Barrett v. Britt
| Decision Date | 30 November 2012 |
| Docket Number | No. A12A1249.,A12A1249. |
| Citation | 319 Ga.App. 118,736 S.E.2d 148 |
| Parties | BARRETT et al. v. BRITT et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Melanie Marie Norvell, Atlanta, for Appellant.
Robert Jackson Wilson, Lawrenceville, for Appellee.
Jimmy and Marilyn Barrett appeal the trial court's order granting partial summary judgment to Melanie Willis Britt and William Stacey Britt on the Barretts' claims for breach of contract, waste and conversion in connection with their purchase of real property formerly owned by the Britts. The Barretts' complaint asserted that the Britts improperly removed certain property, equipmentand/or fixtures from the property at issue. Because we find that material issues of fact remain on the Barretts' claims, we reverse the trial court's grant of partial summary judgment to the Britts.
“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.” (Citation and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623(1)(a), 697 S.E.2d 779 (2010). So viewed, the record reflects that on July 25, 2006, the Britts, pursuant to a Purchase and Sale Agreement (hereinafter the “Britt Agreement”), sold certain Jackson County real property, with improvements thereon, to their co-defendant Roger Allen Hughes (“Hughes”). The Britt Agreement contained a stipulation providing that “[a]ll Equipment having to do with the cattle operation still belongs to the seller” but did not identify or define such equipment. One year later, on July 26, 2006, the Britts and Hughes executed “Amendment # 1” to the Britt Agreement, which provided that
[f]or a period of up to three (3) years, [the Britts have] the right to use the property for the purpose of managing their existing Cattle business. During the time the [Britts] are using the property they agree to maintain same to the condition it is presently in.
Two months later, on August 25, 2006, the parties entered into a formal “Lease Agreement” for the Property, “pursuant to the terms and conditions of” the Britt Agreement as amended. The Lease Agreement provided:
The terms of the [Britt Agreement], as amended, allow the [Britts] to retain possession of the property for a period of up to three (3) years following the date of closing, subject to the provisions of special stipulations set forth in the [Britt Agreement, as amended]. In order to confirm their agreements, the parties hereto have agreed upon and hereby enter into this lease....
The property covered by the Lease Agreement is identified by the legal description of the Property. And under the terms of the lease, the Britts undertook “to maintain the property in a good condition, substantially the same as at present through the term of this lease,” including any “necessary maintenance on the house or other improvements, and the systems and appliances related thereto.”
During the pendency of the lease, however, Hughes sold the Property to the Barretts, pursuant to a Purchase and Sales Agreement dated September 19, 2007 (the “Barrett Agreement”). Under that agreement, Hughes warranted that at the time the Barretts took possession, the Property “will be in substantially the same condition” as on the day the parties signed the agreement. The Barrett Agreement provided for the sale of the Property “with such improvements as are located thereon ... together with all fixtures, landscaping, improvements, and appurtenances,” but made no specific reference to Hughes's earlier agreement entitling the Britts to retain ownership of any equipment “having to do with the cattle operation.” Nevertheless, the sale to the Barretts was specifically made subject to the Lease Agreement between Hughes and the Britts. The Barretts acknowledge that they received a copy of the Lease Agreement prior to closing, and that agreement references the Britt Agreement and the stipulations contained therein, without addressing the content of the stipulations. No other limitations on title were mentioned in the Barrett Agreement. The sale of the Property from Hughes to the Barretts closed on March 31, 2008, and the Warranty Deed Hughes signed that day granted the Barretts title in fee simple.
At the time of closing, the Britts still had 17 months remaining under the lease. When the Barretts took possession of the property on or about July 31, 2009, at the end of the lease term, they discovered that the Britts had removed “the custom built galvanized steel gates; the custom built steel partitions in the barn for the stables; a grain bin attached to the barn; water meters, devices and water lines; and a cupola and weather vane.” Marilyn Barrett averred that, based upon her experience as a purchaser and owner of “numerous residential and commercial properties,” the property removed by the Britts was not cattle equipment or equipment related to the operation of a cattle business. The Britts concede that they removed “102 pieces of river run panel/gates, river run chute, 1 feed bin, 3 nelson waters, 3 blue automatic waters, 6 fans, 1 barn cupola, 12 feed bunks and 1 fuel tank and pump,” but William Britt averred that this property was associated with their cattle operation.
The Barretts contend that the removal of these items drastically altered the Property from its condition at the time they inspected and purchased it in 2008. And in August 2009, the Barretts sent the Britts correspondence detailing the items that they contended needed to be repaired, replaced or removed pursuant to the Lease Agreement and notifying them of damage caused by the removal of the cupola and weather vane. The Britts replied that they were entitled to remove the property pursuant to Stipulation 7 of the Britt Agreement, and supplied the Barretts a copy of that agreement in September 2009.
This lawsuit ensued, and the Britts filed a motion for summary judgment on the Barretts' claims. The trial court granted the Britts summary judgment as to the Barretts' claims regarding the removed property, finding that the Britts had the right to remove such property under the terms of the Britt Agreement and the Lease Agreement. The trial court denied summary judgment, however, on the Barretts' claims that the Britts breached their duty to maintain the property as to certain items; that the Britts dumped harmful substances on the property in violation of the lease, resulting in damages; that the Britts' removal of property was done negligently, resulting in damage to the property; and that the Britts are liable for punitive damages and attorney fees.
On appeal the Barretts argue that the trial court erred in finding as a matter of law 1) that the property removed from the property was “equipment having to do with the cattle operation;” and 2) that the Britts were entitled to remove any fixtures from the Property.
The Barretts correctly argue that fixtures ordinarily pass with the conveyance of underlying real estate, but the parties to a conveyance may alter that general rule by contract:
Where an item is attached to the land it becomes a part thereof and would ordinarily pass in a conveyance of the land. Whether certain articles annexed to the realty shall pass by conveyance or not, as between grantor and grantee, may be controlled by the agreement of the parties. The parties may, by an extrinsic and collateral agreement to the instrument of conveyance, treat such articles as personalty or realty.
Aside from the general rule of physical attachment and removability, the intent of the parties is to be considered when deciding issues of the law of fixtures. Where there is a contract by the express or implied terms of which such fixtures are to be considered as personalty they will be so treated.
(Citations and punctuation omitted.) Hargrove v. Jenkins, 192 Ga.App. 83, 84, 383 S.E.2d 636 (1989). See also Burpee v. Athens Production Credit Assn., 65 Ga.App. 102, 15 S.E.2d 526 (1941).
Stipulation 7 of the Britt Agreement was an attempt to identify items as to which the Britts retained ownership even after the sale of the real property to Hughes. And the Barretts are bound by the language of Stipulation 7. The Barrett Agreement was expressly made subject to the terms of the Lease Agreement, and that agreement, which the Barretts acknowledged receiving prior to closing, incorporated and affirmed the special stipulations found in the Britt Agreement. It is clear, therefore, that the Barretts purchased the Property subject to the Britts' rights under the Lease Agreement. Turner Communications Corp. v. Hickcox, 161 Ga.App. 79, 82(1), 289 S.E.2d 260 (1982) () (citation and punctuation omitted). Thus, this appeal turns on an interpretation of the language in Stipulation 7 providing that the “ equipment having to do with the cattle...
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