White v. Kaminsky
| Decision Date | 14 December 2004 |
| Docket Number | No. A04A2111.,A04A2111. |
| Citation | 271 Ga. App. 719,610 S.E.2d 542 |
| Parties | WHITE v. KAMINSKY. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Larry A. Ballew, Cumming, for Appellant.
Holland & Knight, Gregory J. Digel, Fred R. Slotkin, Laurie W. Daniel, Weinstock & Scavo, Louis R. Cohan, Atlanta, for appellee.
In this case involving the construction of restrictive covenants in a contract, Dewey C. White appeals, arguing that the trial court erred in granting summary judgment to Nathan H. Popky d/b/a Pop's Wine & Spirits Company, LLC, and Allen D. Kaminsky (the "Appellees") because (1) the contract provision at issue is not ambiguous, and (2) even if there were an ambiguity, the trial court should have applied rules of contract construction to resolve the ambiguity. We agree that the trial court failed to properly apply the rules of contract construction to resolve the ambiguity, and reverse.
Summary judgment is appropriate under OCGA § 9-11-56 when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We apply a de novo standard of appellate review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.
(Citation and punctuation omitted.) Vaughn, Coltrane & Assoc. v. Van Horn Constr.1
White developed a business park called the Paddocks in Forsyth County. Appellee Kaminsky owns property in the Paddocks upon which co-Appellee Popsky owns and operates Pops' Wine & Spirits.
The Paddocks is subject to a Declaration of Covenants, Conditions, Restrictions and Easements (the "Covenants"). The Covenants establish and provide for an Architectural Review Committee (the "Committee"), which has sole authority to approve and regulate the design and construction of all improvements within the Paddocks. Under the Covenants, no sign may be erected in the Paddocks without the approval of the Committee.
In November 2002, Appellees, without securing approval from the Committee, began construction of outdoor signs on their property. In December 2002, White noticed the construction of the signs and informed the Appellees that they would have to stop construction of the signs until they were approved by the Committee. Section 2.04 of the Covenants, the provision at issue in this case, provides that:
if the Committee fails either to approve or to disapprove an Owner's plans and specifications within thirty (30) days after such plans and specifications have been submitted to it (provided that all required information has been submitted), it shall be conclusively presumed that said plans and specifications have been approved, subject, however, to the conditions, covenants, restrictions and reservations contained elsewhere in this Declaration. The Committee shall notify the Owner in writing upon receipt of all required plans, specifications and other information and the thirty (30) day period shall commence on the date of such notification.
The Appellees submitted their plans for the signs on April 4, 2003. On April 25, 2003, the Committee acknowledged the receipt and completeness of the April 4 submission. On May 24, 2003, the Committee denied the Appellees' request for the signs and threatened to remove the signs if the Appellees did not do so within 30 days.
In the ensuing litigation, the Appellees contended that the two sentences of Section 2.04 are in conflict, with the first sentence setting the deadline for the Committee's decision on plan submissions as being 30 days after submission of plans, and the other sentence setting the deadline as being 30 days after the Committee notifies the owner that the plans have been received and are complete. Appellees argued that because of the ambiguity, the contract provision must be construed against White, the drafter of the provision. The trial court agreed and granted the Appellees' motion for summary judgment. On appeal, White argues that the terms of the contract are clear and unambiguous, and that, even if there were an ambiguity in Section 2.04, the court should have resolved the ambiguity by applying rules of contract construction.
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