Excellence v. Martin Bros. Investments

Decision Date03 October 2011
Docket NumberA10A2144.,A10A2143,Nos. A10A1745,s. A10A1745
Citation710 S.E.2d 169,309 Ga.App. 279
PartiesEXECUTIVE EXCELLENCE, LLC et al.v.MARTIN BROTHERS INVESTMENTS, LLC et al.Southern Tradition Investments, LLC et al.v.Executive Excellence, LLC et al.Executive Excellence, LLC et al.v.Southern Tradition Investments, LLC et al.
CourtGeorgia Court of Appeals

OPINION TEXT STARTS HERE

Berman, Fink & Van Horn, Charles Hale Van Horn, Anne Elizabeth Andrews, Matthew J. Simmons, Atlanta, for appellants.Stewart, Melvin & Frost, Nancy Lee Richardson, Gainesville, Frank Armstrong III, for appellees.McFADDEN, Judge.

These consolidated appeals arise out of the rescission of two written contracts for the purchase and sale of real property. The sellers and property owners were Executive Excellence, LLC, its principal owner Richard R. Fritts, and Sterling Trust Company (collectively “sellers”). The buyers under assignments were Southern Tradition Investments, LLC and Martin Brothers Investments, LLC (collectively “buyers”). In Case No. A10A1745, the sellers appeal the trial court's order granting summary judgment against them as to their claims for slander of title. In Case Nos. A10A2143 and A10A2144, the buyers and sellers, respectively, appeal the trial court's orders awarding attorney fees against each party. We affirm the trial court's summary judgment order because the sellers failed to assert actionable slander of title claims. As to the attorney fees, we affirm in part and reverse in part.

We review de novo a trial court's grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party. To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant's favor, warrant judgment as a matter of law. A defendant who will not bear the burden of proof at trial need only show an absence of evidence to support an essential element of the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations and punctuation omitted.) Latson v. Boaz, 278 Ga. 113, 113–114, 598 S.E.2d 485 (2004). See also OCGA § 9–11–56(c), (e).

So construed, the record evidence shows that Executive, operated by Fritts, was the owner of a 15–acre tract of undeveloped land in Hall County. A separate four-acre tract was owned by Sterling Trust as Custodian for the Benefit of Richard R. Fritts. On or about December 26, 2006, Fritts executed two contracts to sell the respective tracts to a third party, Sund Enterprises. Although Sterling Trust was listed as the seller on the contract for the four-acre tract, the contract was not executed by any authorized representative of Sterling Trust.

Sund Enterprises later assigned its rights under the contract to purchase the 15–acre tract to Southern Tradition and assigned its rights under the contract to purchase the four-acre tract to Martin Brothers. Both contracts contained a zoning contingency that provided as follows:

This contract is conditioned on the ability of the Buyer to obtain the rezoning of said property to zoning classification pursuant to the City of Oakwood (Zoned C–2) or Hall County (Zoned HB) Zoning Resolutions so as to permit the construction of Commercial/Highway Business on the property.... Buyer agrees to apply for said rezoning within Sixty (60) days of the date of this agreement and Seller agrees to cooperate with the Buyer in obtaining such rezoning.... It is expressly understood that in the event a final determination is not made on said application by the City of Oakwood or Hall County, on or before April 1, 2007, either party may rescind this contract by notifying the other party as provided for herein[.]

(Emphasis supplied.) The contract provided that Southern Tradition and Martin Brothers would have until February 26, 2007 to file applications for rezoning in Hall County; they filed the applications on February 23. Fritts executed an owner authorization in support of Southern Tradition's application. Fritts, however, refused to execute an owner authorization in support of Martin Brothers's rezoning application, contending that Sterling Trust had not agreed to the contract and that he lacked authority to sign the documents on behalf of Sterling Trust. Martin Brothers did not send the contract or zoning documents to Sterling Trust for approval and execution.

The Hall County Planning Commission established a schedule for the procedural handling of the applications. According to the schedule, Southern Tradition's rezoning application would not be heard until the Planning Commission's meeting on April 2, 2007 and the Board of Commissioners meeting on April 26, 2007, which was after the rezoning deadline designated in the contracts. On March 28, 2007, counsel for Southern Tradition and Martin Brothers sent letters to Fritts, stating that they were unilaterally removing the zoning contingency from the contracts. Fritts objected, asserting that the zoning contingency could not be unilaterally removed.

Southern Tradition and Martin Brothers failed to obtain a final determination on their rezoning applications by the April 1, 2007 deadline. On April 25, 2007, counsel for Executive sent a letter to counsel for Southern Tradition rescinding the contract based upon the failure of the zoning contingency. Subsequently, on May 16, 2007, counsel for Sterling Trust sent a letter to counsel for Martin Brothers, advising that the purported contract was null and void since it was not approved or accepted by Sterling Trust and, to the extent that a contract existed, it was rescinded due to the failure of the zoning contingency.

Southern Tradition and Martin Brothers continued to pursue a rezoning of the properties and enforcement of the contracts. At the Hall County Board of Commissioners meeting held on April 26, 2007, the agent for Southern Tradition and Martin Brothers allegedly stated to third parties that they intended to pursue enforcement of the contracts for the properties “in order to teach [Fritts] a lesson and that [they] had enough money to do so.” At a subsequent Board of Commissioners meeting on May 24, 2007, the Hall County attorney, who also was a partner at the law firm representing Southern Tradition and Martin Brothers, openly stated that there was active litigation involving the properties. On October 8, 2007, the agent for Southern Tradition and Martin Brothers allegedly stated to third parties that they “had enough money to keep the [properties] tied-up in litigation for the next 5 to 10 years.”

Southern Tradition filed suit against Executive, asserting claims for contract reformation, specific performance, and attorney fees. Southern Tradition alleged that the April 1 rezoning deadline was a scrivener's error and that it was entitled to have the contract reformed to reflect the parties' intent to provide a later deadline of June 1, 2007. Similarly, Martin Brothers filed suit against Fritts and Sterling Trust, asserting claims for contract reformation, declaratory judgment, mandatory injunction, specific performance, fraud, and attorney fees. Martin Brothers likewise alleged that the April 1 rezoning deadline was a scrivener's error that did not embody the parties' intent to provide for a June 1, 2007 deadline. In addition, Martin Brothers alleged that Fritts had fraudulently misrepresented that he had authority to execute the contract to sell the property on behalf of Sterling Trust. In conjunction with filing the lawsuits, Southern Tradition and Martin Brothers filed notices of lis pendens identifying the lawsuits, the relief sought, and the properties subject to the lawsuits.

Executive, Fritts, and Sterling Trust filed answers denying the material allegations in the complaints. They also filed counterclaims seeking damages and attorney fees for slander of title, pertinently alleging that Southern Tradition and Martin Brothers had maliciously impugned their title to the properties by filing the notices of lis pendens and by making the statements to third parties at the Board of Commissioners meetings.

Executive, Fritts, and Sterling Trust filed a motion for summary judgment as to the claims of the Southern Tradition and Martin Brothers lawsuit. Southern Tradition and Martin Brothers later filed a voluntary dismissal of their claims without prejudice. Southern Tradition and Martin Brothers thereafter filed a motion for summary judgment as to the counterclaim, which the trial court granted.

Following the disposition of the substantive claims of the lawsuit, the parties filed motions for attorney fees under OCGA § 9–15–14. The trial court also granted each of these motions, finding that each party had presented claims that lacked substantial justification and failed to set forth a justiciable issue of law or fact. The instant appeals ensued.

Case No. A10A1745

1. Executive, Fritts, and Sterling Trust contend that the trial court erred in granting summary judgment in favor of Southern Tradition and Martin Brothers as to their counterclaims for slander of title. The contention is without merit.

Under OCGA § 51–9–11, [t]he owner of any estate in lands may bring an action for libelous or slanderous words which falsely and maliciously impugn his title if any damage accrues to him therefrom.” To establish a claim for the slander of title tort in accordance with the statute, the plaintiff must prove: (1) publication of slanderous or libelous statements; (2) that the statements were false and malicious; (3) that the plaintiff sustained special damages thereby; and (4) that the plaintiff possessed an estate in the property slandered or libeled. See Premier Cabinets v. Bulat, 261 Ga.App. 578, 583(6), 583 S.E.2d 235 (2003). In this case, the slander of title claim...

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