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Pennington v. Gwinnett County

Court of Appeals of Georgia

October 9, 2014

PENNINGTON et al.
v.
GWINNETT COUNTY

Inverse condemnation. Gwinnett Superior Court. Before Judge Conner.

Larry E. Stewart, for appellants.

M. Van Stephens II, J. Brooke Savage, for appellee.

McFADDEN, Judge. Andrews, P. J., and Ray, J., concur.

OPINION

McFadden, Judge.

Steve and Brenda Pennington appeal the trial court's grant of summary judgment to Gwinnett County in the Penningtons' action seeking compensation for the loss of a business opportunity. The Penningtons argue tat the county's interference scuttled their deal with T-Mobile South LLC under which T-Mobile intended to lease a portion of their property for the installation of a cell phone tower. They argue that this interference resulted in a taking and amounted to an inverse condemnation. But because the evidence is undisputed that the Penningtons merely had an option contract with T-Mobile

Page 861

and that T-Mobile decided not to exercise that option, as was its right, the Penningtons have not shown a taking or an inverse condemnation. We therefore affirm.

A trial court may grant summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). " We review the grant or denial of a motion for summary judgment de novo, and we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant." City of Tybee Island v. Live Oak Group, 324 Ga.App. 476, 477 (751 S.E.2d 123) (2013) (citation omitted).

1. Facts.

Viewed in the light most favorable to the Penningtons as nonmovants, the record shows that on May 21, 2008, the Penningtons entered a contract with T-Mobile granting T-Mobile the option to [329 Ga.App. 256] lease a portion of the Penningtons' property for the installation of a cell phone tower. The contract was entitled " Site Lease with Option." The contract specified that in exchange for T-Mobile's payment of $1,000, the Penningtons granted T-Mobile " an option to lease" a portion of their property, that this option was " for an initial term of twelve (12) months," and that T-Mobile could extend the option period by an additional 12 months " upon written notice and payment" of an additional $1,000. It provided that T-Mobile " may exercise the Option" by notifying the Penningtons in writing and that " [i]f [T-Mobile] exercise[d] the Option, then [the Penningtons] [t]hereby lease[d] to [T-Mobile] that portion of the Property sufficient for placement of the Antenna Facilities... ." A separate document, entitled " Owner Authorization Agreement," was signed by Brenda Pennington, granted T-Mobile the right to enter the Penningtons' property, and provided that " EACH PARTY ACKNOWLEDGES THAT THE OTHER HAS MADE NO REPRESENTATIONS OR COMMITMENTS THAT A LEASE AGREEMENT CONCERNING THE PROPERTY WILL BE ENTERED INTO IN THE FUTURE." (Emphasis in original.) T-Mobile extended the option for a total of three years, each time paying additional compensation to the Penningtons.

Within a month of entering the Site Lease with Option, T-Mobile filed with the Gwinnett County Department of Planning and Development an application to place the cell tower on the Penningtons' property. At T-Mobile's request, consideration of the application was tabled more than 20 times, until April 26, 2011, when the application was denied, also at T-Mobile's request. In the meantime, in April 2009, the county amended its policy to allow the placement of cell phone towers on county property, and on November 2, 2009, T-Mobile formally requested that Gwinnett County consider entering into a lease for placement of the tower at a county park near the Penningtons' property. T-Mobile and Gwinnett County entered such lease on January 25, 2011.

The Penningtons filed this lawsuit, alleging that Gwinnett County confiscated the value of their lease with T-Mobile, which constituted an improper taking by inverse condemnation. They also alleged that Gwinnett County tortiously interfered in their dealings with T-Mobile.

The trial court granted the county's motion for summary judgment. The court ruled that sovereign immunity barred the Penningtons' tortious interference claim against the county; that the Penningtons' inverse condemnation claim failed on the merits because they had no compensable interest in the lease part of the option contract, since it was within T-Mobile's discretion whether or not to exercise the option; that because T-Mobile chose not to exercise the option, the Penningtons could not show that they had ...


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