Yates v. Dublin Sir Shop, Inc.
| Decision Date | 19 March 2003 |
| Docket Number | No. A02A1891.,A02A1891. |
| Citation | 579 S.E.2d 796,260 Ga. App. 369 |
| Parties | YATES et al. v. DUBLIN SIR SHOP, INC. et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Ford & Barnhart, James L. Ford, Atlanta, for appellants.
Lewis & King, Francis M. Lewis, Dublin, Hilbun & Helton, John F. Helton, for appellees.
Dublin Sir Shop, Inc. and William and Jewel Flanders brought this action against N. L. Yates, Jr. and Dennis Todd Yates after a dispute arose concerning the interpretation of certain documents executed in connection with the development of a shopping center in which all the parties have an interest. After a bench trial, the trial court entered judgment in favor of Dublin Sir Shop and the Flanderses. The Yateses appeal following the denial of their motion for new trial. They raise three issues, contending that the trial court improperly construed an unambiguous contract; erred in failing to grant their motion for new trial because of a conflict of interest on the part of the partner of appellees' counsel; and erred by engaging in ex parte communication with a witness after the close of evidence. We are not persuaded of the merit of any of these contentions, and we affirm the judgment.
The record shows that N. L. Yates, Jr. (Yates) and James Hilburn originally owned the property in issue. Intending to build a shopping center on the parcel, on April 18, 1996, they executed a document entitled, "Declaration of Cross Easements and Covenants." The declaration, in relevant part, provides as follows:
1.
Common Area
...
3.
Each owner of the property shall pay a proportional part of the costs of maintenance, use, and operation of the common area as the square footage of the building of such owner on the property bears to the total square footage of the retail buildings on the property.
After recording the declaration, Yates and Hilburn conveyed portions of the shopping center property to appellees. The parties then constructed the shopping center together. The Flanderses opened a Christian book store, the Dublin Sir Shop opened a men's clothing shop, and Yates and Hilburn leased a portion of their building to a women's clothing store. Hilburn later sold his interest in the center to Yates's son, Dennis Todd Yates. Part of the Yateses' building remained vacant for a number of months, and in December 1997, the Yateses leased that space to the Department of Human Resources—Rehabilitation Services Division for office space. Appellees objected, maintaining that the declaration restricted the property to retail use and asserting other objections as well.1 When this dispute could not be resolved, they filed this action.
1. In support of their suit, appellees argued that the use of the word "retail" in the declaration's preamble, as well as the use of the word "retail" twice in paragraph 3, clearly shows the owners/developers' intention to restrict the use of the property to retail space and prohibits leasing any space for office purposes. The trial court agreed with appellees, finding that the declaration clearly shows that the intent of the parties was to restrict the use of the property to retail space and that finding the intent of the parties and enforcing it is the cardinal rule of contract construction.
The Yateses contend that no construction was necessary because the contract is clear and unambiguous and does not include a fifth covenant restricting use of the property to retail establishments.
We do not agree with appellants that the declaration is perfectly clear. Because the document was written in contemplation of developing a retail shopping center, it includes language referring to that intent. But the document is silent as to whether that is the only permissible use of the property. It is therefore ambiguous on this point. The trial court correctly resorted to the principles and rules of contract construction to resolve this ambiguity.
It is true that the declaration is silent as to any restrictions upon use; if a restriction exists, it would have to be found by implication, which is not favored. Sissel v. Smith, 242 Ga. 595, 596(2), 250 S.E.2d 463 (1978). Accord Holbrook v. Davison, 258 Ga. 844, 845(1), 375 S.E.2d 840 (1989). But if the intent of the parties "is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction." OCGA § 13-2-3.
Balancing the bias against finding restrictions by implication against the "cardinal rule of contract construction"—ascertaining the intent of the parties, we find that the trial court correctly gave the cardinal rule paramount importance. The intent of the parties is clearly expressed. They intended for the shopping center to be used for retail sales, not offices. This intent is easily discernible in the first cross-easement and is explicit in the preamble. The trial court did not err in so construing the declaration.
2. The Yateses next argue that the trial court should have granted them a new trial because King, an attorney who had represented them on various other matters formed a partnership with appellees' attorney during the pendency of this action. It is undisputed, however, that King informed the Yateses that he was forming a partnership with appellees' counsel approximately two years before this case went to trial and that King represented the Yateses only on other matters, on a He testified that he never had substantive discussions regarding this case with the Yateses. Anytime the subject...
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