Perry Golf Course v. Hous. Auth. of Atlanta

Decision Date05 November 2008
Docket NumberNo. A08A1231.,No. A08A1232.,A08A1231.,A08A1232.
Citation294 Ga. App. 387,670 S.E.2d 171
PartiesPERRY GOLF COURSE DEVELOPMENT, LLC v. HOUSING AUTHORITY OF the CITY OF ATLANTA et al. Brock Built, LLC v. Perry Golf Course Development, LLC et al.
CourtGeorgia Court of Appeals

Greenberg Traurig, Mark G. Trigg, Jonathan K. Waldrop, Richard J. Valladares, Atlanta, for appellants.

Ashe, Rafuse & Hill, William B. Hill, Jr., Atlanta, Hunter, Maclean, Exley & Dunn, Christopher W. Phillips, Savannah, Arnall, Golden & Gregory, Edward A. Marshall, Scott E. Taylor, Christopher K. Withers, Atlanta, for appellees.

Dax Eric Lopez, for Brock Built, LLC.

RUFFIN, Presiding Judge.

This case arises out of the proposed redevelopment of Perry Homes, a public housing facility managed by the Atlanta Housing Authority ("AHA"). In order to bid on the project, Perry Golf Course Development, LLC and two other companies, Brock Built, LLC and Columbia Residential, LLC, formed a limited liability company, Perry Homes Redevelopment, LLC ("PHR"). PHR and AHA eventually entered into a Revitalization Agreement for the property. After various disputes, Brock Built and Columbia assumed control of PHR and entered into a Master Plan Revision with AHA that eliminated the golf course feature of the redevelopment plan, to the alleged detriment of Perry Golf. Perry Golf brought an action against AHA, Brock Built, and Columbia for specific performance, breach of fiduciary duty, defamation, breach of contract, quantum meruit, tortious interference, punitive damages, and attorney fees, and filed a notice of lis pendens against the property. Brock Built counterclaimed against Perry Golf and its controlling member, Chip Drury, and brought a third-party claim against Drury and various entities in which he had an interest. The trial court dismissed all claims among the parties. Perry Golf and Brock Built appeal and, for reasons that follow, we affirm in part and reverse in part.

On appeal from a grant of judgment on the pleadings, we conduct a de novo review of the trial court's order.1 We must determine "whether the undisputed facts appearing from the pleadings entitle the movant to judgment as a matter of law. All well-pleaded material allegations by the nonmovant are taken as true, and all denials by the movant are taken as false. But the trial court need not adopt a party's legal conclusions based on these facts."2 Accordingly, a motion for judgment on the pleadings "should be granted only where the pleadings disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts."3

Case No. A08A1231

1. The trial court dismissed Perry Golf's claims for specific performance against AHA and Brock Built because it found that Perry Golf was neither a party to nor a third-party beneficiary of the Revitalization Agreement between PHR and AHA, and thus could not require specific performance of the contract's terms. Perry Golf argues that this was error because "the pleadings below do not definitively foreclose Perry Golf's ability to show, through evidence produced during discovery, that it was an express and intended third-party beneficiary under the Revitalization Agreement."4 But the intent to create a third-party beneficiary must appear on the face of a contract.5 "In order for a third party to have standing to enforce a contract[,] it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient."6 Because a third-party beneficiary may be created only by the express terms of the contract, a court does not generally consider parol evidence in its analysis.7

Perry Golf bases its claim that it is a third-party beneficiary of the Revitalization Agreement on the following contractual language:

AHA and [PHR] or applicable Owner Entity will enter into a definitive ground lease agreement upon [PHR] or the applicable Owner Entity obtaining a commitment (e.g. City of Atlanta Council approval, sales contracts, etc.) from owners of Off-Site land sufficient for construction of the 18-hole golf course (the "Golf Course Ground Lease"). AHA will use good faith efforts to support [PHR's] or applicable Owner Entity's efforts and applications for zoning approvals and permits, as needed. The Golf Course Ground Lease will be effective on the date that it is signed. The Golf Course Ground Lease will provide, in part, that ... the Owner Entity shall have the option to purchase the AHA land included on the golf course....

Perry Golf asserts that it can prove through extrinsic evidence that it is the "Owner Entity" referred to in this portion of the Revitalization Agreement. The only definition of "Owner Entity" in the Revitalization Agreement, however, relates to the On-Site Multifamily Rental Units phase, where the Revitalization Agreement provides for an Owner Entity made up of a general partner and a limited partner. The general partner is to be a Georgia limited partnership or limited liability company formed by PHR and the limited partner is to be AHA or its nonprofit affiliate. PHR "agrees, in cooperation with AHA, to form a Georgia limited partnership or similar entity (the `Owner Entity') which will own the improvements which, when completed, will constitute the improvements associated with that phase...."

Even the most generous construction of the Revitalization Agreement does not support a finding that it was clearly intended to benefit Perry Golf. First, while Perry Golf contends that it was unquestionably the Owner Entity that would enter into the Golf Course Ground Lease, this conclusion is inconsistent both with the definition of Owner Entity found elsewhere in the contract and with the way in which the component members of PHR were referred to in the Revitalization Agreement. In the Revitalization Agreement, Perry Golf, Brock Built, and Columbia are referred to as "members" of PHR. At best, Perry Golf may have hoped or planned to become the Owner Entity; but the Revitalization Agreement does not indicate that it was the Owner Entity. Second, even if Perry Golf were the Owner Entity to whom the Revitalization Agreement referred, the contract does not reflect that it was intended to benefit the Owner Entity. The stated purpose of the Revitalization Agreement was "to foster innovative and comprehensive approaches to the problems of severely distressed public housing developments and their residents." It contemplated changes to the contract to achieve this goal, and, indeed, provided that under certain circumstances there would be a modified golf course or no golf course at all. Accordingly, the Revitalization Agreement did not clearly indicate that Perry Golf was an intended third-party beneficiary, and we affirm the trial court's dismissal on this basis.8

2. Perry Golf argues that the trial court erred in dismissing its third-party beneficiary claim for breach of contract against AHA. For the reasons stated in Division 1, we find no error.

3. Perry Golf contends that the trial court erred in dismissing its claim against AHA for tortious interference with its contractual relationship with the other members of PHR. Perry Golf alleges that "AHA directly and purposefully interfered with the fiduciary duties owed by Brock Built and Columbia, including the duty of loyalty." A tortious interference claim requires that Perry Golf allege:

(1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or third part[y] to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the defendant's tortious conduct proximately caused damage to the plaintiff.9

But only "a stranger to both the contract at issue and the business relationship giving rise to and underpinning the contract" may be liable for tortious interference.10 The trial court found that AHA "is not a stranger to the fiduciary relationship it is accused of violating" and dismissed the claim. We agree.

Our Supreme Court has stated that "all parties to an interwoven contractual arrangement are not liable for tortious interference with any of the contracts or business relationships."11 Such is the case here. As pled by Perry Golf, "PHR was formed for the sole purpose of bidding for and carrying out the Perry Homes project with the AHA." The wrongful conduct in which AHA is alleged to have participated with Brock Built and Columbia—such as colluding to alter the structure of the Revitalization Agreement, requesting that the Atlanta Development Authority not approve a lease related to the golf course, and approving revisions to the master plan that were contrary to the Revitalization Agreement—are all directly related to the "interwoven contractual arrangement" for redeveloping Perry Homes. Therefore, as a matter of law, AHA was not a stranger to the relationship among the partners in PHR and cannot be liable for tortious interference with that relationship.12 "Because the complaint reveals with certainty that [defendant] was not a stranger to the [contract], the trial court properly dismissed [plaintiff's] claim based on tortious interference with contract."13

4. Perry Golf contends that the trial court erred in dismissing its claim for breach of an oral contract against Brock Built. Perry Golf asserts that the three members of PHR entered into an oral agreement it refers to as the "Component Agreement," which provided, among other things, that Brock Built and Columbia would finance the golf course to be built by Perry Golf "out of the sales proceeds from the Single-Family Component [built by Brock Built] and an up-front payment of Three Million ($3,000,000) Dollars from Columbia" and that the Revitalization Agreement would "under any and all circumstances"...

To continue reading

Request your trial
44 cases
  • TMX Fin., LLC v. Goldsmith
    • United States
    • Georgia Court of Appeals
    • September 12, 2019
    ...of the amended complaint sufficient to support a civil conspiracy claim. See Perry Golf Course Dev. v. Housing Auth. of the City of Atlanta , 294 Ga. App. 387, 398 (8) (d), 670 S.E.2d 171 (2008) (plaintiff stated claim for conspiracy to breach fiduciary duty based on allegations that defend......
  • U.S. Capital Funding VI, Ltd v. Patterson Bankshares, Inc.
    • United States
    • U.S. District Court — Southern District of Georgia
    • September 30, 2015
    ...interference [with the contract or the relationship]." Id. (alterations in original) (quoting Perry Golf Course Dev., LLC v. Housing Auth. of Atlanta , 294 Ga.App. 387, 670 S.E.2d 171 (2008), and Atlanta Mkt. Ctr. Mgmt., Co. , 503 S.E.2d at 278 ). Thus, while a third party is not necessaril......
  • Mayorga v. Benton
    • United States
    • Georgia Court of Appeals
    • July 1, 2022
    ... ... City of ... Atlanta , 324 Ga.App. 659 (751 S.E.2d 469) (2013) ... omitted.) Perry Golf Course Dev. v. Housing Auth. of City ... ...
  • The B & F Sys. Inc. v. Leblanc
    • United States
    • U.S. District Court — Middle District of Georgia
    • September 14, 2011
    ...be based on a breach of a contract or on hindering the performance of contractual duties. Perry Golf Course Dev., LLC v. Hous. Auth. of City of Atlanta, 294 Ga. App. 387, 397, 670 S.E.2d 171 (2008). The Court agrees with B & F that DSI and PMDJ are strangers to the MIDA. The fact that non-s......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT