Park Regency Partners, LP v. Gruber

• Decision Date: 03 November 2004
• Docket Number: No. A04A1680., No. A04A1601
• Citation: 608 S.E.2d 667,271 Ga. App. 66
• Parties: PARK REGENCY PARTNERS, L.P. v. GRUBER et al. Gruber et al. v. Park Regency Partners, L.P.
• Court: Georgia Court of Appeals

608 S.E.2d 667

271 Ga. App. 66

PARK REGENCY PARTNERS, L.P. v. GRUBER et al.

Gruber et al. v. Park Regency Partners, L.P.

Nos. A04A1601, A04A1680.

Court of Appeals of Georgia.

November 3, 2004.

Reconsideration Denied December 15, 2004.

John Hutchins, Larry Floyd, Christopher Wiech, McKenna, Long & Aldridge LLP, James Washburn, McKenna, Long, Aldridge & Norman, Atlanta, for appellant/appellee.

Randall Lipshutz, James Zito, Lipshutz, Greenblatt & King, Atlanta, for appellee/appellant.

PHIPPS, Judge.

Morton M. Gruber and Ellen J. Gruber executed a purchase and sale agreement with Park Regency Partners, L.P. (Park Regency) the developer of a condominium project known as "Park Regency, a Condominium." Nearly two years later, the Grubers filed a breach of contract action against Park Regency, alleging that the documents they had signed violated the Georgia Condominium Act¹ and so rendered the purchase and sale agreement void, or in the alternative, voidable. The trial court found that the Grubers' claims lacked merit and granted summary judgment to Park Regency but denied Park Regency's post-judgment motion to add a counterclaim against the Grubers for attorney fees. Park Regency appealed that judgment. The trial court, however, dismissed Park Regency's appeal as a result of Park Regency's failure to timely pay the costs as required by statute. In Case No. A04A1601, Park Regency appeals the trial court's dismissal of its appeal. In Case No. A04A1680, the Grubers challenge the trial court's denial of their motion for summary judgment and the grant of summary judgment to Park Regency. Finding no error in either case, we affirm.

The following facts are not controverted. On September 14, 1999, the Grubers executed a purchase and sale agreement with Park Regency that specified a total purchase price of $482,800, which included $474,800 for one residential unit designated as Unit 1108 and $8,000 for two parking units to be chosen later. The Grubers submitted an earnest money letter of credit for $48,280 to Park Regency. Park Regency provided the Grubers with a disclosure package that purported to comply with the statutory disclosure requirements. The purchase and sale agreement obligated Park Regency to complete construction within two years of the date of the agreement's execution.

As executed, the agreement did not specify or identify the parking units being purchased by the Grubers because the layout of the garage had not yet been finalized, making the selection of parking units impractical. Paragraph 1(a)(ii) of the agreement noted that Exhibit D depicted the "preliminary floor plan of the garage and location of the Parking Unit(s)." Paragraph 1(a)(ii) continued by stating:

Purchaser understands and agrees that selection of the specific parking unit(s) being purchased hereunder cannot be made until finalization of the floor plan and layout for the garage ("Final Garage Plan"). Seller shall notify Purchaser when the Final Garage Plan is available and when it is Purchaser's turn ("Selection Priority Number") to select the specific Parking Unit(s) being acquired hereunder. Purchaser is hereby assigned the Selection Priority Number identified on Schedule A.

Schedule A designated the Grubers' selection priority number as 17. The Grubers were provided the preliminary floor plan for the parking garage.

On June 19, 2001, Park Regency notified the Grubers that their condominium unit would be completed on or before July 25, 2001, and asked them to set a closing date. The Grubers did not do so. On July 11, 2001, Park Regency asked the Grubers to select their parking units based on the final parking garage plan. The Grubers then selected parking units P3-26 and P3-27 and faxed their choices to Park Regency.

Shortly after indicating their parking unit selections, by letters dated August 7, 2001, and August 15, 2001, the Grubers notified Park Regency of their intent to rescind the purchase agreement and requested the return of their letter of credit. In the August 7 letter, the Grubers notified Park Regency that they were invoking Paragraph 5(c) to rescind and cancel the purchase agreement.² In the August 15 letter, the Grubers outlined a different basis for rescinding the transaction — that Park Regency had made material changes to the declaration between the time of the execution of the purchase agreement and the date on which the declaration was recorded. Park Regency reminded the Grubers that under Paragraph 20, it had authority to make certain changes to the declaration and urged them to comply with the terms of the agreement. When the Grubers did not select a date for closing, Park Regency set a date and when the Grubers failed to appear for the closing, Park Regency sent notice of their default to them.

After Park Regency refused to refund their earnest money, the Grubers filed suit. The Grubers alleged that the purchase and sale agreement was void because it lacked an adequate legal description of the parking units. They also claimed that the recorded declaration was legally insufficient because it failed to assign a specific percentage of undivided interest in the common elements, failed to allocate a vote to each parking unit, and failed to allocate to each parking unit a share of the liability for common expenses as required by OCGA §§ 44-3-77 through 44-3-80. In the alternative, the Grubers claimed that the purchase agreement was voidable due to certain breaches of disclosure requirements and due to material alterations in the disclosure documents.

Park Regency and the Grubers both sought summary judgment. The trial court granted Park Regency's motion and denied the Grubers' motion. After the entry of summary judgment, Park Regency filed a motion for leave to add a counterclaim for attorney fees under OCGA §§ 9-11-13(e) and 9-11-15(d). The trial court denied Park Regency's motion, and Park Regency filed a notice of appeal of that ruling. The Grubers then filed a notice of cross-appeal. Thereafter, the Grubers timely paid their bill of costs while Park Regency did not. After Park Regency failed to pay its bill of costs within 20 days as required by OCGA § 5-6-48(c), the Grubers filed a motion to dismiss Park Regency's appeal.

At the evidentiary hearing on the Grubers' motion to dismiss, Park Regency conceded that it had not paid the costs within 20 days. Although it admitted that a "bill of costs was sent by the Clerk of the Superior Court," Park Regency pointed out that the bill "simply was addressed to the firm; it was not addressed to any attorney," and was therefore improperly addressed. Park Regency offered as its sole witness John Hutchins, its lead counsel. Hutchins testified that "[t]he first time I realized that the bill of costs had been issued was when we received Mr. Gruber's motion [to dismiss]." Hutchins admitted that when the superior court's website was checked, the docket reflected the unpaid bill of costs which the law firm then immediately paid. Hutchins testified that "[w]e know it came to the firm, it was signed for, and then we don't know what happened to it after that point." Hutchins explained that the firm's normal procedure "for improperly addressed mail" is for that item to go "to our head receptionist who sends out an e-mail identifying the mail in whatever way it can be identified, usually with a case name or file, and says: [t]his mail needs to be claimed and then the lawyer who is involved in the case will claim the mail and take whatever action's necessary." Admitting that "the firm's standard practice, for some unknown reason, broke down," Hutchins conceded that "[t]his was something that fell through [the] cracks." Asserting that "in the grand scheme of things this was an excusable mistake," Park Regency asked the court to deny the motion to dismiss.

Subsequent to the hearing, in a detailed order, the trial court rejected Park Regency's arguments. In an order dismissing Park Regency's appeal, the trial court entered detailed findings. It found that the clerk had sent the cost bills to each party on March 21, 2003, by certified mail, return receipt requested. The court found that the Grubers received the bill for their cross-appeal on or about March 25, 2003, and that Park Regency received its bill on or about March 27, 2003. The court noted that the Grubers had paid their cost bill on March 27, 2003, but that Park Regency did not pay its bill until May 13, 2003, after the Grubers filed their motion to dismiss. The trial court expressly found that Park Regency's failure to timely pay the cost bill delayed the transmission of the case to this court and further found that "such failure to pay the cost bill was both unreasonable and inexcusable." While dismissing Park Regency's appeal, the trial court directed that the Grubers' appeal remain pending and be unaffected by that dismissal.

Case No. A04A1601

1. Park Regency contends that the trial court abused its discretion in dismissing its appeal. Asserting that the trial court's grant of the motion to dismiss was a "blatant abuse of its discretion," Park Regency claims that under the circumstances, its failure to pay the costs bill was neither unreasonable nor inexcusable.

Under OCGA § 5-6-48(c), the trial court may dismiss an appeal, after notice and an opportunity for a hearing, "where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence." A trial court's decision to grant or deny a motion to dismiss an appeal under OCGA § 5-6-48(c) is reviewed under an abuse of discretion standard.³ When making factual determinations based upon evidence presented at a hearing on the question of dismissal, the trial court "is vested with a broad discretion" to decide whether the appeal should be dismissed.⁴ Absent...