Peck v. Lanier Golf Club, Inc.

• Decision Date: 25 June 2009
• Docket Number: No. A09A0639.,A09A0639.
• Citation: Peck v. Lanier Golf Club, Inc., 680 S.E.2d 595, 298 Ga. App. 555 (Ga. App. 2009)
• Parties: PECK et al. v. LANIER GOLF CLUB, INC.
• Court: Georgia Court of Appeals

680 S.E.2d 595

298 Ga. App. 555

PECK et al. v. LANIER GOLF CLUB, INC.

No. A09A0639.

Court of Appeals of Georgia.

June 25, 2009.

McFarland & McFarland, Robert P. McFarland, Cumming, for appellants.

Andrea C. Jones, Atlanta, for appellee.

ANDREWS, Presiding Judge.

Michael Peck filed a petition for class certification on behalf of himself and all homeowners with lots adjacent to the Lanier Golf Club, Inc., requesting a declaratory judgment from the court that the adjacent lot owners had "an irrevocable property interest in the Golf Course" and limiting the use of the property "to golf course purposes only." The trial court denied the petition for class certification, finding that Peck did not have an implied restrictive covenant on the golf course, and dismissed Peck's claim for lack of standing. Because the order signed by the trial court addressed only the merits of the underlying claim and did not make the required findings of fact and conclusions of law with regard to whether each factor required by OCGA § 9-11-23, the class action statute, had been established, we reverse the dismissal and remand the case to the trial court for further proceedings.

This case arose when the owners of the Lanier Golf Club proposed to sell the land to a developer and filed an application to rezone the property. Peck, who owns a lot adjacent to the golf course, filed this Declaratory Judgment Action on behalf of himself and other similarly situated land owners claiming that because the golf course was a material part of the value of their property, because they paid a premium price for the golf course lots, and because the golf course was the principal incentive for the purchase of the lots, the landowners had acquired an "easement or implied covenant" in the golf course. The relief requested was that "[t]he Court declare and enforce against Defendant or any new owners an implied restriction limiting use of this property to golf course purposes only."

Peck filed a motion to certify the class. He stated that there were 121 landowners with property adjacent to the golf course and submitted affidavits from several of the landowners, who were also deposed, stating, inter alia, that they owned property adjacent to the golf course, paid a higher price for their property because of the golf course, and had seen property values decrease as a result of the closing of the course and the pending sale for development. Peck also submitted testimony from a real estate agent who testified that the lots were marketed as golf course lots and therefore people paid almost three times more for those lots than similar lots not adjacent to the golf course. Peck contended that he had stated a cognizable claim, citing Forsyth County v. Martin, 279 Ga. 215, 217(1), 610 S.E.2d 512 (2005) ("plaintiffs established they purchased their lots according to a subdivision plat which had a lake area designated on it and paid more for their lakefront lots than the purchase price for non-lakefront lots, thereby acquiring an irrevocable easement in the lake") (citations omitted).

After the hearing on Peck's motion to certify the class, the trial court denied the motion and dismissed the claim. This appeal followed.

When a court determines the propriety of a class action, "the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits but whether the requirements of [OCGA § 9-11-23] have been met." (Citation omitted.) Sta-Power Indus. v. Avant, 134 Ga.App. 952, 954(1), 216 S.E.2d 897 (1975). "Any assertion that the named plaintiff cannot prevail on [his] claims does not comprise an appropriate basis for denying class certification." (Punctuation and footnote omitted.) Village Auto Ins. Co. v. Rush, 286 Ga.App. 688, 692(2), 649 S.E.2d 862 (2007). Further, "[a]ny argument that [Peck] is not an adequate representative because [he] will not ultimately prevail on [his] claim does not comprise an appropriate basis for denying class certification." (Citation omitted.) Taylor Auto Group v. Jessie, 241 Ga.App. 602, 604(2), 527 S.E.2d 256 (1999).

Rather, the claim must be analyzed under OCGA § 9-11-23, which provides in pertinent part:

(a) One or more members of a class may sue or be sued as representative parties on behalf of all only if: (1) The class is so numerous that joinder of all members is impracticable; (2) There are questions of law or fact common to the class; (3) The claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) The representative parties will fairly and adequately protect the interests of the class.

(b) An action may be maintained as a class action if the prerequisites of subsection (a) of this Code section are satisfied, and, in addition: (1) The prosecution of separate actions by or against individual members of the class would create a risk of: (A) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or (B) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; (2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or...