Nat'l Hills Exch., LLC v. Thompson

• Decision Date: 09 January 2013
• Docket Number: No. A12A2259.,A12A2259.
• Citation: 736 S.E.2d 480
• Parties: NATIONAL HILLS EXCHANGE, LLC et al. v. THOMPSON et al.
• Court: Georgia Court of Appeals

736 S.E.2d 480

NATIONAL HILLS EXCHANGE, LLC et al.

v.THOMPSON et al.

No. A12A2259.

Court of Appeals of Georgia.

Jan. 9, 2013.

David E. Hudson, Augusta, for Appellant.

Kenneth Morris Nimmons, for Appellee.

ANDREWS, Presiding Judge.

Donald Thompson and Windsor Jewelers, LLC (“Windsor”) filed a petition for a restraining order against National Hills, LLC, then the owner of a shopping center opposite the Augusta National Golf Club. Windsor sought to enjoin National Hills' closure of the back entrance of the shopping center contrary to a 2004 easement which it retained upon selling its interest in the shopping center but continuing business operations upon an out-parcel thereof. Following a hearing, the trial court ordered that the current owner of the shopping center and its parent company, NHEP, LLC and 2701 Partners, LLC, respectively, be joined in the case as defendants.¹ Further, the trial court granted Windsor a temporary restraining order not to expire in 30 days which required that the back entrance to the shopping center be opened instanter and directed that no appeal should act as a supersedeas.

National Hills, LLC, NHEP, LLC, and 2701 Partners, LLC (“National Hills”) filed an application for discretionary appeal, which application this Court granted pursuant to OCGA § 5–6–35(j), finding that the trial court's order extending a temporary restraining order beyond 30 days, in effect, granted a directly appealable preliminary injunction. OCGA § 9-11-65(b) (a temporary restraining order “shall expire by its terms within such time after entry, not to exceed 30 days, as the court fixes....” (emphasis supplied); see also Matrix Financial Svcs. v. Dean, 288 Ga.App. 666, n. 1, 655 S.E.2d 290 (2007) (trial court order indefinitely extending a temporary restraining order “is the equivalent of a judgment granting an interlocutory injunction and is directly appealable”). National Hills appeals,contending that the trial court erred in construing the easement at issue beyond its scope “in violation of established principles of Georgia law.” Finding that the plain meaning of the 2004 easement is clear and unambiguous, we affirm.

“The construction, interpretation and legal effect of a contract such as an easement is an issue of law, which is subject to de novo review. (Citations, footnote, and punctuation omitted.) Parris Props., LLC v. Nichols, 305 Ga.App. 734, 735(1), 700 S.E.2d 848 (2010). “The normal rules of contract construction apply, and absent ambiguity that cannot be resolved by applying the rules of contract construction, the contract remains a question of law.” (Citation and punctuation omitted.) Huckaby v. Cheatham, 272 Ga.App. 746, 750–751(1), 612 S.E.2d 810 (2005). “The first rule of contract construction is to determine the parties' intent, and if the language is clear the contract shall be enforced according to its clear terms. In fact, no construction is even permitted when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation.” (Footnote and punctuation omitted.) Longstreet v. Decker, 312 Ga.App. 1, 3(1), 717 S.E.2d 513 (2011). If the plain language is ambiguous, however, the contract is interpreted in accordance with the rules set forth in OCGA § 13–2–2 to resolve the ambiguity. McGuire Holdings, LLLP v. TSQ Partners, LLC, 290 Ga.App. 595, 602(2)(b), 660 S.E.2d 397 (2008). And “[i]f after doing so the ambiguity still remains, the jury or other factfinder must resolve the ambiguity.” (Footnote omitted.) Id.

The 2004 easement at issue provided the following: “Ingress/egress to the shopping center traffic light through all existing access points will be guaranteed for the employees and customers of 2635 Washington Rd.[,now Windsor].”

Relying heavily on the plat attached to the 2004 easement, National Hills argues that the easement retained by Windsor provided no more than a route to and from the store to the traffic light for the benefit of its employees and customers and that the trial court's...