Hardman v. Dahlonega-Lumpkin County Chamber of Commerce, DAHLONEGA-LUMPKIN

• Decision Date: 02 March 1977
• Docket Number: No. 31926,DAHLONEGA-LUMPKIN,31926
• Citation: 238 Ga. 551,233 S.E.2d 753
• Parties: Bill T. HARDMAN et al. v.COUNTY CHAMBER OF COMMERCE.
• Court: Georgia Supreme Court

Page 753

233 S.E.2d 753

238 Ga. 551

Bill T. HARDMAN et al. v. DAHLONEGA-LUMPKIN COUNTY CHAMBER OF COMMERCE.

No. 31926.

Supreme Court of Georgia.

March 2, 1977.

Rehearing Denied March 17, 1977.

J. Allen Maines, F. T. Davis, Jr., Howard T. Overby, Gainesville, John A. Blackmon, Atlanta, Oliver & Walters, James M. Walters, Gainesville, for appellants.

Richard W. Lay, Dahlonega, for appellee.

UNDERCOFLER, Presiding Justice.

The developers, Hardman, Stuckey, and Hardman and Stuckey Travel Investment, Inc., appeal from the grant of partial summary judgment in favor of the Dahlonega-Lumpkin County Chamber of Commerce. On September 30, 1970, the Chamber of Commerce granted more than fifty acres in Dahlonega to the developers ¹ for thirty three thousand dollars and "subject to the agreement made by the above parties" on the same day. The habendum clause printed on the form deed recited that the grant was to the developers, "heirs and assigns, forever, in Fee Simple." (Emphasis supplied.)

The agreement provided that "The Seller and Purchaser agree that further good and valuable considerations to be paid to the Seller by the Purchaser for the above described property are as follows: . . . " Thereafter a list of four items in furtherance of the development of the acreage for tourist purposes over a period of four years (1970-1973) was included. Only item 2 relative to 1971 is in issue in this litigation. It states: "2. During 1971, the Purchaser intends to use its best efforts to: a. build a new Gold Museum and expand the present Gold Panning Operation. b. begin construction on the Village Square as well as construction of a camping site with a capacity of a minimum of 100 camping spaces. c. spend a minimum of $200,000.00 on capital improvements . . . d. commence a motel feasibility study . . . In the event the items shall not have been completed by July 1, 1972, title to the above described property will revert to the Seller; Seller shall reassume the obligation to pay the note assumed by Purchaser hereunder and Purchaser shall have no further obligations and Liabilities under this Agreement." (Emphasis supplied.)

It is under the provision emphasized above that the Chamber of Commerce brought its ejectment action on July 11, 1975. It claims that the reverter clause created a fee simple determinable and thus that the property reverted automatically when the developers breached these conditions on July 1, 1972. The Chamber of Commerce supported its motion for summary judgment with affidavits stating that the gold museum and campsites had not been constructed. The developers filed their affidavits in opposition the day following the hearing on the motion, but the trial court apparently considered them in granting partial summary judgment to the Chamber of Commerce. The trial court interpreted the reverter clause as having created a fee simple determinable. The developers appeal and we reverse. We conclude the instruments create a fee on condition subsequent and a genuine issue of material fact is raised by the affidavits as to whether or not there has been a breach of the contract provisions, which would give the Chamber of Commerce a right of entry, and, if so, whether there has been a waiver of that right.

1. The developers' first enumeration of error raises the question whether the trial court correctly awarded summary judgment. They state that the trial court "construed the facts before the court to be a breach of a conditional limitation."

The facts before the trial court were presented by affidavit. The Chamber of Commerce presented statements that there was no new gold museum on the property and that no campsites had been developed. In opposition, the developers introduced an affidavit of the manager of "Gold Hills" stating that the Sykes Stamp Mill at the site contained mining artifacts, and of a landscape architect opining that the development of the campsite would be impossible considering "the total development of the site, the terrain, the area necessary . . . , the standard of his profession and the ecological effects of such a project." The trial court apparently discounted the developers' affidavits as hearsay and opinion evidence.

We do not find the manager's affidavit subject to either of these defects, and, although the landscape architect's affidavit may be considered opinion evidence, it is sufficient to oppose a motion for summary judgment. "(A) summary judgment cannot be obtained by a movant which rests entirely on opinion evidence (cits. omitted); albeit, a summary judgment may be successfully contested by use of opinion evidence. See General Motors Corp. v. Wilson, 120 Ga.App. 156, 169 S.E.2d 749 ( (1969) )." Equity National Life Ins. Co. v. Shelnutt, 128 Ga.App. 849, 851, 198 S.E.2d 350, 352 (1973).

2. In their second enumeration of error the developers urge that the trial court improperly interpreted the contract and deed when such a determination should have been a jury question. We do not agree. The interpretation of the language in a deed and in a contract is generally a question of law for the court unless it is so ambiguous that the ambiguity can not be resolved by the ordinary rules of construction. Davis v. United American Life Ins. Co., 215 Ga. 521, 111 S.E.2d 488 (1959). The plain intent of the instruments refutes the developers' position that the reverter clause in the contract is ambiguous as to whether it refers only to the preceding subsection d. on the motel feasibility study or the entire item 2.

Furthermore, applying the rules that contemporaneous documents must be construed together (Berger v. Mercantile National Bank, 231 Ga. 680, 203 S.E.2d 479 (1974); Dyal v. Foy & Shemwell, Inc., 159 Ga. 848, 126 S.E. 783 (1924)); that typed phrases control over printed phrases (Code Ann. § 20-704(7); Atlanta Baggage & Cab Co. v. Loftin, 88 Ga.App. 98, 76 S.E.2d 92 (1953)), and that the first of two contradictory clauses will prevail (Code Ann. § 29-109; Corley v. Parson, 233 Ga. 845, 213 S.E.2d 693 (1975), there are no ambiguities for a jury to consider. It is clear that the deed incorporated the conditions in the contract...