DOUBLE BRANCHES ASSOCIATION, INC. et al.
JONES et al
Water service. Greene Superior Court. Before Judge Prior.
M. Joseph Reitman, Jr., for appellants.
David G. Kopp, for appellees.
RAY, Judge. Andrews, P. J., and McFadden, J., concur.
Double Branches Association, Inc., a homeowners association of the Double Branches subdivision in Greene County, along with [331 Ga.App. 160] several of the subdivision's residents (collectively, the " Association" ), sued Double Branches Water, LLC, a private water company, and its past owners (collectively, " Double Branches Water" ) for alleged breaches of a 1991 Trust Indenture Water Services Agreement (the " Agreement" ) entered into between the developer of the Double Branches subdivision and Double Branches Water. The Association claimed that these breaches occurred when Double Branches Water added certain fees and raised the rates for water service to the subdivision's homes above the maximum amount allowed by the Agreement. Double Branches Water filed a motion for summary judgment and a petition for declaratory judgment. The trial court granted Double Branches Water's motion for summary judgment without making findings of fact or conclusions of law. Finding that the Agreement constituted a " covenant running with the land," the trial court granted the petition for declaratory judgment on the grounds that the terms of the Agreement were no longer enforceable under OCGA § 44-5-60. For the following reasons, we affirm.
Summary judgment is warranted if the pleadings and evidence " show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Punctuation and footnote omitted.) Calhoun, GA NG, LLC v. Century Bank, 320 Ga.App. 472, 472-473 (740 S.E.2d 210) (2013).
The record shows that in 1991, the developers of the Double Branches subdivision entered into a Trust Indenture/Water Services Agreement with Andrew Jones d/b/a Jones Water Systems, a private water supplier. The Agreement was for the purpose of providing water to the homes built in the Double Branches subdivision. The Agreement was then recorded in the deed book in the office of the Clerk of the Superior Court of Greene County.
Pertinently, the Agreement provides that " the benefits and obligations identified [in the Agreement] become an appurtenance to and run with the land described ... and inure to the benefit of the successors in title[.]" The Agreement notes that Double Branches Water constructed two wells and infrastructure related to providing private water service to the subdivision and that it " covenants and agrees to furnish water" to the homes " until the operation of said system is otherwise made available to the property by a municipality, or other governmental agency ... or public utility." In exchange for the " privilege and right" to use the water, lot owners " will be responsible [331 Ga.App. 161] for the installation, maintenance, and expense of their own water lines" as well as pay applicable fees. Additionally, the Agreement bound each lot owner to pay for water consumed on its premises as follows: " [Double Branches Water] shall have the right to ... charge a minimum rate for the first 3,000 gallons used per month based on the highest rate charged for such amounts by any municipality ... within a fifty (50) mile radius." It further provides that Double Branches Water has the right to adjust the minimum rate from " time to time," but that such rate should not exceed the highest amount charged by a municipality within a 50-mile radius. Finally, the Agreement provides that " this agreement shall constitute a restriction against private well systems."
The Complaint alleges that in 2012, Double Branches Water informed lot owners that the
monthly minimum rates would increase to $45, that there would be an additional monthly testing fee of $2.50, and that the rates for setup fees, late fees, and reconnection fees would be increased. The Complaint alleges that these changes violated the Agreement.
In its motion for summary judgment and petition for declaratory judgment, Double Branches Water argued, inter alia, that the Agreement constituted a restrictive covenant, and thus, it expired after 20 years because the homeowners failed to renew the covenant pursuant to former OCGA § 44-5-60 (d). The trial court granted relief in favor of Double Branches Water on the grounds that the Agreement constituted a " covenant running ...