Cedeno v. Lockwood, Inc.

• Decision Date: 05 April 1983
• Docket Number: No. 39336,39336
• Parties: CEDENO, et al. v. LOCKWOOD, INC.
• Court: Georgia Supreme Court

Page 265

301 S.E.2d 265

250 Ga. 799

CEDENO, et al. v. LOCKWOOD, INC.

No. 39336.

Supreme Court of Georgia.

April 5, 1983.

Henry R. Bauer, Jr., Atlanta, for Blanca Cedeno, et al.

Meade Burns, Margorie M. Rogers, Atlanta, for Lockwood, Inc.

HILL, Chief Justice.

In 1975 the Atlanta City Council developed a plan to create a municipal park in the area known as Underground Atlanta. A fence was to be erected around the area and a nominal admission fee charged. The fee was to be used to maintain the park and related facilities. Certain municipal streets, sidewalks, alleys, and rights of way in Underground (hereinafter collectively identified as the "streets") were to be abandoned as a part of the municipal street system and the property dedicated to the public for a park. To prevent ownership of the streets from reverting to the abutting property owners when the streets were abandoned, each owner was asked to execute a quitclaim deed conveying any interest in the streets. Those deeds were to be held in escrow until quitclaim deeds were received from all property owners. Under the ordinance adopted March 17, 1975, authorizing the Council to take the necessary actions to effectuate the plan, the City Council was to adopt a resolution stating that all conditions necessary to abandonment (execution and receipt of all quitclaim deeds) had occurred, and abandoning the streets. Deeds were not received from some owners.

In 1977 the City began a second campaign to acquire the necessary deeds. It also erected the fence around the area and collected the 25-cent admission fee even though the park had not been created. Again some owners did not execute the deeds, and eventually the City discontinued its efforts to create the park.

In September, 1979, Blanca Cedeno injured herself when she fell on a stairway adjacent to Lockwood's building in Underground. She and her husband filed this joint action against Lockwood seeking, respectively, lost earnings and damages for her injuries and for loss of consortium. They contend Mrs. Cedeno's fall was caused by Lockwood's negligence in not properly maintaining the stairway. Lockwood moved for summary judgment based on two defenses: (1) the stairway had been conveyed to the City, and Lockwood therefore is not responsible for its repair and maintenance; and (2) even if Lockwood owns and is responsible for the stairway, the Recreational Property Act (RPA), OCGA § 51-3-20 et seq. (Code Ann. § 105-403 et seq.), relieves it of liability. Plaintiffs moved for summary judgment that these defenses were invalid.

The trial court granted plaintiffs' motion for summary judgment finding the transfer of title to the City had not been completed. It also found that, because the Cedenos had paid an admission fee which indirectly benefitted Lockwood, the RPA did not protect Lockwood.

The Court of Appeals reversed, finding that Lockwood's conveyance to the City was effective. It went further and found that, because Lockwood did not receive part of the admission fee, the RPA shields Lockwood from liability. Lockwood, Inc. v. Cedeno, 164 Ga.App. 34, 295 S.E.2d 753 (1982). We granted the Cedenos' petition for certiorari to consider the applicability of the RPA to the property in question. First, however, we must determine who owns the property included in the deeds to the City.

1. The stairway on which plaintiff fell is in an alley next to the Lockwood building. The parties agree that the area in which the stairway is located is included in the deed conveying the property to Lockwood. The stairway was built by Underground Atlanta, Inc., a former tenant of Lockwood. The second quitclaim executed by Lockwood included all rights Lockwood had in the alley extensions off of Kenney's Alley and all rights of access "from ground level to viaduct level." The stairway is located in the alley extension and is used as a means of access from the ground level to the viaduct level. The Lockwood deed included the stairway.

Lockwood contends the party holding the deed, the City's attorney, was an agent for the City and by giving possession of the deed to the grantee, through its agent, the deed was effectively delivered. Morgan v. Wolpert, 164 Ga. 462(2), 139 S.E. 15 (1927); Duncan v. Pope, 47 Ga. 445(4) (1872).

Here the parties did not intend the deed to be effectively delivered upon receipt. They intended that the conveyance be for the purpose of creating a municipal park and that it not be effective until all quitclaim deeds were executed. The letter requesting Lockwood to execute the deed stated that the executed deeds would be "held in escrow" until all deeds were received. The deed in question recited as consideration "the establishment and creation of Underground Atlanta Historic Park" and specified that it was given and accepted pursuant to the ordinance adopted March 17, 1975. The intentions of the parties stated in the deed are dispositive of the effect of transfer of physical possession of a deed. The deed was delivered to the City's attorney to hold until the conditions could be met, but those conditions were not met. Further evidence that the parties did not intend the conveyance to be complete is the fact that Lockwood...