SAWS AT SEVEN HILLS, LLC et al.
v.
FORESTAR REALTY, INC. et al. FORESTAR REALTY INC. et al.
v.
SAWS AT SEVEN HILLS, LLC et al. BERKSHIRE HATHAWAY HOME SERVICES, GEORGIA
v.
SAWS AT SEVEN HILLS, LLC et al.
ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
RICKMAN, JUDGE.
Approximately
four and a half years after acquiring property in Seven
Hills, a planned community, SAWS at Seven Hills, LLC,
NatureWalk Development Company, Inc., and Artisan Built
Communities, LLC (collectively "SAWS"), filed suit
against the Seven Hills Homeowners Association, Inc. (the
"HOA"), Forestar Realty Inc. (the declarant of the
HOA), and Fieldstone Realty Partners d/b/a Fieldstone
Association Management (the management company for the HOA)
(collectively "Forestar"), to resolve disputes
over, inter alia, HOA assessments, maintenance of common
areas within the community, and alleged false information
provided by Forestar to prospective home buyers regarding
SAWS's properties. SAWS also filed suit against Berkshire
Hathaway Home Services Georgia ("BHHS"), a real
estate brokerage firm with a sales office located inside the
Seven Hills clubhouse, alleging that its sales agents
provided false information to prospective home buyers
regarding SAWS properties. SAWS sought a declaratory judgment
and alleged breach of covenants by Forestar, and further
alleged tortious interference with business relations by
Forestar and BHHS.
Forestar
and BHHS filed motions for summary judgment. The trial court
granted Forestar's motion in part and denied it in part
as to the declaratory judgment and breach of covenant claims,
and denied summary judgment to Forestar and BHHS on
SAWS's claims of tortious interference with business
relations.
For the
following reasons, we vacate the trial court's ruling on
SAWS's claims for declaratory judgment and breach of
covenant and remand for proceedings consistent with this
opinion. We reverse the trial court's denial of summary
judgment to Forestar and BHHS on SAWS's tortious
inference with business relations claim.
To prevail at summary judgment, the moving party must
demonstrate that there is no genuine issue of material fact
and that the evidence and all reasonable inferences and
conclusions drawn therefrom, viewed in the nonmovant's
favor, warrant judgment as a matter of law. We review de novo
the trial court's ruling on a motion for summary
judgment.
(Citation and punctuation omitted.) Hart v. Sirmans,
336 Ga.App. 212 (784 S.E.2d 67) (2016).
So
viewed, the record shows that Seven Hills is a planned
community that encompasses over 2700 acres of land. The
original developer of Seven Hills was TEMCO Associates, LLC
("TEMCO"). TEMCO created the Seven Hills HOA and,
in 2003, recorded the "Declaration of Covenants,
Conditions, and Restrictions for Seven Hills" (the
"Declaration"). TEMCO was the Declarant under the
Declaration.
At some
point, TEMCO sold approximately 855 acres of Seven Hills
("the Property") to Patrick Malloy Communities,
LLC, which later sold the Property to Levitt and Sons of
Paulding County, LLC ("Levitt"). Levitt started to
develop the Property and subsequently recorded 44 platted
lots with the HOA.
Later,
Levitt filed for bankruptcy. Thereafter, SAWS acquired the
Property through a bankruptcy sale. During the pendency of
the bankruptcy sale, Levitt recorded another plat which
recombined the Property into one unit. The bankruptcy court
approved the sale.
At some
point after SAWS acquired the Property, TEMCO transferred its
ownership rights in the remaining acreage of Seven Hills to
Forestar. TEMCO also assigned to Forestar its rights as
declarant under the Declaration. In 2014, Forestar recorded
an Amended Declaration and a Supplementary Declaration. SAWS
disputes the enforceability of the Amended and Supplementary
Declarations.
SAWS
sought a declaratory judgment as to two separate issues
involving the interpretation of language contained in the
Declaration related to HOA assessments and maintenance of
common areas. As to HOA assessments, SAWS argued that the
Declaration is ambiguous as to the triggering point for the
payment of assessments after a plat is recorded and sought
clarification as to when assessments shall be calculated with
respect to each subsequently platted unit. SAWS further
argued that it was entitled to a declaration that the
Property should have been treated as one unit until mid-2013
when it recorded its first plat. Regarding maintenance of
common areas, SAWS argued that it was entitled to a
declaration that Forestar is required to maintain common
areas owned by SAWS. SAWS's breach of covenant claims
center around the same issues, namely that Forestar breached
the Declaration by charging SAWS for assessments not owed.
SAWS further alleged that Forestar failed to maintain common
areas in accordance with the terms of the Declaration.
Additionally,
SAWS argued that agents of Forestar and BHHS gave potential
home buyers false information about SAWS's properties in
order to steer buyers away from purchasing homes from SAWS.
SAWS alleged that as a result of Forestar and BHHS's
actions, SAWS suffered damages due to lost sales.
The
trial court granted in part and denied in part summary
judgment to Forestar on SAWS's claims for declaratory
judgment and breach of covenant, and denied summary judgment
to both Forestar and BHHS on SAWS's claim for tortious
interference with business relations. For the following
reasons, we vacate the trial court's ruling on SAWS's
claims for declaratory judgment and breach of covenant and
remand this case for proceedings consistent with this
opinion. We reverse the trial court's denial of summary
judgment on the tortious inference with business relations
claim as to both Forestar and BHHS.
Case
No. A17A0869
1. SAWS
contends that the trial court erred by granting summary
judgment in part to Forestar on its claims for declaratory
judgment and breach of covenant regarding HOA assessments.
Specifically, SAWS argues that the Declaration is ambiguous
as to when the obligation to pay HOA assessments commences
and contends that the trial court failed to engage in a
contract construction analysis and/or misinterpreted the
contract language as to when its obligation to pay
assessments began. We agree.
The
Declaration provides that, "[t]he obligation to pay
assessments shall commence as to each Unit on the earlier of
(a) the closing of the conveyance of the Unit to a Class
"A" Member other than a Builder; or (b) 15 months
following the conveyance of the Unit from [Forestar] or any
Affiliate of [Forestar] to a Builder . .
."[1] The Declaration defines a "Unit"
as,
[a] portion of Seven Hills, whether improved or unimproved,
which may be independently owned and is intended for
development, use and occupancy as an attached or detached
residence for a single family. The term shall refer to the
land, if any, which is part of the Unit as well as any
improvements thereon. The boundaries of each Unit shall be
delineated on a recorded plat.
Prior to recording a subdivision plat delineating Units
within a parcel, such parcel shall be deemed to be a single
Unit. Thereafter, the portion encompassed on such plat shall
contain the number of Units determined as set forth in the
preceding paragraph. Any portion not encompassed on such plat
continue to be treated as a single unit.
SAWS
argues that while the Declaration is clear as to when a
Builder pays assessments for the Unit(s) that it acquires at
the time of the conveyance of the property from Forestar or
its affiliate (i. e. 15 months from the conveyance), it is
ambiguous as to when the obligation to pay assessments
commences as to each newly platted Unit the Builder
subsequently records after the initial conveyance of the
property.
[U]nder the Declaratory Judgment Act, a superior court may
enter declaratory judgment in cases of actual controversy,
and to determine and settle by declaration any justiciable
controversy of a civil nature when it appears that the ends
of justice require that such should be made for the guidance
and protection of the petitioner, and when such a declaration
will relieve the petitioner from uncertainty and insecurity
with respect to his rights, status, and legal relations. But
a declaratory judgment may not be merely advisory in nature.
Thus, when a party seeking ...