McGuire Holdings v. Tsq Partners

• Decision Date: 26 March 2008
• Docket Number: No. A07A2252.,No. A07A2251.,A07A2251.,A07A2252.
• Parties: McGUIRE HOLDINGS, LLLP v. TSQ PARTNERS, LLC. TSQ Partners, LLC v. McGuire Holdings, LLLP.
• Court: Georgia Court of Appeals

290 Ga. App. 595

660 S.E.2d 397

290 Ga.App. 595

McGUIRE HOLDINGS, LLLP v. TSQ PARTNERS, LLC.

TSQ Partners, LLC v. McGuire Holdings, LLLP.

No. A07A2251.

No. A07A2252.

Court of Appeals of Georgia.

March 26, 2008.

Proctor Hutchins, Robert J. Proctor, Adam C. Caskey, Atlanta, for appellant.

Foltz Martin, Halsey G. Knapp Jr., Jonathan E. Hawkins, Atlanta, for appellee.

RUFFIN, Judge.

McGuire Holdings, LLLP ("McGuire") and TSQ Partners, LLC ("TSQ") own adjoining commercial lots. McGuire sued TSQ to enforce the terms of an easement agreement governing both parcels, and TSQ filed a counterclaim for trespass. The parties filed cross-motions for summary judgment, and the trial court (1) granted TSQ's motion for summary judgment as to McGuire's claim for reimbursement under the easement agreement and (2) denied the parties' motions as to McGuire's use of a detention pond located on TSQ's property. McGuire appeals in Case No. A07A2251, contending that the trial court erred in striking certain affidavits, in granting TSQ's motion for summary judgment as to its claim for reimbursement, and in denying McGuire's motion for summary judgment on its claim that it had the right of full access to the detention pond. TSQ appeals in Case No. A07A2252, alleging that the trial court erred in denying its motion for summary judgment as to its claim for trespass and in failing to award TSQ attorney fees arising out of its defense of McGuire's claim for reimbursement. For reasons that follow, we affirm in part and reverse in part in Case No. A07A2251, and we dismiss Case No. A07A2252 as moot.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts warrant judgment as a matter of law.¹ "We review the evidence and record de novo, construing all reasonable conclusions and inferences in favor of the nonmovant."² "However, `rules of contract construction and interpretation are separate from those rules allocating burdens of proof at trial and on motion for summary judgment,' and thus are to be independently applied."³

So viewed, the evidence shows that Due West, LLC owned property that it subdivided into contiguous Parcels "A" and "B." TSQ purchased Parcel B from Due West and, in connection with the sale, executed the "Due West Easement Agreement" on August 21, 2002. The Easement Agreement provided that Due West

desires to establish hereunder that the development of Parcel B shall be conducted in such manner as to provide easements and development use rights for the benefit of Parcel A for sanitary sewer, stormwater drainage, and access for ingress/egress to the adjacent public roadways. Further, [Due West] desires to provide hereunder that the responsibility for the installation and cost of improvements for all such easements and development rights shall be allocated specifically to the Parcel B owner [, TSQ,] for the benefit of the contiguous Parcel A and the owner thereof.

The Agreement required TSQ to clear, grade, and fill Parcel A to "an average elevation of approximately 1,067 feet with slope to drain of two percent (2%), substantially as shown on the plan." TSQ was also required to install a sanitary sewer system, a roadway for ingress/egress, and a waterline for the benefit of Parcel A. The Agreement further provided that if TSQ failed to complete its obligations thereunder within twelve months from the execution date of the Agreement, the owner of Parcel A would have the right to make the improvements and to be reimbursed by TSQ upon proof of costs.

TSQ graded Parcel A and installed a sanitary sewer system and a roadway on Parcel A. According to TSQ, it graded Parcel A to a drain located on the northeast corner of Parcel A, consistent with the Easement Agreement requirements and the plans approved by the county.⁴

After it purchased the property, McGuire reversed the grade of Parcel A to cause the stormwater to drain into a detention pond located on TSQ's property instead of the drain on Parcel A. McGuire sought reimbursement from TSQ for the grading costs pursuant to the Easement Agreement and sued to recover the costs after TSQ refused to pay. TSQ denied all liability and filed a counterclaim, alleging that McGuire's unauthorized use of the detention pond on TSQ's property — in a manner inconsistent with the Agreement — constituted trespass, and TSQ sought attorney fees.⁵

McGuire filed motions for summary judgment on all pending claims. TSQ filed a cross-motion for partial summary judgment as to all claims and moved to strike certain affidavits filed by McGuire. ⁶

Following a hearing, the trial court entered an order striking two affidavits relied upon by McGuire. The court entered a separate order granting TSQ's motion for summary judgment as to McGuire's claim for reimbursement for repaving Parcel A and denying the parties' cross-motions for summary judgment as to TSQ's trespass claim. The parties cross-appeal, challenging the trial court's rulings.

Case No. A07A2251

1. McGuire contends that the trial court erred in granting summary judgment to TSQ as to McGuire's claim for reimbursement for its grading work under the Easement Agreement. McGuire alleged that TSQ failed to grade Parcel A such that the average elevation was approximately 1,067 feet. In its order, the trial court concluded that McGuire did not provide sufficient evidence regarding the elevation of Parcel A following TSQ's completion of grading work and before McGuire's grading, noting that McGuire's paving of the parcel obliterated evidence of the previous elevation of the property.

(a) McGuire contends that the trial court erred in striking a portion of one of Bryan Arroyave's affidavits. According to the trial court's order, McGuire submitted two affidavits of Brian Arroyave, one dated June 29, 2006, and one dated August 30, 2006. The court struck the third paragraph of the first affidavit and the fourth paragraph of the second affidavit. On appeal, McGuire purports to challenge the striking of the fourth paragraph of the first affidavit — a ruling that the trial court did not make. Thus, this enumeration presents no basis for reversal.⁷

(b) McGuire also challenges the trial court's refusal to consider the affidavit of Mark Lee. Lee also executed two affidavits, the first provided by TSQ and the second by McGuire.⁸ In his initial affidavit dated August 18, 2006, Lee states that he was hired by McGuire to survey Parcel A and that "[his] work resulted in" a February 7, 2005 survey that was attached to the affidavit as an exhibit. Lee also avers that he "was not asked to, nor did [he], calculate the average elevation of Parcel A at any time and nowhere on the Topo[graphical] Survey does it state that the average elevation of Parcel A is 1,062 feet." In his second affidavit, notarized on September 6, 2006, Lee concludes that the average elevation of Parcel A as of January 17, 2005 was 1,063.537 feet, stating that his opinion was based on the February 7, 2005 topographical survey, "survey shots" that he took, and "the fact that the small mound of dirt circled on [the survey] was removed by TSQ."

The trial court implicitly struck Lee's second affidavit, concluding that it contained no indication of his qualifications or the methodology used to reach his conclusions and "fail[ed] to provide competent evidence regarding the average elevation of [P]arcel A" in the time after TSQ's grading and before McGuire began its grading.⁹

OCGA § 24-9-67.1(b), which governs the admissibility of expert testimony, states that

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case.

"`The question of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.'"¹⁰

On appeal, McGuire argues that the trial court's ruling "conflicts with the long standing principle of this Court that conclusions reached by surveyors as to elevation are not considered `opinion' testimony[,] but rather are considered factual testimony." McGuire provides two citations to support this purported "long standing principle" — Bridges v. Dept. of Transp.¹¹ and Ford v. Ga. Power Co.¹² — neither of which involve conclusions by surveyors regarding elevation. Bridges v. Dept. of Transp. involved the survey of a highway to determine right-of-way, not land elevation. Moreover, it supports the trial court's ruling, as we concluded that in the absence of a factual basis therefor, a surveyor's conclusory statements lacked probative value and do not give rise to a triable issue.¹³ And our conclusion in Ford v. Ga. Power Co. — that factual averments as to the height of a power transmission line are admissible — has no relevance here.¹⁴ Notably, McGuire fails to mention authority arguably contrary to its position, including Jakobsen v. Colonial Pipeline Co.,¹⁵ in which we stated that "Georgia courts have consistently recognized surveyors as experts."

Here, other than stating that he had been employed as a full-time surveyor since 1982, Lee offered no testimony whatsoever regarding his "knowledge, skill, experience, training, or education."¹⁶ He never stated that he had any experience in determining land elevation, and he failed to provide any indication of the principles and methods he employed in reaching his conclusions, including...