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Great Water Lanier, LLC v. Summer Crest at four Seasons on Lanier Homeowners Association, Inc.

Court of Appeals of Georgia, Third Division

January 2, 2018

GREAT WATER LANIER, LLC
v.
SUMMER CREST AT FOUR SEASONS ON LANIER HOMEOWNERS ASSOCIATION, INC., and vice versa.

          ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.

          Ellington, Presiding Judge.

         Great Water Lanier, LLC, filed this action in the Superior Court of Hall County against Summer Crest at Four Seasons on Lanier Homeowners Association, Inc., seeking, inter alia, a declaratory judgment that two undeveloped parcels of land Great Water owns are not burdened by the declaration of covenants applicable to the Summer Crest subdivision. Great Water filed a motion for partial summary judgment on this issue. After a hearing, the trial court denied Great Water's motion as to the larger parcel and, after notice, sua sponte granted summary judgment in favor of the Association as to that parcel, declaring that the parcel is subject to the declaration of covenants.[1] In Case No. A17A1810, Great Water appeals. The trial court also granted the Association's cross-motion for partial summary judgment as to Great Water's claims for defamation of title and punitive damages, and Great Water appeals. In Case No. A17A1811, the Association cross-appeals from two earlier, nondispositive orders denying its motion for judgment on the pleadings and from a purported ruling allowing Great Water to withdraw an admission. For the reasons explained below, we affirm in Case No. A17A1810 and dismiss as moot in Case No. A17A1811.

         Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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[.]" OCGA § 9-11-56 (c).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 S.E.2d 779) (2010). The relevant facts that follow are undisputed unless otherwise noted.

         In 1988, Sharon/Lupton Partnership established the Summer Crest subdivision in Hall County. As the developer and declarant, the partnership recorded a Declaration of Covenants, Restrictions and Easements dated September 13, 1988, recorded in Hall County. A Tennessee corporation, Stonebridge Development Corporation, was one of the general partners, and became the successor in interest to the partnership. Stonebridge Development filed an amended declaration of covenants in 1994.[2] The declaration of covenants, as amended, placed certain restrictions, covenants and easements on the development and use of subdivision property and created the Association to own and maintain common areas and to enforce the covenants, restrictions and easements contained in the declaration.

         The 1988 declaration of covenants described the property as comprising 59 single family lots and one amenity area lot. The declaration as amended in 1994, in Article X, allowed Stonebridge Development to make specified "Phase 2 Property" subject to the covenants, by filing an approved subdivision plat that expressly stated its intention to make the annexed real property subject to the provisions of the declaration, and allowed for the development of up to 27 additional homes. The Phase 2 Property included two tracts; Tract 1 comprised 17.338 acres and Tract 2 comprised 13, 211 square feet. The amended declaration provided a process for resolving an issue that might arise in the event Stonebridge Development subjected the Phase 2 Property to the declaration of covenants, specifically that, with the addition of the new Phase 2 households, the existing recreational area might not have the needed capacity to serve all of the members. The amended declaration provided that, within ten years after the filing of the amended declaration on December 29, 1994, such annexation of additional property by Stonebridge Development did not require the consent of the Association. Otherwise, additional property could be annexed and made subject to the covenants by approval of 60 percent of the Association's members, that is, the subdivision's homeowners.

         In 1999, Stonebridge Development merged into Springlake LLC, a Georgia corporation. A week later, Springlake LLC merged into Stonebridge, LLC, a Georgia corporation.

         On May 23, 2003, within ten years after the filing of the 1994 amended declaration, Stonebridge recorded the Final Plat of Summercrest Phase II in the real estate records of Hall County, Plat Book 830, Pages 135A-142A.[3] Steve Kelly signed the plat on behalf of Stonebridge. At the bottom of the first page, the Phase II plat contains the notation, "Property subject to the Summer Crest Homeowner Association's Amended and Restated Declaration of Covenants, Restrictions and Easements and Design Standards[.]" On the second page, under "Notes, " the plat contains the statement, "This phase is subject to the covenants recorded for Summercrest Subdivision." The plat's "area summary" breaks down the 17.338 acre total (which was specified in the 1994 declaration of covenants as Tract 1 of the Phase 2 property) into 1.692 acres of roads, 10.694 acres of lots, and 4.952 acres for "future development." The maps details fifteen residential lots and a parcel labeled "Future Development (This Area in [sic] Not to Be Common Area) 4.952 acres." The entire tract is bifurcated by a road, which ends in a cul de sac, and another cul de sac branches off at the road's midpoint, surrounded by five lots. The 4.952 acre parcel was not subdivided into residential lots, but it wraps around the cul de sac at the end of the road. [4]

         The fifteen platted residential lots were developed in 2003. On June 30, 2004, Steve Kelly, for "Stonebridge Development, " and the president of the Association executed an agreement, reciting that Stonebridge Development had exercised its right to annex the Phase 2 Property and filed the required plat and that it had sold and/or begun construction of the homes. Referring to Article X of the declaration of covenants, the agreement states, "[u]nder the Declaration, the Association and [Stonebridge] were to negotiate an amount that [Stonebridge] would pay the Association in order to improve the recreation area for the addition of the Phase 2 Property."[5] Stonebridge agreed to pay the Association $25, 000 for recreation area improvements. The 2004 Phase 2 agreement provided: "It is understood and agreed that this agreement includes the 4.952 acres noted on [the] Final Plat for Future development" that was included in the 17.338 acre tract of the Phase 2 Property and that Stonebridge could develop the 4.952 acre parcel into lots "at any given time (subject, of course, to the Declaration) and these additional lots will be included in the Subdivision at no further cost to [Stonebridge]."

         The fifteen homes built according to the Phase 2 plat were sold to homeowners between 2004 and 2009. Late in 2009, Great Water bought the still-undeveloped 4.952 acre parcel and the 13, 212 square feet (0.303 acres) parcel (defined as Tract 2 of the Phase 2 property) from Stonebridge. Among the documents in the closing binder was an owner's affidavit, executed on September 8, 2009, by Joel Richardson, the manager of Stonebridge, who deposed that the 4.952 acre parcel and the 0.303 acre parcel were free of restrictions and encumbrances, "except as set forth in Exhibit 'C' attached hereto and made a part hereof[.]" As to the 4.952 acre parcel (but not as to the 0.303 acre parcel), Exhibit "C" listed as "permitted exceptions" the 1988 declaration of covenants for Summer Crest subdivision, as amended in 1994. Richardson also executed limited warranty deeds conveying the two parcels to Great Water, "subject to those matters described in Exhibit 'B' attached hereto and made a part hereof." Exhibit "B, " titled "Permitted Exceptions, " listed matters such as taxes not yet due and a utility easement, giving the easements' recording information. Consistent with the owner's affidavit, Exhibit "B" for the 4.952 acre parcel (but not Exhibit "B" for the 0.303 acre parcel) listed the 1988 Summer Crest declaration of covenants, as amended in 1994 and thereafter, giving filing dates and deed book references. Exhibit "B" also listed "Plat of Survey recorded at Plat Book 830, Page 135A, aforesaid records., " i.e., the 2003 Phase 2 plat.

         Also included in the closing binder for the 2009 purchase and sale was Richardson's sworn "Statement of Intent Regarding Amended and Restated Declaration of Covenants, Restrictions and Easements, " executed on September 8, 2009, which stated:

Stonebridge was the Declarant under the Amended Declaration on May 23, 2003, when Stonebridge caused to be filed in . . . the real estate records of Hall County, Georgia, that certain Final Plat for Summercrest Phase 2[] . . . By filing the Subdivision Plat, the Declarant did not intend to, and did not, subject all or any portion of the [Phase 2] Property to the Amended Declaration. No part of the [Phase 2] Property is subject to the Amended Declaration, and the right of the Declarant to subject the Property to the Amended Declaration ...

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