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Licata v. 2685 Langford Parkway, LLC

Court of Appeals of Georgia, Fifth Division

February 23, 2017

LICATA et al.
v.
2685 LANGFORD PARKWAY, LLC

          DILLARD, P. J., REESE and BETHEL, JJ.

          Reese, Judge.

         James S. Licata and D. Ray Humphrey appeal from the denial of their motion for summary judgment and the grant of summary judgment in favor of 2685 Langford Parkway, LLC ("the LLC") and Ali Katoot, a representative of the LLC, in the appellants' action regarding their rights to a billboard, advertising revenue, and an easement on real property purchased by the LLC. For the reasons set forth, infra, we affirm the denial of summary judgment to Licata and Humphrey and reverse the grant of summary judgment to the LLC and Katoot.

         The undisputed evidence shows that, from approximately 1985 until 2011, R. Bogan Renfroe owned real property in Gwinnett County now known as 2685 Langford Parkway[1] (the "Property"). In 1998, during his ownership of the Property, Renfroe entered into an agreement with Sterling Outdoor, LLC ("Sterling"), allowing Sterling to erect and operate a billboard on the Property in exchange for 15 percent of any advertising revenue.

         Renfroe borrowed approximately $1.1 million and executed a security deed in 2009, pledging as collateral certain real property in Gwinnett County.[2] After Renfroe defaulted on the loan, the lender instituted foreclosure proceedings and thereafter sold the Property at public sale in 2011. The following year, the LLC purchased the Property.

         In March 2015, Licata and Humphrey filed a complaint against the LLC and Katoot. Licata and Humphrey, who alleged that they were the successors in interest of Sterling, sought declaratory and injunctive relief and damages for conversion and trespass with respect to a billboard and the advertising revenue therefrom.

         The trial court granted the appellees' motion for summary judgment and denied the appellants' motion for summary judgment. The court found that Sterling entered into an agreement whereby it would pay rent for the use of the property in an amount of 15 percent of the advertising revenue. This created a landlord-tenant relationship subject to termination without notice after the foreclosure. The trial court also rejected the appellants' claim of ownership in the billboard sign, which the court found had been sold with all fixtures upon foreclosure.

         On appeal from the grant or denial of summary judgment, we review the evidence de novo, construing all reasonable conclusions and inferences drawn from the evidence in the light most favorable to the nonmovant.[3] Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.[4]

[T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.[5]

         With these guiding principles in mind, we turn now to the appellants' specific claims of error.

         1. As an initial matter, we address the contention of the appellees, that the appellants lacked standing to bring the action.

         (a) The appellees state in their appellate brief that the trial court found that the appellants "had failed to prove that they were the successors of Sterling." The appellants reply that the issue is not properly before this Court because the trial court never ruled on it.

         In its summary judgment order, the trial court found that "[s]hort of their self-serving affidavits, [the appellants] ha[d] produced no documentary evidence of their ownership in the billboard sign." The trial court thus apparently concluded that the appellants had not established standing.

         It is unclear, however, to what extent the court based its grant of summary judgment on this conclusion. "[A] grant or denial of summary judgment must be affirmed if it is right for any reason."[6] Because the appellants had an opportunity to respond to the challenge to their standing below, [7] we will address this issue.

         (b) The appellees argue that the appellants failed to prove that they were successors of Sterling because the sole basis for their claim of ownership of the billboard was their "self-serving" affidavits. The appellants cite cases for the proposition that "'[a] self-serving conclusory affidavit not supported by fact or circumstances is insufficient to raise a genuine issue of material fact.'"[8]

         In his affidavit, Licata testified that he was an officer and controlling shareholder of Valiant Steel and Equipment, Inc. ("Valiant"), which furnished steel for Sterling's construction of the billboard in 1998. Sterling failed to pay Valiant the agreed-upon price of $25, 000 for the steel. In 1999, Licata formed Horizon Outdoor Advertising, Inc. ("Horizon") as its sole officer and shareholder and later became its sole member when Horizon became a limited liability company.

         Licata further attested that, in 1999, Valiant sold to Horizon its claim against Sterling for the cost of the steel. In satisfaction of its unpaid contract claim, Sterling conveyed to Horizon its interest in the billboard, billboard contract, and easement. Sterling also received 50 percent of the equity interests in Horizon. Horizon dissolved in 2002, and Licata received its assets, including the remaining 50 percent interest in the billboard, billboard contract, and easement.

         Humphrey also submitted an affidavit, attesting that he was an officer and a shareholder of Sterling from 1997 until 2002. In 1998, Renfroe and Sterling agreed that Sterling could erect, own, and operate a billboard on the Property. Sterling agreed to pay the costs of erecting the billboard, including the burden of obtaining the necessary zoning variance, and to pay 15 percent of the advertising revenue to Renfroe in exchange for a perpetual easement on the Property. Sterling obtained the variance and contracted with Valiant for the steel to erect the billboard.

         According to Humphrey, Sterling conveyed to Horizon its rights with regard to the billboard, billboard contract, and easement in exchange for a 50 percent equity interest in Horizon. Sterling later dissolved and transferred its assets to Humphrey. Once Horizon and Sterling dissolved, the appellants each retained a 50 percent interest in the ...


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