Lesser v. Doughtie

• Decision Date: 06 November 2009
• Docket Number: No. A09A1167.,A09A1167.
• Citation: 686 S.E.2d 416
• Parties: LESSER v. DOUGHTIE et al.
• Court: Georgia Court of Appeals

686 S.E.2d 416

LESSER v. DOUGHTIE et al.

No. A09A1167.

Court of Appeals of Georgia.

November 6, 2009.

Donald W. Johnson, for appellant.

Davidson, Fuller & Sloan, Stephen P. Fuller, Duluth; Glover & Davis, Peter A. Durham,

Newnan; Owen & Murray, James R. Fortune, Jr., Griffin; Carlock, Copeland & Stair, David F. Root, Julia A. Merritt, Atlanta, for appellees.

BERNES, Judge.

In this civil action, Gayle Lesser sued appellees, Chris S. Doughtie; James E. Crane; D. Michael Duffey; Bowmac, LLC; and Dodson Creek, LLC, for specific performance or, alternatively, for monetary damages, based upon the breach of a promise to build a fence on the land running between Lesser's property and the property currently or formerly owned by the appellees. Each of the appellees moved for summary judgment and asserted various defenses. In a summary order, the trial court granted the appellees' motions. For the reasons that follow, we affirm the grant of summary judgment as to Doughtie, Crane, and Duffey, but reverse as to Bowmac and Dodson Creek.

It is well established that on appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. This requires a de novo review of the evidence.

(Citations and punctuation omitted.) Rubin v. Cello Corp., 235 Ga.App. 250, 250-251, 510 S.E.2d 541 (1998). We will affirm the ruling of the trial court if it is right for any reason. Nash v. Studdard, 294 Ga.App. 845, 852(4), 670 S.E.2d 508 (2008).

The facts of this case are largely undisputed. Lesser is the owner of several parcels of property located in Fulton County. In March 2002, Forest Creek, Inc. purchased nearly 31 acres of property adjacent to and directly south of Lesser's land for the purpose of developing a subdivision ("the Property"). At that time, appellee Doughtie was the president, one of only two shareholders, and the registered agent of Forest Creek.¹ In preparation for its planned development, Forest Creek filed an application with Fulton County to amend the zoning ordinance governing the Property.

Toward the end of 2002, Forest Creek entered into a contractual agreement with several nearby landowners, including Lesser, by which the parties intended to "govern[] the development of the Property" (the "Agreement"). In it, the landowners expressly agreed to support Forest Creek's zoning application during any hearings before county officials; agreed not to initiate, support or participate in any litigation challenging the application; and agreed not to attempt to prevent the development of the Property. In return, Forest Creek committed to develop the Property in conformance with several conditions, which were specifically set forth in Section 2 of the Agreement. The condition at issue in this case provided:

Forest Creek shall at its sole cost and expense install a vinyl coated, chain link fence, no less than six (6) feet in height, along the north, east and southern property lines at the request of two-thirds (2/3) of the property owners abutting Forest Creek's property line ....

The Agreement also set forth the parties' intent that its terms and conditions "shall be binding on the successors, successors-in-title, legal representatives and assigns of Forest Creek ... and [the landowners], respectively." And significantly, the Agreement made clear that it was meant to create restrictive covenants to the Property:

It is the intent of the parties hereto that the conditions set forth in Section 2 of this Agreement shall be restrictive covenants to the Property, including any portion thereof in proper form and consistent with the laws and requirements of the State of Georgia for such restrictive covenants (the "Restrictive Covenants"). Any mortgage or security deed now existing or hereafter placed as a lien on the Property or any portion thereof shall be subordinated to the Restrictive Covenants and this Agreement.

In the event of a breach, the Agreement limited the defenses available to the offending party As it is the intention of the parties hereto that the Restrictive Covenants be enforceable by the parties hereto, their respective heirs, successors and assigns, Forest Creek does hereby waive, surrender and forego any defense which might prevent the enforcement of the Restrictive Covenants by ... any of the [landowners], their respective heirs, successors or assigns, including, but not limited to the following defenses:

a. Any defense regarding lack of privity;

. . .

d. Any defense regarding the restrictive covenant being a personal covenant.

And finally, in the event of a breach "by any party, its successors, successors-in-title, legal representatives or assigns," the Agreement expressly authorized the successful non-breaching party "to recover reasonable attorneys' fees, legal expenses and other costs and fees."

The text of the Agreement then recited that the parties were "execut[ing] this instrument under seal," and each signatory had the designation "[seal]" following his or her respective signature. Doughtie signed the Agreement as president of Forest Creek and included Forest Creek's corporate seal following his signature.

The Agreement, which included a legal description of the Property, was filed and recorded in December 2002. In November 2003, the requisite number of landowners requested that Forest Creek install a fence around the Property as provided in Section 2 of the Agreement. Forest Creek in turn sent a letter to the landowners dated in January 2004 confirming receipt of the fence request. The letter further provided that during the development of the Property, Forest Creek would install the fence "concurrent with the installation of the chain link fence around the detention facility" and assured the landowners that, "[w]hen installed, the fence will be in accordance with that required in [the Agreement]."

Although Forest Creek had prepared engineering plans and submitted them to Fulton County in order to obtain a land disturbance permit for the development, it sold the Property while the permit application was pending. In January 2005, Forest Creek transferred the undeveloped Property by warranty deed to appellees Crane and Duffey. The warranty deed expressly provided that it was "given subject to all easements and restrictions of record." Approximately two weeks later, in February 2005, Crane and Duffey conveyed the undeveloped Property to Bowmac.²

Bowmac ultimately obtained the land disturbance permit and developed the Property into a residential subdivision which included lots, public roads, common areas, an undisturbed buffer, and tree save areas. On February 10, 2006, Lesser observed that Bowmac had commenced building the fence surrounding the detention facility. According to her deposition testimony, on that day she spoke to a representative of Bowmac and forwarded him a copy of the Agreement reflecting the obligation to build the second fence at issue.

The final plat of the development, which had been signed by Bowmac, was recorded in August 2006. Within the zoning conditions reflected on the face of the plat was a notation that, "a vinyl coated, chain link fence no less than six (6) feet in height along the north, east and southern property lines may be allowed in the undisturbed buffer." The fence was never built.

Bowmac conveyed the developed Property to Dodson Creek in September 2006.³ Lesser filed the instant action in July 2007.

1. Statute of Limitation. The appellees each moved for summary judgment on the ground that Lesser filed her complaint outside the applicable statute of limitation. Relying upon OCGA § 9-3-29, the appellees contended that Lesser's suit involved the breach of a restrictive covenant which necessarily had to be filed within two years "after the right of action accrue[d]." OCGA § 9-3-29(a). They further collectively argued that her cause of action accrued in November 2003, when the landowners made the demand to Forest Creek to build the fence or, at the very latest, in January 2005, when Forest Creek conveyed the Property to Crane and Duffey without first having built the fence.⁴ Either way, appellees asserted that Lesser's action, filed in July 2007, was time-barred.

Lesser, on the other hand, contended that, as a sealed document, the Agreement was subject to a 20-year statute of limitation pursuant to OCGA § 9-3-23. Alternatively, she asserted that the statute of limitation did not begin to run until the Agreement was violated, which did not occur until sometime after February 2006, when Bowmac began installing the fence around the detention facility and yet failed to build the fence at issue. Because she filed suit within two years of that date, Lesser contended her action was timely even using the shorter time limitation.

Pretermitting the question of which of the two competing statutes of limitation applies, we conclude that Lesser's complaint was timely filed regardless. Even the two-year limitation set forth in OCGA § 9-3-29(a) did not begin to run until Lesser's right of action had accrued. "The true test to determine when a cause of action accrues is to ascertain the time when the plaintiff could first have maintained his or her action to a successful result." (Citation and punctuation omitted.) Colormatch Exteriors v. Hickey, 275 Ga. 249, 251(1), 569 S.E.2d 495 (2002). See Scully v. First Magnolia Homes, 279 Ga. 336, 337-338(1), 614 S.E.2d 43 (2005); Tiismann v. Linda Martin Homes Corp., 279 Ga. 137, 138, 610 S.E.2d 68 (2005). In a contract action, a viable claim does not arise until the time of the alleged breach. Wallace v. Bock, 279 Ga. 744, 747(2), 620 S.E.2d 820 (2005).

Here, the Agreement expressly contemplated that the conditions set forth in Section 2, including the building of the fence at issue, were to take effect during the actual development of the Property. Any attempt...