GeorgiaCarry.org Inc. v. Atlanta Botanical Garden, Inc.

• Decision Date: 31 January 2022
• Docket Number: A21A1479
• Citation: 362 Ga.App. 413,868 S.E.2d 802
• Parties: GEORGIACARRY.ORG INC., et al. v. The ATLANTA BOTANICAL GARDEN, INC.
• Court: Georgia Court of Appeals

362 Ga.App. 413

868 S.E.2d 802

GEORGIACARRY.ORG INC., et al.

v.The ATLANTA BOTANICAL GARDEN, INC.

A21A1479

Court of Appeals of Georgia.

January 31, 2022

John R. Monroe, for Appellant.

James Charles Grant, Omari J. Crawford, Atlanta, David Baird Carpenter, for Appellee.

Gobeil, Judge.

GeorgiaCarry.org, Inc. and Phillip Evans (collectively the "Plaintiffs") appeal from the trial court's grant of summary judgment in favor of the Atlanta Botanical Garden, Inc. (the "Garden"). The Plaintiffs contend that the trial court erred in granting summary judgment to the Garden and finding it holds an estate for years, and therefore, the property is private property for purposes of OCGA § 16-11-127, which pertains to "[c]arrying a weapon in unauthorized locations."¹ For the reasons that follow, we affirm.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). Thus, to prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact so that the party is entitled to judgment as a matter of law. A defendant may do this by either presenting evidence negating an essential element of the plaintiff's claims or establishing from the record an absence of evidence to support such claims.... Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.

Cowart v. Widener , 287 Ga. 622, 623-624 (1) (a), 697 S.E.2d 779 (2010) (citations and punctuation omitted).

The underlying facts of this case are largely undisputed. As this Court recounted in an earlier appeal:

The Garden is a private, non-profit corporation that operates a botanical garden complex on property secured through a 50-year lease with the City of Atlanta. Evans holds a Georgia weapons carry license and is a member of GeorgiaCarry, a gun-rights organization. In October 2014, Evans twice visited the Garden, openly carrying a handgun in a holster on his waistband. Although no Garden employee objected to Evans's weapon on his first visit, he was stopped by a Garden employee during his second visit and informed that weapons were prohibited on the Garden premises, except by police officers. A security officer eventually detained Evans, and he was escorted from the Garden by an officer with the Atlanta Police Department.

GeorgiaCarry.Org v. Atlanta Botanical Garden , 345 Ga. App. 160, 161, 812 S.E.2d 527 (2018) ( GeorgiaCarry.Org II ), vacated by GeorgiaCarry.Org v. Atlanta Botanical Garden , 353 Ga. App. 402, 837 S.E.2d 717 (2020). The Plaintiffs subsequently filed a petition, seeking declaratory and injunctive relief on the basis that OCGA § 16-11-127 (c) authorizes Evans — and similarly situated individuals — to carry a weapon at the Garden. Id. The trial court dismissed the petition after concluding that the issues were not appropriate for the relief sought, a ruling that the Supreme Court reversed in part on appeal. See GeorgiaCarry.Org v. Atlanta Botanical Garden , 299 Ga. 26, 785 S.E.2d 874 (2016) ( GeorgiaCarry.Org I ).

"On remand, the trial court held that the Garden's property was considered private under well-established Georgia precedent, allowing the Garden to exclude weapons and, consequently, granted summary judgment to the Garden." GeorgiaCarry.Org II , 345 Ga. App. at 161, 812 S.E.2d 527. This Court affirmed the trial court's grant of summary judgment in favor of the Garden, GeorgiaCarry.Org, II , 345 Ga. App. at 162-164, 812 S.E.2d 527. On certiorari review, our Supreme Court reversed and remanded the case to the trial court. GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc. , 306 Ga. 829, 842 (4), 834 S.E.2d 27 (2019) ( GeorgiaCarry.Org III ). The Supreme Court specifically held that "in order to determine the proper application of OCGA § 16-11-127 (c) to this or any lease of land by a private entity from a governmental entity, the court must determine whether the specific lease in question creates an estate for years or a usufruct." Id. The specific lease between the City and the Garden was not in the record. Id. at 842 (4), 834 S.E.2d 27. We subsequently vacated our opinion in GeorgiaCarry.Org II and adopted the opinion of the Supreme Court as our own. GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc. , 353 Ga. App. 402, 402, 837 S.E.2d 717 (2020).

On remand, the parties submitted the 50-year lease executed between the Garden and the City in March 1980, and the current version of the lease executed in August 2017. Thereafter, the Plaintiffs filed a motion for summary judgment, arguing that the Garden obtained only a usufruct under the lease. The Garden filed a cross-motion for summary judgment, asserting that the lease gave the Garden an estate for years. The trial court granted summary judgment in favor of the Garden, finding that the Garden holds an estate for years under its lease with the City, and therefore, the property is private for purposes of OCGA § 16-11-27 (c) and the Garden may exclude or eject persons in possession of a gun under that subsection. This appeal followed.

The Plaintiffs contend that the trial court erred in granting summary judgment to the Garden and finding it holds an estate for years, and counter that the lease between the Garden and the City conveys only a usufruct. We disagree and conclude that the lease created an estate for years as explained below.

1. A usufruct occurs where one accepts the grant of "the right simply to possess and enjoy the use of such real estate either for a fixed time or at the will of the grantor." OCGA § 44-7-1 (a). An estate for years occurs where one accepts "the right to use the property in as absolute a manner as may be done with a greater estate, provided that the property or the person who is entitled to the remainder or reversion interest is not injured by such use." OCGA § 44-6-103. "[W]hether an estate in the land passes to the tenant, or he obtains merely the usufruct depends upon the intention of the parties; and this is true without regard to the length of the term." Diversified Golf, LLC v. Hart County Bd. of Tax Assessors , 267 Ga. App. 8, 10, 598 S.E.2d 791 (2004) (citation and punctuation omitted). However, Georgia courts have held that a lease "in excess of five years is presumed to be an estate for years." Jekyll Dev. Assocs. L.P. v. Glynn County Bd. of Tax Assessors , 240 Ga. App. 273, 274 (1), 523 S.E.2d 370 (1999) ("All renting or leasing of real estate for a period of time in excess of five years is presumed to be an estate for years.") (citations omitted); Eastern Air Lines, Inc. v. Joint City-County Bd. of Tax Assessors , 253 Ga. 18, 19 (1), 315 S.E.2d 890 (1984) (with a term of a lease for a period greater than five years, "a rebuttable presumption arises that the parties intended to create an estate for years rather than a usufruct").

Section 2.4 of the Garden's lease states that

The Lease Term shall commence on the date of this Agreement and shall expire at midnight, local time in the City, on the date which is fifty (50) years after the date of this Agreement subject to such being sooner terminated as provided in this Agreement. (Emphasis added).

Thus, the lease period of 50 years presents a rebuttable presumption that the parties intended to create an estate for years rather than a usufruct. To overcome this presumption, the Plaintiffs would have to show through the terms of the lease that the parties intended to create only a usufruct. See Jekyll Dev. Assocs. L.P. , 240 Ga. App. at 274-275 (2), 523 S.E.2d 370. However, the terms of the lease between the City and the Garden show no such intent.

The City and the Garden stated their intention to create an estate for years in Section 12.4 of the lease, which provides:

It is mutually covenanted, understood and agreed by and between [the City] and [the Garden] that this Agreement and the leasehold estate created hereby shall be governed, construed, performed and enforced in accordance with the laws of the State of Georgia. (Emphasis added).

See Jekyll Dev. Assocs. L.P. , 240 Ga. App. at 275 (3), 523 S.E.2d 370 (term "leasehold estate" is a factor to be taken into consideration in determining the nature of the conveyance as an estate for years). In addition the lease refers to the Garden's "leasehold interest" in the property. See Section 3.4 ("Lessor covenants and agrees that throughout the Lease Term neither the Demised Premises, nor Lessee's leasehold interest ...." This phrase is important because an estate for years grants an "interest" or "estate" to the lessee, while a usufruct grants merely a "license." See Jekyll Dev. Assocs. L.P. , 240 Ga. App. at 274 (1), 523 S.E.2d 370 ("A usufruct has been referred to as merely a license in real property, which is defined as authority to do a particular act or series of acts on land of another without possessing any estate or interest therein.") (citation, emphasis, and punctuation omitted).

In addition, the terms of the lease show that parties intended for the Garden to receive more than simple use and possession. Section 3.2 of the lease states that the City holds "fee simple title" in the property and "delivered" that property to the Garden "free and clear." The lease confers to the Garden "exclusive control, possession, and enjoyment" (Section 3.1) and "exclusive control and management" of the property (Section 5.5), including the authority to "exclude any objectionable person or persons from the Garden," to the extent permitted by law (Section 5.7).

Therefore, the language of the lease is consistent with the intention to create an estate for years rather than the intention to grant a usufruct, because the parties used the term "leasehold estate" and granted a...