizes it, the location of an easement may be changed in accordance with the agreement.”5

Accordingly, the issue before us is whether the trial court correctly concluded that the terms of the Agreement authorized the relocation of easements benefitting Tract 1. In construing the language of an express easement, we apply the rules of contract construction.6 The cardinal rule of contract construction is to ascertain the parties’ intent and “[w]here the contract terms are clear and unambiguous, the court will look to that alone to find the true intent [475]*475of the parties.”7 Further, “[t]o determine the intent of the parties, all the contract terms must be considered together in arriving at the construction of any part, and a construction upholding the contract in whole and every part is preferred.”8 Absent an ambiguity that cannot be resolved by the rules of construction, the interpretation of contractual terms is a question of law for the court.9

In SunTrust Bank v. Fletcher,10 Fletcher was successor-in-title to a shopping mall developer. The same developer conveyed to Sun-Trust’s predecessor-in-title a parcel of land along with the following easement: a “non-exclusive easement license, right and privilege of passage for pedestrians and vehicular ingress and egress over and across all portions of the common areas of the adjacent shopping center.”11 In the same deed, the developer retained certain rights with the following language: “The adjacent property owner shall have the right to relocate buildings, walkways and parking areas in any manner whatsoever and the easement.. . shall then apply to the area so established.”12 Fletcher put in parking spaces that blocked Sun-Trust’s drive-through lane, and SunTrust sued. On appeal, this Court held that the language in the deed reserving the right to relocate parking areas granted Fletcher the right to rearrange buildings, parking and walkways, thus forcing SunTrust to rearrange its point of egress onto its property, as long as the easement was maintained.13

In Wilcox Holdings, Ltd. v. Hull,14 two adjoining properties were subject to a declaration that provided for a

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Bluebook (online)
740 S.E.2d 210, 320 Ga. App. 472, 2013 Fulton County D. Rep. 798, 2013 WL 1092837, 2013 Ga. App. LEXIS 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calhoun-ga-ng-llc-v-century-bank-gactapp-2013.