WS CE Resort Owner, LLC v. Holland

• Decision Date: 02 July 2021
• Docket Number: A21A0329
• Court: Georgia Court of Appeals
• Parties: WS CE RESORT OWNER, LLC v. HOLLAND et al.

360 Ga.App. 720

860 S.E.2d 637

WS CE RESORT OWNER, LLC

v.HOLLAND et al.

A21A0329

Court of Appeals of Georgia.

July 2, 2021

Reconsideration Denied July 15, 2021

Certiorari Denied February 15, 2022

John O'Shea Sullivan, Julie Louise Sellers, Kevin Robert Stone, Atlanta, for Appellant.

Jeffrey Spencer Haymore, John EIwin Stell Jr., Winder, Julie Louise Sellers, Randolph Baxter Russell, for Appellee.

Miller, Presiding Judge.

This case involves a dispute between the operator of a golf course and the owners of property in a residential community regarding whether the property owners acquired an implied easement for the golf course. WS CE Resort Owner, LLC ("CE Owner"), the operator of the golf course, appeals from the trial court's denial of its motion for summary judgment and the grant of summary judgment and a permanent injunction to property owners Evelyn McCarthy and Thomas and Connie Holland ("the Plaintiffs"). On appeal, CE Owner argues that (1) the trial court erred in determining that the Plaintiffs acquired an implied easement in the golf course; (2) the trial court's order is too vague to be enforceable; and (3) the trial court erred in awarding attorney fees to the Plaintiffs. We conclude that, although the trial court properly determined that an implied easement exists in the property and that it did not err by issuing an injunction, the trial court erred by granting the Plaintiffs summary judgment on their claim for attorney fees. We therefore affirm in part and reverse in part.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to a judgment as a matter of law. When a plaintiff moves for summary judgment, he has the burden of establishing the absence or non-existence of any defense raised by the defendant. When a defendant moves for summary judgment, he has the burden of either presenting evidence negating an essential element of the plaintiff's claims or establishing from the record an absence of evidence to support such claims. We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Because this opinion addresses cross-motions for summary judgment, we will construe the facts in favor of the nonmoving party as appropriate.

(Citation omitted.) Plantation at Bay Creek Homeowners Assn., Inc. v. Glasier , 349 Ga. App. 203, 204, 825 S.E.2d 542 (2019).

So viewed, the record shows that in the early 1990s, Fountainhead Development Inc. ("Fountainhead") owned and developed Chateau Elan, a "Planned Resort & Residential Community" in Braselton, Georgia. The community featured a winery, a hotel, three golf courses, an equestrian center, a tennis center, a conference center, and residential areas. The marketing materials for Chateau Elan stated that the community was developed in a method that was "backwards" from most resort communities because the golf courses, spa, tennis center, hotel, and conference center were developed before the residential areas. One of the residential areas, The Manor Homes, was situated next to one of the golf courses, the Par 3 Golf Course (hereinafter "Par 3 Course"), which was located behind the Manor Homes gate and featured homesites overlooking the golf course.¹ Fountainhead determined the pricing for each lot at The Manor Homes and provided all of the marketing materials to Chateau Elan Realty, which was the brokerage firm that listed and sold lots for Fountainhead. The Manor Homes subdivision had site premiums for some of the lots in varying amounts up to $15,000 depending on the lot's view and proximity to the Par 3 Course.² The plat for The Manor Homes subdivision³ was recorded in the Barrow County Superior Court records, and the area where the Par 3 Course is located on the plat is labeled "Fountainhead Development, Inc. (Golf Course)."⁴ Fountainhead also executed and recorded a "Declaration of Covenants, Conditions and Restrictions" in Barrow County and Gwinnett County for The Manor Homes properties that burdened each property with easements for golf activities for the golf course adjacent to the property.

Ben Harrison, a real estate agent for Chateau Elan Realty, was tasked with meeting with prospective buyers visiting the property and giving them a presentation of the property along with a kit of information that provided an overview of the community and the different floorplans available for construction. According to Harrison, Fountainhead began the construction and development of the Par 3 Course at the time he started working for Chateau Elan in 1993. When meeting with prospective buyers, Harrison said that he did not tell them where a golf course might be located in the future, but he would instead stand on the lots with prospects looking at existing views of the golf course. In 1996, Harrison met with John and Evelyn McCarthy about The Manor Homes development, and he gave them the master site plan and the marketing brochure for the community, both of which indicated that certain lots overlooked the Par 3 Course. Later that same year, John McCarthy purchased lot 4 at The Manor Homes because it was adjacent to the Par 3 Course, which he and his wife intended to use, and because it had a view of the golf course from the back of the property. According to Harrison, lot 4 was the only lot that the McCarthys desired to purchase, and a $15,000 site premium was included in the contract price because of the lot's proximity to, and view of, the golf course. The deed described the property by reference to the lot and the recorded subdivision plat, it included a map of the subdivision which depicted a golf course, and was recorded in the Gwinnett County real estate records. After moving onto the property, the McCarthys often played golf on the Par 3 Course, and they received a discount card from Fountainhead to use for the Par 3 Course. According to Evelyn McCarthy, The Manor Homes was presented to her and John McCarthy as a golf community next to the Par 3 Course, and she and her husband relied upon that representation when deciding to purchase their property. Title to the property later transferred to Evelyn McCarthy after John McCarthy passed away in 2008.

Harrison also met with Thomas and Connie Holland in 1996, who were interested in purchasing property at The Manor Homes because they wanted to live in a golf course community. Harrison gave the Hollands the marketing brochure and the Master Plan, and the Hollands ultimately purchased lot 10 at The Manor Homes because they believed that they were purchasing a lot in a golf course community. Specifically, according to Thomas Holland, Harrison and a Fountainhead executive presented The Manor Homes as a golf course community adjacent to the Par 3 golf course. Thomas Holland explained that the Par 3 Course was vital to the concept of the development, that he and his wife were drawn to the development because of the Par 3 Course, and that he and his wife would not have purchased property at the development without the Par 3 Course. Thomas Holland also averred that he and his wife paid a $15,000 site premium for their lot and that the site premium was "in significant part" due to the lot's proximity to the Par 3 Course.

Fountainhead later transferred title to the Par 3 Course to Chateau Elan Resorts, LLC, which in turn transferred the title to CE Owner. According to CE Owner, the company spends more money operating the Par 3 Course each year than it receives in revenue for the golf course. For example, in 2019, CE Owner's expenses for operating the Par 3 Course exceeded its revenue by $74,000. Because of its financial losses, CE Owner sought to close the Par 3 course and develop it for new residential construction. To effect this plan, CE Owner applied for a rezoning of the property with the City of Braselton and the city granted the application in 2019.

The Plaintiffs filed suit against Chateau Elan Resorts, LLC and CE Owner, seeking injunctive relief, a declaratory judgment, and attorney fees under OCGA § 13-6-11.⁵ CE Owner subsequently filed a motion for summary judgment, arguing that, as the owner of the land, it has the right to use the land for any lawful purpose and that there was no legal basis to grant an injunction. It also argued that the Plaintiffs were not entitled to a declaratory judgment because (1) a declaratory judgment cannot compel a party to undertake any action; (2) there was no express easement or restrictive covenant that required the property to be operated and maintained as a golf course; and (3) there was no implied easement or restriction that required the property to be operated and maintained as a golf course. The Plaintiffs also filed a motion for summary judgment, arguing that an implied easement existed which restricted the property from being used for any purpose other than a golf course. Following a hearing, the trial court denied CE Owner's motion for summary judgment and granted the Plaintiffs’ motion for summary judgment as well as their request for an injunction. In granting summary judgment, the trial court determined that the Plaintiffs acquired an implied easement in the Par 3 Course because it was set apart for the Plaintiffs’ use and the Plaintiffs paid site premiums in connection with the purchases of their lots for the Par 3 Course. The Court also determined that the Plaintiffs acquired an implied easement because Fountainhead made oral assurances or representations to the Plaintiffs that the Par 3 Course would be used as a golf course. This appeal followed.

1. First, CE Owner argues that the trial court erred in its determination that the Plaintiffs acquired an implied easement for the Par 3 Course that restricts the land from being used for any purpose other than a golf course. After a close review of the record, we disagree and conclude that the trial court did not err in its determination that the Plaintiffs...