Effingham County v. Roach

764 S.E.2d 600, 329 Ga. App. 805, 2014 Ga. App. LEXIS 705
Court of Appeals of Georgia·Decided October 30, 2014·No. A14A1236·Published·Cited by 5 cases

Opinion

Branch, Judge.

Effingham County appeals the denial of its second motion for summary judgment in this breach of contract action brought by Benjamin R. Roach, Chapter 7 Bankruptcy Trustee for Darrell Morgan. The County applied to this Court for interlocutory appeal, and this Court granted the application, holding that because the trial court rendered a conclusive determination on an issue of sovereign immunity, the trial court’s order was directly appealable as a collateral order.1 For the following reasons, we affirm the denial of summary judgment.

To prevail on a motion for summary judgment,

the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand [806] judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006) (citations omitted). We therefore view the evidence in the light most favorable to Roach/Morgan.

Background

So viewed, the record shows that in early 2005, Morgan became interested in purchasing and developing a 75-acre sub-tract of an over 500-acre parcel of property in Effingham County known as Grandview (a/k/a Mill Creek). Morgan contacted the County to determine whether it would provide water and sewer utilities (“w/s”) to the property and whether it would be open to re-zoning the property for residential development. David Rutherford, the County Administrator, and Hubert Sapp, the County Board Chairman, told Morgan that the County would be providing w/s to the property, and County officials supported the re-zoning. Morgan approached the Bank of Newington to obtain financing to purchase the property, and the bank agreed to finance the purchase if Morgan could provide it with, among other things, a letter of intent from the County committing to supply w/s.

On March 1, 2005, the County Board of Commissioners provided a letter of intent regarding providing w/s to the property in which the County specified that a final water and sewer agreement would be necessary to work out details; in the letter, the County stated that “[a]t this time, it is projected that water and sewer service can be available to the site by July 2006.” Morgan then entered into a contract to purchase the property,2 received financing from the bank based on the letter of intent, and closed on the property on July 18, 2005. The County approved the re-zoning in October 2005. Also in October, at the County’s request, Morgan provided a copy, and later [807] delivered the original, of a $500,000 letter of credit made in favor of the County and the Georgia Environmental Finance Authority (GEFA), the agency from which the County hoped to obtain loans to finance its projects. The County’s consulting engineer, James Vaughn, testified that it should have taken eight months or so from the time that the proj ect was bid to complete the County’s portion of the infrastructure, which consisted of a six-mile extension of County infrastructure, and that the July 2006 projection was reasonable at that time.

2005 Development Agreement

At the November 1, 2005 County Board of Commissioners meeting, the board authorized the County to enter into a w/s development agreement with Morgan. The parties thereafter executed a “Development Agreement” dated November 1,2005. The agreement required Morgan to construct the on-site w/s infrastructure and the County to construct the off-site w/s infrastructure; upon completion, Morgan was required to dedicate the on-site lines to the County. The Agreement was made “[s]ubject to the condition that funds be made available to the County by [GEFA] for the construction of the County water, reuse water and wastewater treatment system up to and including] the connection point,” and it required Morgan to provide a $2.5 million letter of credit in favor of the County and GEFA.3 The parties did not include a deadline for completion of the construction of the w/s services in this contract.

2006 Agreement

Six months later, on May 10, 2006, the County Board of Commissioners again met and discussed the provision of w/s to Grand-view. The board voted to revoke “any prior agreements with Grand-view” and to “approve the [w/s] agreement with Grandview.” On that same day, the County and Morgan executed the “Water, Sewer, and Re-Use Water Service Agreement” (“2006 Agreement”). Like the earlier agreement, this agreement required Morgan to construct on-site w/s infrastructure (which he would later dedicate to the County) and the County to construct off-site w/s infrastructure into [808] which Morgan would tie the on-site lines. With regard to the County’s primary obligation, the agreement provides:

The County has constructed or will construct a water system having sufficient capacity to provide potable water to the Project, a sewage system having sufficient capacity to treat effluent from the Project, and a re-use water distribution system having sufficient capacity to deliver irrigation water to the Project, as shown on the [attached plans].

The agreement then provides that the County’s obligation is subject to GEFA providing funds, but the deadline clause for the County’s primary obligation contains two blanks:

Subject to the condition that funds be made available to the County by [GEFA] or from other sources for the construction of [w/s to Grandview], the County shall ensure the availability of [w/s to Grandview] not later than_, 2006, provided that the County shall not be liable to the Developer for consequential damages or economic losses in the event that availability of any or all of said services is delayed. If [w/s] services are not available at the connection point not later than_, the County agrees to and does hereby assign to Developer any delay damages ... due to the County from its contractors responsible for the timely construction of [w/s] up to and including the connection points.

The parties never filled in these blanks.

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Effingham County v. Roach, 764 S.E.2d 600, 329 Ga. App. 805, 2014 Ga. App. LEXIS 705 (Ga. Ct. App. 2014).

764 S.E.2d 600 (Effingham County v. Roach) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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