Opinion
A07A1951
DECIDED: MARCH 17, 2008
The City of Dawsonville filed this lawsuit seeking specific performance of an agreement requiring Gold Creek SL, LLC to convey land and easement rights to the City for development of a waste water treatment facility. Gold Creek filed a motion to dismiss the complaint and the City filed a motion for summary judgment. The trial court denied Gold Creek's motion and granted the City's motion. Gold Creek appeals, contending that the agreement was unenforceable since it failed to sufficiently identify the quantity and location of the property to be conveyed so as to satisfy the statute of frauds, and since the provision to landscape the property "in an aesthetically pleasing manner" lacked certainty. For the reasons that follow, we affirm the trial court's ruling that granted specific performance of the agreement's Swan Lake property transfer provisions. We conclude that the trial court's ruling as to the easement provisions is affirmed in part and reversed in part. Finally, since the trial court failed to rule upon Gold Creek's claim regarding the landscape provision, we remand the case for a ruling as to that claim.
1. Gold Creek challenges the trial court's summary judgment ruling.
Summary judgment is appropriate when the record shows 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. On appeal from the grant or denial of summary judgment, we conduct a de novo review, construing the evidence and all reasonable inferences most favorably to the nonmoving party.
(Punctuation and footnotes omitted.) Makowski v. Waldrop, 262 Ga. App. 130 ( 584 SE2d 714) (2003). See also OCGA § 9-11-56 (c).
So viewed, the evidence shows that the City of Dawsonville entered into an agreement with Gold Creek SL, LLC ("Gold Creek") as well as Gold Creek Resort Associates, LLC and Gold Creek Land Associates, LLC (collectively "Resort/Land") for the development, construction, and operation of a waste water treatment plant, spray fields, and out storage on the Gold Creek and Resort/Land property. To carry out its purpose, the agreement required Gold Creek and Resort/Land to convey certain tracts of land to the City, including a lake designated as "Swan Lake" located on the golf course property to be used for holding treated water that would be sprayed onto the golf course; a tract for a waste water lift station; and a five-acre tract of land referred to as the "Site" to be used to construct the waste water treatment plant. The agreement further required Gold Creek and Resort/Land to provide easements to the property as necessary to carry out the terms. The agreement obligated the City to "landscape the water edge of Swan Lake in an aesthetically pleasing manner with marshgrass, pampas grass or equivalent as may be required by the EPD to prevent erosion and not detract from the landscape of the Golf Course."
The agreement was signed, notarized, and recorded in the Dawson County real estate records. The agreement provided that it was to be binding upon the executing parties as well as their successors and assigns. The property transfers were to occur within sixty days of the City's issuance of written notice that it was ready to proceed with the funding, permitting, and construction of the waste water treatment facility. When the City provided its written notice, however, Gold Creek failed to execute warranty deeds to effect the property transfers. Gold Creek's representative requested a ninety-day extension of time for compliance with the agreement's terms, which the City granted. When the extended deadline passed and there had been no property transfers from Gold Creek, the City issued a demand letter seeking compliance with the agreement.
The City thereafter filed the instant lawsuit for breach of contract seeking specific performance, attorney fees, and expenses of litigation against Gold Creek; Resort/Land and its parent company, Ultima Holdings, LLC; and Southern Catholic, Inc., as successor in interest to the five-acre Site that was subject to the agreement. Southern Catholic later transferred the Site to the City as required by the agreement and was dismissed from the lawsuit. The City filed a motion for summary judgment as to all claims of its complaint, and Gold Creek filed a motion to dismiss the City's claims. The trial court denied Gold Creek's motion, and granted the City's motion.
Although the trial court granted the City's motion for summary judgment, its ruling only granted specific performance of the Swan Lake property transfer and of the easement provisions. The trial court's ruling did not address the City's claim for attorney fees and expenses. The parties likewise do not present that issue in this appeal.
Gold Creek argues that the trial court erred in granting the City's motion for summary judgment since the agreement failed to sufficiently describe and identify the property to be conveyed.
To satisfy the statute [of frauds], the sales . . . contract must contain a clear and definite description of the property. Although the description need not be perfect, the contract must furnish the key to the identification of the land intended to be conveyed by the grantor. If the premises are so referred to as to indicate his intention to convey a particular tract of land, extrinsic evidence is admissible to show the precise location and boundaries of such tract. The test as to the sufficiency of the description of property contained in a deed is whether or not it discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of the land therein referred to, so that its identification is practicable. A property description fails as indefinite if no particular tract of land is pointed out, but even a vague description will suffice if by competent parol evidence its precise location is capable of ascertainment and its identity can thus be established.
(Footnotes and punctuation omitted.) Makowski, 262 Ga. App. at 132 (1) (a). To be entitled to specific performance of an agreement to transfer title to property, the land must be clearly identified. Id. at 133 (1) (a). "The adequacy of a property description is a legal question for the court." Id. at 132 (1) (a).
Here, the property descriptions at issue are those referenced in the agreement as "Swan Lake" and, for purposes of the easements, "any additional properties owned by Gold Creek and/or Resort/Land connected to or surrounding the Site and/or connected with [the] project . . ., including, but not limited to, easements to Swan Lake, easements for the entire Gold Creek Golf Course and Resort/Land property." Accordingly, we address these property descriptions below.
Although Gold Creek presents argument as to a purportedly vague description of the five-acre Site to be transferred for the project, that property was no longer at issue because it had been transferred as required by the agreement. After Southern Catholic transferred the five acre Site to the City in compliance with the agreement, the City no longer needed to seek specific performance as to that property. Because any issue regarding that property had been resolved, Southern Catholic was dismissed from the lawsuit prior to the trial court's entry of the summary judgment order. The agreement further required Gold Creek to deed to the City the tract of property known as the "Lift Station," but Gold Creek's appellate brief presents no claim or argument as to that property. The City indicates that the Lift Station was transferred to the City prior to the filing of the lawsuit.
(a) The agreement required Gold Creek to "deed to the City that tract of property known as Swan Lake located on the Gold Creek golf course." Although the agreement did not identify the lake property by metes and bounds or other description, it specifically identified the lake by its name, "Swan Lake." The agreement further provided a key to identifying the property by referencing and incorporating the approved "Master Plan" for the Gold Creek development. The Master Plan included a plat that specifically designated Swan Lake by showing its location and boundaries.
The agreement and Master Plan plat in this case satisfied the requirement that "the key must be in the document itself and lead to the establishment and location of boundaries as of the time of the execution of the contract." McCumbers v. Trans-Columbia, 172 Ga. App. 275, 277 ( 322 SE2d 516) (1984). See also CDM Custom Homes v. Windham, 280 Ga. App. 728, 733 (3) ( 634 SE2d 780) (2006) ("The key relied upon [to identify the land] must be sufficient to provide identification by reference to extrinsic evidence which exists at the time that the contract is entered into by the parties.") (punctuation and footnote omitted). The Master Plan plat was referenced in the agreement as having been approved and dated May 6, 2002 and revised on November 24, 2003. The evidence thus established that the Master Plan plat was in existence at the time the agreement was subsequently executed on June 7, 2004.
Gold Creek argues that a plat of the five-acre Site involved a "survey to be made in the future," which did not exist when the agreement was signed. Again, the Site is not at issue in this case. It is clear that the Master Plan plat depicting the Swan Lake property at issue was in existence when the agreement was signed. Moreover, the Master Plan plat had already been finalized and approved, and there is no evidence that the parties had the discretion to change the locations and boundaries of the Swan Lake property and the easements upon preparation of the future surveys. Compare Plantation Land Co. v. Bradshaw, 232 Ga. 435, 437-438 (II) ( 207 SE2d 49) (1974) (determination of the property's location and boundaries could not be made from a plat that could be amended by the description of a survey that was not existing at the time of the contract); White v. Plumbing Distrib., 262 Ga. App. 228, 231 (1) ( 585 SE2d 135) (2003) (master plan was not a key to identifying the property since it left unfettered discretion in the parties to make judgment calls in converting the boundary lines for the site via a survey to be obtained long after the execution of the agreement, and the exhibit subsequently added was not a part of the agreement when it was executed).
Because the agreement as a whole, including the Master Plan plat of the property furnished a key to identifying the Swan Lake water site, the property description was not void for uncertainty. See Nhan v. Wellington Square, 263 Ga. App. 717, 721-722 (1) ( 589 SE2d 285) (2003) (contract identifying name by which the real property was called, "Wellington Square," provided descriptive key allowing trial court to consider extrinsic evidence to identify the property). See also Sharpe v. Savannah River Lumber Corp., 211 Ga. 570, 571-572 (2) ( 87 SE2d 398) (1955) (property description using words "swamp land" furnished a key to identify property with the aid of parol testimony); C. Alexander Lumber Co. v. Bagley, 184 Ga. 352, 360 (1) ( 191 SE 446) (1937) (contract for the sale and conveyance of all the timber to be cut on a portion of the tract "known as the pond site" was not void for uncertainty when the contract furnished a key to identification of the tract known as the pond site, and the line of demarcation between the pond site and other land could be established by parol testimony); Clark v. Cagle, 141 Ga. 703, 707 (2) ( 82 SE2d 21) (1914) (contract describing property as "Humphrey Place" with acreage was not too vague and indefinite so as to render the contract unenforceable).
(b) The agreement also required Gold Creek to provide
easements involving any additional properties owned by Gold Creek and/or Resort Land connected to or surrounding the Site and/or connected with [the] project as may be necessary to carry out the terms of [the] Agreement, including, but not limited to, easements to Swan Lake, easements for the entire Gold Creek Golf Course and Resort/Land property, which shall be utilized for spray irrigation purposes in accordance with the terms of [the] Agreement.
The trial court correctly determined that the property descriptions for the "easements to Swan Lake" and the "easements for the entire Gold Creek Golf Course and Resort/Land property" were sufficient to identify the land at issue, with the use of the Master Plan plat as a key. The location of the Gold Creek Golf Course was provided by the agreement's terms reflecting that "Swan Lake [was] located on the Gold Creek [G]olf [C]ourse." As previously stated, the agreement further referenced the Master Plan plat as the key to determining the property and location at issue. The Master Plan plat illustrated Swan Lake and the Gold Creek Golf Course upon which the lake was located, and further reflected the property boundaries along other identified tracts for residential development. Accordingly, the descriptions of the Swan Lake and Golf Course property were not void for uncertainty when the agreement furnished the Master Plan plat as a key to the property identification. See Sharpe, 211 Ga. at 571-572 (2); Bagley, 184 Ga. 360 (1); Chicago Title Ins. Co. v. Investguard, Ltd., 215 Ga. App. 121, 124 (2) ( 449 SE2d 681) (1994) ("[T]here is no absolute requirement of indicating the exact path of an easement. . . . If the premises are so referred to as to indicate the grantor's intention to convey a particular tract of land, extrinsic evidence is admissible to show the precise location and boundaries of such tract") (citation and punctuation omitted).
But, we reach a different conclusion as to the property description requiring an easement to "any additional properties owned by Gold Creek and/or Resort/Land connected to or surrounding the Site and/or connected with [the] project as may be necessary to carry out the terms of [the] Agreement." This easement provision fails to point to any specific property. While there is no confusion as to the identification of the five-acre Site, the easement provision pertains to "any additional properties" that are "connected to or surrounding the Site and/or connected with [the] project." No boundary or specific designation is provided for the additional property.
Since Southern Catholic conveyed the five-acre tract as required by the agreement, "there is no evidence that the parties were confused about that portion of the property to be conveyed." Kay v. W.B. Anderson Feed Poultry Co., 278 Ga. App. 674, 675 ( 629 SE2d 408) (2006). The Resort/Land and Ultima defendants likewise did not express confusion as the property descriptions or identifications. Rather, they contended that they attempted to comply with the agreement but were unable to do so because of the breach by Gold Creek. In addition, these defendants asserted cross-claims against Gold Creek, alleging that Gold Creek had breached the agreement by failing to deed over the property to the City. We note, however, that the easement provision at issue was not for the Site, but rather for any additional property connected to or surrounding the Site.
Because the "any additional properties" easement provision fails to specify any property location, the Master Plan cannot serve as a key to point unerringly to the property at issue. As a result, this portion of the easement provision is void and unenforceable. See McClung v. Atlanta Real Estate Acquisitions, 282 Ga. App. 759, 761-763 (1) ( 639 SE2d 331) (2006) (agreement was unenforceable when it failed to designate any particular tract or lot intended to be conveyed). We therefore must reverse as to the "any additional properties" easement provision.
As to the agreement's property conveyance terms that were valid and enforceable, the City was entitled to specific performance of those terms. The trial court's decision granting summary judgment in favor of the City as to those terms was authorized. We therefore affirm the trial court's decision as to the Swan Lake property conveyance and the easement provisions as to Swan Lake and the Golf Course property. But we reverse the trial court's decision as to the "any additional properties" easement provision which fails to designate any particular property.
2. Gold Creek also contends that the agreement's provision to "landscape the water edge of Swan Lake in an aesthetically pleasing manner" was unenforceable as lacking certainty. Although Gold Creek raised this claim in a supplemental brief to the trial court, the trial court did not rule upon this issue. "Appellate courts exist to review asserted error but where the defendant . . . obtains no ruling of the trial court, the contended problem cannot be made the basis of appellate review as there is no ruling to review." (Citation and punctuation omitted.) Lamb v. T-Shirt City, 272 Ga. App. 298, 303 (2) ( 612 SE2d 108) (2005). In the absence of a ruling from the trial court, we cannot reach the merits of this claim, and we must remand the case for the trial court's consideration as to whether the City is entitled to specific enforcement of the agreement's landscaping provision in light of Gold Creek's argument.
We note that the agreement contains a severability clause providing that if any provision is construed to be unenforceable, the remaining provisions that are enforceable shall remain in full force and effect. Therefore, specific performance of the property transfer and easement provisions do not effect the enforceability of the landscape provisions. A separate determination is required as to whether the landscaping provision lacks mutuality or certainty so as to render it unenforceable as claimed by Gold Creek.
Judgment affirmed in part, reversed in part; case remanded with direction. Blackburn, P. J., and Ruffin, J., concur.