Kace Investments, L.P. v. Hull, No. A05A2014.

• Decision Date: 07 March 2006
• Docket Number: No. A05A2014.
• Citation: 278 Ga. App. 477,629 S.E.2d 26
• Parties: KACE INVESTMENTS, L.P. v. HULL et al.
• Court: Georgia Court of Appeals

278 Ga. App. 477

629 S.E.2d 26

KACE INVESTMENTS, L.P. v. HULL et al.

No. A05A2014.

Court of Appeals of Georgia.

March 7, 2006.

Reconsideration Denied March 27, 2006.

Chilivis, Cochran, Larkins & Bever, John K. Larkins, Jr., Thomas D. Bever, Atlanta, Johnston, Wilkin & Williams, William J. Williams, Augusta, Fleming, Jackson, Ingram & Floyd, William M. Fleming, William A. Trotter III, Augusta, Warren D. Evans, for appellant.

Tucker, Everitt, Long, Brewton & Lanier, John B. Long, A. Montague Miller, Augusta, Fulcher & Hagler, Robert C. Hagler, James W. Purcell, Augusta, for appellees.

ELLINGTON, Judge.

Plaintiff Kace Investments, L.P. ("Kace") appeals from two orders of the Superior Court of Richmond County. Kace contends the court erred in finding it in civil contempt on February 18, 2005 for failing to comply with prior orders of the court. Kace also contends the court erred in its August 26, 2004 order by allowing defendants/counter-claimants James M. Hull, III and Windsor Square, L.L.C. (collectively "Hull") to amend the answer and counterclaim to add claims seeking damages, punitive damages, and attorney fees after Hull won on "all issues" in an appeal to this Court. Finding no error, we affirm.

This is the second appearance of this case before us. In Kace Investments v. Hull, 263 Ga.App. 296, 587 S.E.2d 800 (2003) ("Kace I"), we summarized the relevant facts and issues appealed as follows:

James M. Hull owns land [Tract C] developed as a shopping center adjacent to land [Tract A] owned and developed by Kace Investments, L.P. The two tracts of land are subject to mutual easements. Hull erected a fence between the two tracts, claiming that Kace forfeited its easement over his land when it refused to maintain sufficient qualified parking spaces on its land. Kace sued Hull to have the fence removed. Hull counterclaimed to enjoin Kace's construction of a second fence around a secure parking area on [Tract A]. The court granted Hull summary judgment on his counterclaim, holding that Kace could not exclude him from its secure parking area. The court denied summary judgment on the issue of Hull's fence, finding that disputed issues of fact precluded definitive rulings on (i) the number of parking spaces Kace was required to maintain and (ii) the issue of Hull's alleged laches in declaring the easement over his land forfeited. Both sides appeal. We hold that the undisputed material facts mandated summary judgment in favor of Hull on all issues, and we therefore affirm in part and reverse in part.

Id. at 296, 587 S.E.2d 800. Construing the evidence in the light most favorable to the nonmovant, we concluded that

the evidence showed that the owner of four adjoining tracts of land (Tracts A, B, C, and D) filed a Declaration in 1975, setting forth various restrictions and easements that would bind future owners of the four tracts. The respective future owners of these tracts would enjoy mutual easements over each other's parking areas, as located on those tracts from time to time. However, the owner of Tract A would, at the option of the owner of Tract C, forfeit its easement over Tract C if the owner of Tract A failed to maintain sufficient qualified parking spaces on its tract. To avoid forfeiture, the owner of Tract A had to maintain not less than five parking spaces per 1,000 square feet of floor area of any buildings constructed on its tract. The size of the parking spaces had to meet certain specified dimensions. The only exception to the 5:1000 ratio requirement was if Tract A were developed for something other than retail commercial use, in which event the owner of Tract A, to avoid forfeiture of its easement over Tract C, would be required to provide only those parking facilities required for the development by the local county zoning ordinance. The Declaration further provided that the owner of Tract A could construct buildings on its tract only in those locations designated on an accompanying plat (the "footprint" requirement). All of these covenants ran with the land. The Declaration could be modified with the consent of all the owners of the four tracts of land.

In 1981, the owner of Tract A sought to modify the Declaration to allow that owner to construct a building on Tract A in a place different from the footprint specified on the plat. The owner of Tract A and the owner of Tract C executed a Modification in which they agreed (i) to eliminate the footprint requirement on Tract A and (ii) to require a 5:1000 parking space ratio on Tract A for all buildings constructed on that tract, regardless of the purpose for those buildings.

The owner of Tract A constructed a home improvement retail establishment on its property, which establishment eventually went out of business. Hull as a subsequent owner of Tract C complained to the owner of Tract A in the early 1990s that Tract A's parking ratio was insufficient. In 1999, Hull conveyed some of Tract C to Windsor Square, LLC, an entity he owned. In October 2000, Kace executed a contract with the United States Postal Service to renovate the existing building on Tract A and then to lease it to USPS. In reliance on this contract, Kace purchased Tract A in November 2000 and began renovating the building. A quitclaim deed to Kace evidencing this transaction specifically referenced that the property was subject to the Declaration as modified.

Hull raised the parking ratio problem to Kace in a meeting in January 2001 and threatened to terminate Kace's easement over Tract C if the problem were not resolved. When Kace did not respond as Hull desired, a few days later Hull demanded in a letter that Kace present him with a plan to develop the parking within the required ratio. Kace presented no plan satisfactory to Hull, so on March 13 Hull verbally terminated Tract A's easement over Tract C. On March 16, Hull erected a fence between Tract A and Tract C, and on March 21, Hull sent a letter to Kace confirming the termination of the easement.

On March 23, Kace sued Hull (Windsor Square was later added as a defendant) to have the fence removed and for damages. Kace admitted that under the Declaration as modified, Kace was required to create and maintain a 5:1000 parking ratio on Tract A, but stated that Kace would achieve this ratio once the renovation was complete. Thus, Kace claimed that Hull had prematurely terminated Kace's easement over Tract C. Hull counterclaimed, asking for a declaratory judgment that he properly terminated the easement. Shortly after receiving a copy of the USPS lease requiring a secure parking area on Tract A, Hull amended its counterclaim to enjoin Kace from excluding Hull from the proposed secure parking area. Both sides sought an interlocutory injunction, which was denied. Kace built a fence around the secure parking area.

Hull moved for summary judgment, arguing that under the language of the Declaration as modified, Kace was required to maintain the 5:1000 parking ratio and had not done so. Thus, Hull contended that he properly terminated Kace's easement over Tract C. Hull further argued that the now-fenced parking area violated his right to access all parking on Tract A. Kace also moved for summary judgment, contending that Hull had not properly nor timely notified Kace of the easement termination and therefore had no power to terminate the easement. Kace also argued that it met the modified Declaration's requirement of a 5:1000 parking ratio. The court granted Hull summary judgment on the issue of the fenced parking area, finding that the plain language of the Declaration required that all parking areas created on Tract A were to be available to Hull. The court denied all parties summary judgment on the question of whether Hull properly and timely terminated the easement for failure to maintain the requisite parking ratio. The court explained that the Modification was not binding to amend the Declaration, and that the unamended Declaration allowed the local zoning regulations to control the parking ratio since the building on Tract A was now something other than a retail development. The court concluded that a post office was not a retail development but that issues of fact precluded the court from classifying the building precisely under the zoning regulations. Accordingly, since the court could not determine at this stage what the local zoning regulations required for parking facilities on Tract A, and since the court determined that some evidence showed that Hull may have neglected to assert his right to adequate parking on Tract A, the court decided that summary judgment was inappropriate.

Id. at 297-299, 587 S.E.2d 800.

We resolved Kace's appeal by holding that the trial court correctly determined that the Declaration required that all parking areas created on Tract A were to be available to Hull and that Hull could not be excluded from Tract A. Kace I at 300-301(2), 302-304(4), (5), 587 S.E.2d 800. In reaching this conclusion, we specifically found that Kace's Supremacy Clause arguments pertaining to the application of local zoning ordinances to its USPS tenant were both untimely raised and without merit. Id. at 299-300(1), 587 S.E.2d 800. Therefore, we affirmed the court's injunction holding that it "sufficiently described the property and the act to be restrained." Id. at 301-302(3), 587 S.E.2d 800. We resolved Hull's cross-appeal by determining that the trial court erred in denying Hull's motion for summary judgment. We held that since the undisputed evidence showed that Kace did not maintain sufficient parking as required under the Modification, Hull had the right to terminate Kace's easement over Tract C. Id. at 302-304(5), 587 S.E.2d 800. We also held that Hull timely terminated Kace's easement in Tract C. Id. at 304-305(6), 587 S.E.2d 800.

After the remittitur was returned to the superior court, Hull filed a pleading styled "Third Amendment to Answer and Counterclaim (For Injunction and Damages)."...