Postnieks v. Chick-Fil-a, Inc.

• Decision Date: 10 May 2007
• Docket Number: No. A07A0270.,A07A0270.
• Citation: 647 S.E.2d 281
• Parties: POSTNIEKS et al. v. CHICK-FIL-A, INC. et al.
• Court: Georgia Court of Appeals

647 S.E.2d 281

POSTNIEKS et al. v. CHICK-FIL-A, INC. et al.

No. A07A0270.

Court of Appeals of Georgia.

May 10, 2007.

Reconsideration Denied June 7, 2007.

Scheer, Jackson, Cohen & Schoenberg, Brant Jackson Jr., Atlanta, for appellants.

Schulten, Ward & Turner, Kevin L. Ward, Joseph L. Kelly, Hunton & Williams, Matthew J. Calvert, Ashley F. Cummings, Atlanta, for appellees.

BLACKBURN, Presiding Judge.

The trustees of two testamentary trusts filed this declaratory judgment action seeking to enjoin defendant Chick-fil-A's use of a curb cut and driveway located on property owned by the trusts and bordering property currently leased to Chick-fil-A. The trial court granted Chick-fil-A's motion for summary judgment, finding that Chick-fil-A had acquired an irrevocable license to use the curb cut and driveway, and the trustees now appeal. We disagree that Chick-fil-A acquired an irrevocable license; however, because the trustees expressly dedicated the curb cut to public use, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c); Britt v. Kelly & Picerne, Inc.¹ A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp.²

So construed, the evidence shows that the trusts own property located at the southeast corner of the intersection of Northside Parkway and West Paces Ferry Road in Atlanta. The property was purchased by the trustees' father from Charles Loridans in 1955 and shortly thereafter was developed into the West Paces Ferry Shopping Center. As part of that sale, the trustees' father conveyed to Loridans a 20-foot easement (Loridans easement) along the southern boundary of the property, which provided access from the remainder of Loridans's property to Northside Parkway.

Abutting the southern boundary of the property purchased by the trustees' father and also adjacent to Northside Parkway is property owned by Donald and Ivon Rolader. The Rolader property is bounded on the west by Northside Parkway and on the east and south by the remainder of the Loridans property. The property was previously leased to Union Oil Company, which operated a gas station on the site, but since 1994, the Rolader property has been leased to Chick-fil-A, which currently operates a free-standing Chick-fil-A fast-food restaurant there.

In 1976, the Loridans property to the east and south of the Rolader property was subleased to a developer, who at that time developed what is now known as the Parkway Place Shopping Center.³ That same year, the developer subleased part of the Rolader property from the prime lessee (Union Oil) in order to create a driveway, which traversed that property and thus connected the Parkway Place Shopping Center to the Loridans easement. At this time, the developer also approached the trustees, who were now managing the trusts' property, and asked for their permission to create a curb cut-through ("curb cut") on the southern boundary of their property bordering the Loridans easement and north of the Rolader property to allow traffic to more easily flow between the two shopping centers. The trustees gave the developer their express permission, and the curb cut was created that day. Since the creation of the curb cut in 1976, public traffic has moved freely between the trustees' shopping center, the Parkway Place Shopping Center, and the Rolader/Chick-fil-A property.

Shortly after Chick-fil-A began leasing the Rolader property in 1994, a Chick-fil-A representative contacted one of the trustees to request permission to continue the use of the curb cut. The trustees never expressly responded negatively or affirmatively to Chick-fil-A's request. Despite not receiving the trustees' express approval, Chick-fil-A designed its restaurant's drive-through lanes in a manner which utilized the curb cut as a means of entry and exit; Chick-fil-A erected signs, re-paved the parking lot, and added pavement markings directing traffic flow. Chick-fil-A also began landscaping the area surrounding the curb cut and installed a storm-water drain at the northwest corner of its own property, which benefitted the trustees' property by reducing standing water in the area where the Loridans easement intersects with Northside Parkway. Additionally, shortly after it entered into its lease, Chick-fil-A entered into a reciprocal easement agreement with the lessees of the Parkway Place Shopping Center, which allowed for the free flow of pedestrian and vehicular traffic between the restaurant and the Parkway Place Shopping Center and also provided patrons of the latter with easier access to the trustees' shopping center.

From 1994 to 2002, pedestrian and vehicular traffic moved fairly freely from the Parkway Place Shopping Center, across the Chick-fil-A site, to the trustees' shopping center and vice versa. In late 2002, however, the trustees decided that traffic between Chick-fil-A and their shopping center needed to be controlled. Consequently, the trustees contacted Chick-fil-A and informed it that any further use of the curb cut on the trustees' property by Chick-fil-A customers would be considered trespassing unless Chick-fil-A agreed to pay a rental fee. When an agreement could not be reached, the trustees filed a petition for declaratory judgment and injunctive relief, seeking to prevent Chick-fil-A customers from using the curb cut. The parties filed cross-motions for summary judgment, and after a hearing, the trial court granted Chick-fil-A summary judgment, finding that it had acquired an irrevocable license to use the curb cut. This appeal followed.

1. The trustees contend that the trial court erred in granting Chick-fil-A summary judgment on the ground that it had acquired an irrevocable license to use the curb cut. Specifically, the trustees argue that they never granted Chick-fil-A an express license to use the curb cut.

OCGA § 44-9-4 provides that "[a] parol license to use another's land is revocable at any time if its revocation does no harm to the person to whom it has been granted. A parol license is not revocable when the licensee has acted pursuant thereto and in so doing has incurred expense; in such a case, it becomes an easement running with the land." McCorkle v. Morgan.⁴ See Blake v. RGL Assoc.⁵ The statute "is based on the principle that a license becomes an agreement for a valuable consideration, and the licensee a purchaser for value, where the enjoyment of the license must necessarily be preceded by the expenditure of money." (Emphasis in original.) McCorkle, supra, 268 Ga. at 731, 492 S.E.2d 891. However, under the statute, "[a] parol license is an express license." Berolzheimer v. Taylor.⁶ Thus, "the statute is operative only where there is an express oral license." Berolzheimer, supra, 230 Ga. at 600, 198 S.E.2d 301. See Jordan v. Coalson.⁷ Here, although the trustees acquiesced to Chick-fil-A's use of the curb cut for over eight years, the fact that the trustees never provided Chick-fil-A with express oral permission to do so is undisputed.

Despite the undisputed factual evidence that the trustees never provided Chick-fil-A with an express oral license, Chick-fil-A argues that the trustees are bound by a legal conclusion stated in a trustees' interrogatory response that the trustees' silence and inaction with regard to Chick-fil-A's request to use the curb cut "in essence granted [Chick-fil-A] a revocable license." This conclusory remark fails to say that the license was express, but even if it did, legal conclusions in interrogatory responses—unlike legal conclusions in responses to requests to admit—are not binding judicial admissions on the party responding to the interrogatory. See Wurlitzer Co. v. Watson.⁸

Thus, given the fact that the trustees did not give Chick-fil-A express oral consent to use the curb cut, Chick-fil-A was not granted a parol license and, at most, had an implied license, to which OCGA § 44-9-4 does not apply. See Berolzheimer, supra, 230 Ga. at 600, 198 S.E.2d 301. Accordingly, the trial court erred in granting summary judgment to Chick-fil-A on the ground that it had acquired an irrevocable license under OCGA § 44-9-4.

2. Nevertheless, we affirm the grant of summary judgment because it was right for another reason argued by Chick-fil-A on summary judgment and on appeal. See Theesfeld v. Image Electrolysis & etc. Care.⁹ See generally City of Gainesville v. Dodd.¹⁰ Specifically, we agree with Chick-fil-A's contention that the curb cut on the trustees' property has been dedicated to public use and cannot now be revoked.

OCGA § 44-5-230, the statute relevant to public dedication, provides that "[a]fter an owner dedicates land to public use either expressly or by his actions and the land is used by the public for such a length of time that accommodation of the public or private rights may be materially affected by interruption of the right to use such land, the owner may not afterwards appropriate the land to private purposes." "The requirements for dedication to public use are (1) an intention of the owner to dedicate and (2) acceptance of the dedication by the public." (Citation and punctuation omitted.) Cobb County v. Crew.¹¹ "There is no particular form of making a dedication. It may be done in writing, or by parol; or it may be inferred from the owner's acts, or implied, in certain cases, from long use." (Punctuation omitted.) Chatham Motorcycle Club v. Blount.¹² "[T]o complete a dedication of land to a public use, there must be not only an offer to dedicate, but also an acceptance, either express or implied, by the appropriate public authorities or by the general public." (Emphasis supplied.) Smith v. Gwinnett County.¹³ See also Smith v. State.¹⁴

(a) Express Offer of...