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Lafontaine v. Alexander

Court of Appeals of Georgia, Fourth Division

October 31, 2017

LAFONTAINE et al.
v.
ALEXANDER et al. ALEXANDER et al.
v.
LAFONTAINE et al.

          DILLARD, C. J., RAY, P. J., and SELF, J.

          RAY, PRESIDING JUDGE.

         These cases arise from the development by Thomas Watley of land now known as the Hickory Hill subdivision in Harris County. Watley was assisted by Mark Alexander (collectively, the "Defendants") in clearing the land and developing the property.

         Robert and Diane Lafontaine purchased a lot in the Hickory Hill subdivision. Claiming that utility easements were not properly placed on their property, the Lafontaines sued the Defendants for, inter alia, fraudulent concealment of negligent construction, negligent construction, maintaining an abatable nuisance, and negligent construction of the utility lines. In May 2011, the trial court granted partial summary judgment to Defendants on all pending claims, except the claim of negligent construction related to the placement of the utility lines outside of any recorded easement.

         Nearly three years later, the Lafontaines filed an amended complaint and a motion to vacate the May 2011 order. In 2016, the trial court denied the Lafontaines' motion to vacate the 2011 summary judgment order and granted the Defendants' second motion for summary judgment as to all claims, again except for the negligent construction claim related to negligent placement of the utilities.

         The parties filed cross-appeals from the second summary judgment order. In A16A1266, the Lafontaines argue that the trial court erred by granting summary judgment in favor of the Defendants on fraud, negligent misrepresentation, breach of warranty of title and continuing nuisance. They also claim that the trial court erred in denying their motion to vacate the May 2011 summary judgment order. As set forth herein below, we affirm in part and reverse in part. In A17A1267, Defendants argue that the trial court erred by failing to grant summary judgment to Alexander on all claims because the Lafontaines failed to establish evidence of a joint venture between Alexander and Whatley in the Hickory Hill subdivision. As we explain herein below, we reverse the trial court's denial of summary judgment to Alexander.

         On appeal from a grant of summary judgment, we conduct a de novo review of the evidence to determine if there exists a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, entitle the movant to judgment as a matter of law. (Citation omitted.) Capital Color Printing, Inc. v. Ahern, 291 Ga.App. 101, 102 (661 S.E.2d 578) (2008).

         The evidence shows that in 2011 that Watley was the sole owner of the unimproved land (that later became the Hickory Hill subdivision) and that he decided to redevelop the land for resale. In 2002, Watley asked his friend, Alexander, for advice on how to develop the property into four lots. In clearing and developing the land, ditches were dug for the utilities.

         A survey of Hickory Hill was performed which split the property into four tracts of land and shows a sixty-foot perpetual easement beginning at Warm Springs Road and ending at a cul-de-sac. Pursuant to the Subdivision Regulations of Harris County, Watley submitted a preliminary plat, followed by a Final Plat on May 2, 2002. The Final Plat of the Hickory Hill subdivision, as submitted by Watley, was approved by the Planning Commission of Harris County on May 15, 2002. According to Harris County Manager, Danny Bridges, although the planning commission approved the Final Plat in 2002, the plat did not comply with the county subdivision regulations because it made no provision for utilities or easements along the appropriate lot lines for utility lines and underground mains or cables.[1]

         Even though Watley signed and submitted the survey of Hickory Hill to the Harris County Planning Commission as the Final Plat of the subdivision, he testified that he had not personally ascertained whether the ditch containing the utilities coincided with the Final Plat. Watley deposed that he never read the county subdivision regulations.

         The Lafontaines purchased Tract Four in the Hickory Hill subdivision as evidenced by a Warranty Deed dated April 14, 2006. In the summer of 2007, they began construction of their home. After breaking ground, their builder discovered that the water meter for Tract Four was actually installed on Tract One. The Lafontaines immediately stopped construction and contacted their attorneys. Watley then provided a new survey of Hickory Hill subdivision, which reflected a new ten-foot easement and represented that the water lines were physically located inside that easement. Watley told the parties that the water line ran within the ten-foot easement and that all other utilities were buried underground following the roadway easement. The parties then executed a Second Amended Joint Reciprocal Easement Agreement (the "Reciprocal Easement Agreement") on October 16, 2006. This new survey was filed and recorded with the Clerk of Harris County Superior Court.

         The Lafontaines later discovered that the utilities were not physically located inside the perpetual easement reflected on the Final Plat or within the ten-foot easement reflected on the Reciprocal Easement Agreement. Claiming that the utilities were not properly placed on their property, the Lafontaines sued the Defendants, inter alia, for fraudulent concealment of negligent construction, continuing nuisance, and negligent construction of the gas supply line and other utilities.[2] In May 2011, the trial court granted the Defendants' motion for summary judgment on all pending claims, except for the claim of negligent construction concerning the placement of the utilities on the property.[3] The Lafontaines did not appeal the May 2011 ruling. Rather, on November 1, 2013, they filed a Third Amended Complaint.[4] The Third Amended Complaint, inter alia, reasserted identical claims for which summary judgment was granted in May 2011, including "fraudulent concealment of negligent construction and development of Hickory Hill subdivision, " "negligent construction and development of Hickory Hill subdivision" as it relates to the construction of the roads for ingress and egress, and "continuing nuisance to private property." The Third Amended Complaint also asserted causes of action against Watley for suppression of material facts, negligent misrepresentation, and breach of warranty of title, and for estoppel against both Defendants.

         On June 30, 2016, Defendants filed a second motion for summary judgment seeking dismissal of all of the Lafontaines' claims, including those which were previously dismissed on May 11, 2011. The trial court heard oral argument on the summary judgment motion on August 5, 2016. Subsequent to oral argument and five years after the trial court's May 2011 order, the Lafontaines then filed a motion to vacate the May 2011 summary judgment order. On September 21, 2016, the trial court denied the Lafontaines' motion to vacate the May 2011 summary judgment order and granted Defendants' summary judgment motion on all claims, except for the negligent construction claim related to the placement of the utilities.

         1. As an initial matter, we address whether the trial court's May 2011 summary judgment order foreclosed the claims asserted by the Lafontaines in their third amended complaint or consideration of evidence filed after the May 2011 summary judgment was entered.

         It is true that "[s]ummary judgment orders which do not dispose of the entire case are considered interlocutory and remain within the breast of the court until final judgment is entered. They are subject to revision at any time before final judgment unless the court issues an order 'upon express direction' under OCGA § 9-11-54 (b)." (Citation and punctuation omitted.) Canoeside Props., Inc. v. Livsey,277 Ga. 425, 427 (1) (589 S.E.2d 116) (2003). Although OCGA § 9-11-54 (b) authorizes a trial court to revise an interlocutory order, the trial court is not required to grant a motion to vacate or amotion for reconsideration in every circumstance. See OCGA ยง 9-11-60 (h). However, the trial court's failure to vacate the May 2011 summary judgment order does not foreclosure our ...


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