Properties v. Nichols

Citation700 S.E.2d 848,305 Ga.App. 734
Decision Date30 August 2010
Docket NumberA10A1031.,A10A1030,No. A10A1029,A10A1029
PartiesPARRIS PROPERTIES, LLC et al. v. NICHOLS et al. (two cases). Nichols et al. v. Parris Properties, LLC et al.
CourtUnited States Court of Appeals (Georgia)

OPINION TEXT STARTS HERE

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Kenneth B. Hodges III, Albany, Simon Weinstein, Ken Parris, for appellants.

Gibson, Deal, Fletcher & Durham, James B. Deal, Michael R. Dunham, Norcross, for appellees.

McMURRAY, Senior Appellate Judge.

Kathy and Dennis Nichols own property that is burdened by an underground sewer line easement that benefits the adjacent property owned by Parris Properties, LLC. The Nicholses brought this action against Parris Properties and its principal, Kenneth Parris (collectively, the “Parris Defendants), to prevent the Parris Defendants from replacing the existing sewer pipe with a larger one. The Parris Defendants answered and counterclaimed for conversion based upon the Nicholses' disposal of certain construction materials owned by Parris Properties.

The case was tried before a jury which found, among other things, that replacement of the existing sewer pipeline with a larger diameter pipe would not constitute a substantial change in the easement, and that the Nicholses were liable for conversion. The trial court subsequently entered its “Final Judgment, Declaratory Judgment, and Order on Permanent Injunction” that included a provision prohibiting the Parris Defendants from making any permanent changes to the surface of the Nicholses' property in replacing the sewer pipe. The trial court also declined to award costs to the Parris Defendants. The Parris Defendants then filed a motion requesting that the trial court amend the final judgment to remove the provision prohibiting surface alteration and to make additional findings related to the easement, which the trial court denied.

In Case No. A10A1031, the Nicholses contend that the trial court erred by denying their motions for a directed verdict and for judgment notwithstanding the verdict (“j.n.o.v.”) pertaining to the scope of the easement and the Parris Defendants' counterclaim for conversion. In Case Nos. A10A1029 and A10A1030, the Parris Defendants contend that the trial court erred by including the provision prohibiting surface alteration in the judgment, and erred by declining to amend the judgment or award them court costs as the prevailing parties.

For the reasons discussed below, we affirm the trial court's denial of the Nicholses' motions for a directed verdict and for j.n.o.v.; reverse the judgment to the extent it prohibits surface alteration; reverse in part the trial court's denial of the Parris Defendants' motion to amend the judgment; vacate the trial court's order declining to award costs to the Parris Defendants; and remand for further action consistent with this opinion.

Case No. A10A1031

1. The Nicholses contend that the trial court erred in denying their motions for a directed verdict and for j.n.o.v. pertaining to whether enlargement of the sewer pipe fell within the scope of the easement. On appeal from the denial of a motion for a directed verdict or for j.n.o.v., we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury's verdict. See McClung v. Atlanta Real Estate Acquisitions, LLC, 282 Ga.App. 759, 759-760, 639 S.E.2d 331 (2006). However, [t]he construction, interpretation and legal effect of a contract such as an easement is an issue of law,” which is subject to de novo review. (Footnote omitted.) Savannah Jaycees Foundation v. Gottlieb, 273 Ga.App. 374, 376(1), 615 S.E.2d 226 (2005). See Reynolds Properties v. Bickelmann, 300 Ga.App. 484, 487, 685 S.E.2d 450 (2009). Guided by these principles, we turn to the record in the present case.

The Sewer Line Easement. At the heart of these companion appeals is an express easement originally executed and recorded in 1952 by C.L. Bradford, as grantor, and William R. Bentley, as grantee. It is undisputed that the Nicholses are the successors in title to Bradford, and that Parris Properties is the successor in title to Bentley.

The easement provides in relevant part:

That the said C.L. Bradford does give, grant and convey to William R. Bentley a permanent easement for the construction of a sewer from the property of William R. Bentley to the trunk sewer on Vermont Road. The said sewer is to be constructed along the Southeastern line of the said C.L. Bradford and is to run along the hedge of said Southeastern line of C.L. Bradford one hundred and forty[-]seven and six-tenths (147.6) feet from the property of the said William R. Bentley to Vermont Road.
The said William R. Bentley agrees that he will bear the total cost of the construction of the said sewer and any cost of the maintenance and repair of the same, for which he binds himself, his heirs and assigns, and that the said sewer will be placed beneath the surface of the said property of C.L. Bradford, and that the said William R. Bentley will fill in and restore the property of the said C.L. Bradford to its present condition and will do no damage to the said property of the said C.L. Bradford.

The property burdened by the sewer line easement has a single family residence on it and is part of a neighborhood listed on the National Register of Historic Homes. The Nicholses acquired the property and currently live in the residence.

The property that benefits from the sewer line easement is adjacent to the Nicholses' property and has three rental homes located on it. The property has dual zoning; the front portion of the property is zoned multifamily, and the rear portion is zoned single family. Parris Properties acquired the property and wishes to develop it by building a number of townhomes.

Installation of the Sewer Pipeline. At or about the time the easement was granted in 1952, a sewer pipe was placed in the ground of what is now the Nicholses' property. It was a concrete pipe with an inside diameter of four inches and an outside diameter of six inches. At the time the sewer pipe was placed in the ground, the City of Atlanta did not require that the pipeline have any surface structures installed as part of the line, and so the pipeline could be located wholly beneath the surface of the property.

A four-inch sewer pipe is typical of a service connection for a single family residence. 1 In contrast, the City of Atlanta generally requires an eight-inch sewer pipe for multifamily residential units, such as townhomes, although in some circumstances a six-inch sewer pipe may be permitted. The City of Atlanta now requires installation of a manhole to provide access to eight-inch sewer pipes and installation of a cleanout to provide access to six-inch sewer pipes. As explained by the Director of Watershed Management for the City of Atlanta, a cleanout is “a place where you can insert what plumbers call a snake into the line, which is a long wire or a cable[ ] ... that can turn and push and cut things that might plug up the pipe.” Manholes and cleanouts run from the pipeline to the surface and are “visible from the ground.”

The Proposed Replacement of the Sewer Pipeline. In 2005, the Nicholses began a project for the renovation and expansion of their home, and a subcontractor working on the project damaged a segment of the existing four-inch concrete sewer pipe. The Nicholses replaced the segment with PVC pipe of the same size. As required by the City of Atlanta, the Nicholses had a cleanout installed on the surface of their property as part of the repair work.

That same year, Parris Properties hired a structural engineer to devise plans for replacing the entire existing sewer pipeline with either a six-inch or eight-inch PVC pipe in order to accommodate the multifamily residential units that Parris Properties wanted to construct on its property. Pursuant to City of Atlanta requirements, replacement with a six-inch pipe would necessitate the installation of a cleanout with a six-inch diameter on the Nicholses' property; replacement with an eight-inch pipe would necessitate the installation of a manhole on their property.

Parris Properties sought and obtained building permits from the City of Atlanta to replace the existing sewer pipeline with an eight-inch pipe. Before the replacement project began, however, the Nicholses filed the present action against the Parris Defendants to prevent the project from happening. 2

A jury trial ensued in which the central issue was whether increasing the size of the sewer pipeline to a six-inch or eight-inch pipe would constitute a substantial change in the easement requiring the Nicholses' consent. The Nicholses moved for a directed verdict on the ground that replacement with a larger diameter pipe was beyond the scope of the easement as a matter of law, which the trial court denied. The jury thereafter found that replacement of the sewer pipeline with either a six-inch or eight-inch pipe would not constitute a substantial change. The Nicholses moved for j.n.o.v., which the trial court denied.

(a) The Nicholses contend that they were entitled to judgment as a matter of law because the unambiguous language of the easement does not authorize Parris Properties to replace a functioning sewer pipeline. The Nicholses emphasize that the easement provides for the “construction,” “repair,” and “maintenance” of the sewer line easement, words they contend do not encompass the “replacement” of the existing sewer pipeline, which they maintain is functioning properly. We are unpersuaded.

In construing the language of an express easement, we apply the rules of contract construction. See Municipal Elec. Auth. of Ga. v. Gold-Arrow Farms, Inc., 276 Ga.App. 862, 866(1), 625 S.E.2d 57 (2005). The cardinal rule of contract construction is to ascertain the parties' intent, and [w]here the contract terms are clear and unambiguous, the court...

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