LAFONTAINE et al.
ALEXANDER et al. ALEXANDER et al.
LAFONTAINE et al.
DILLARD, C. J., RAY, P. J., and SELF, J.
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
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.
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.
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.
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).
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
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.
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.
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.
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. 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. The Lafontaines did not appeal the May
2011 ruling. Rather, on November 1, 2013, they filed a Third
Amended Complaint. 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.
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
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.
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 §
9-11-60 (h). However, the trial court's failure to vacate
the May 2011 summary judgment order does not foreclosure our