Geriner v. The Branigar Organization, Inc.

• Decision Date: 15 September 1997
• Docket Number: No. S97A1261,S97A1261
• Citation: 268 Ga. 389,489 S.E.2d 305
• Parties: , 97 FCDR 3413 GERINER v. THE BRANIGAR ORGANIZATION, INC.
• Court: Georgia Supreme Court

Page 305

489 S.E.2d 305

268 Ga. 389, 97 FCDR 3413

GERINER v. THE BRANIGAR ORGANIZATION, INC.

No. S97A1261.

Supreme Court of Georgia.

Sept. 15, 1997.

Gregory V. Sapp, Calhoun, Sapp & Calhoun, Savannah, for Richard M. Geriner.

Leamon R. Holliday, III, Bouhan, Williams & Levy, LLP, Savannah, for Branigar Organization, Inc.

CARLEY, Justice.

In 1972, The Branigar Organization, Inc. (Branigar) began development of a residential community known as The Landings. As an amenity of this development, Branigar built and operated various recreational facilities which, for a fee, it made available to residents. In 1975, Richard Geriner bought property in The Landings and, upon his payment of a $750 initiation fee and execution of a written membership agreement, Branigar granted him the right to use the recreational facilities. The agreement provided that Geriner's non-equity membership in Branigar's facilities terminated on the last day of the year in which he sold or transferred his property.

Geriner never sold or transferred his property, but, in 1989, Branigar sold the recreational facilities to The Landings Club, Inc. (Club). As the result of this sale by Branigar, Geriner and the other residents then holding non-equity memberships in the recreational facilities were given three options: 1) receive a $7500 credit toward purchase of an equity membership in the Club; 2) receive a refund of the original initiation fee and lose the right to further use of the Club's facilities; or, 3) forfeit the original initiation fee and retain the right to use the Club's facilities through 1990. Geriner did not expressly elect any of these options, but he did continue to use the recreational facilities without purchasing an equity membership in The Club.

In 1990, a number of residents of The Landings, other than Geriner, filed suit, alleging Branigar's breach of their membership agreements granting them the right to use the recreational facilities until they sold or transferred their property. In that lawsuit, the residents sought damages or, in the alternative, specific performance of their membership agreements with Branigar. The trial court held that the membership agreements created licenses for the use of the recreational facilities and that Branigar had breached those agreements and thereby damaged each of the resident-licensees in the amount of $7500.

In 1994, Geriner filed his own suit against Branigar, alleging a breach of his membership agreement and seeking damages or specific performance, as well as attorney's fees under OCGA § 13-6-11. Consistent with the rulings in the prior suit, the trial court granted summary judgment in favor of Geriner in the amount of $7500 on his claim for damages and granted Branigar's motion for summary judgment as to Geriner's claims for specific performance and attorney's fees. Geriner appeals from that order of the trial court. This court, rather than the Court of Appeals, has jurisdiction over this case, because the viability of Geriner's equitable claim for specific performance is an issue to be resolved on appeal. See Engram v. Engram, 265 Ga. 804, 463 S.E.2d 12 (1995); Coleman v. Coleman, 265 Ga. 568, 459 S.E.2d 166 (1995); Stephens v. Trotter, 205 Ga.App. 497, 422 S.E.2d 568 (1992). Compare Beauchamp v. Knight, 261 Ga. 608, 409 S.E.2d 208 (1991).

1. Geriner enumerates as error the entry of summary judgment in the amount of $7500 on his claim for damages. In an undisputed affidavit, a Club employee states that, in 1989, $7500 was the cost of a non-equity membership of the type Geriner lost upon the termination of his original membership agreement with Branigar. According to Geriner, this statement constitutes no more than the unsubstantiated opinion of the affiant. However, the affiant's statement is based upon personal knowledge of the cost of a non-equity membership, and is not a mere unsubstantiated opinion as to the value of such a membership. Van Voltenburg v. State, 138 Ga.App. 628, 629(1), 227 S.E.2d 451 (1976); Jones v. Universal C.I.T. Credit Corp., 88 Ga.App. 24, 27(3), 75 S.E.2d 822 (1953). Compare Inman v. Trust Co. Bank, 207 Ga.App. 605, 428 S.E.2d 805 (1993).

Geriner further contends that he is entitled to recover at least the amount that it would cost for him to obtain an equity membership in the Club. However, an equity membership in the Club would not be comparable to the non-equity license to use Branigar's recreational facilities which Geriner lost as the result of the termination of his original membership agreement. Thus, a calculation of damages based upon an equity membership in the Club, rather than a non-equity license to use the recreational facilities, would result in a windfall to Geriner. "Damages are given as compensation for the injury sustained and '(a)n injured party can not be placed in a better...