Opinion
A16A1508
02-23-2017
LICATA et al. v. 2685 LANGFORD PARKWAY, LLC et al.
FIFTH DIVISION
DILLARD, P. J.,
REESE and BETHEL, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk's office within ten days of the date of decision to be deemed timely filed.
REESE, Judge.
James S. Licata and D. Ray Humphrey appeal from the denial of their motion for summary judgment and the grant of summary judgment in favor of 2685 Langford Parkway, LLC ("the LLC") and Ali Katoot, a representative of the LLC, in the appellants' action regarding their rights to a billboard, advertising revenue, and an easement on real property purchased by the LLC. For the reasons set forth, infra, we affirm the denial of summary judgment to Licata and Humphrey and reverse the grant of summary judgment to the LLC and Katoot.
The undisputed evidence shows that, from approximately 1985 until 2011, R. Bogan Renfroe owned real property in Gwinnett County now known as 2685 Langford Parkway (the "Property"). In 1998, during his ownership of the Property, Renfroe entered into an agreement with Sterling Outdoor, LLC ("Sterling"), allowing Sterling to erect and operate a billboard on the Property in exchange for 15 percent of any advertising revenue.
The Property is also known as 2875 Langford Road and was previously known as 2575 Langford Road.
Renfroe borrowed approximately $1.1 million and executed a security deed in 2009, pledging as collateral certain real property in Gwinnett County. After Renfroe defaulted on the loan, the lender instituted foreclosure proceedings and thereafter sold the Property at public sale in 2011. The following year, the LLC purchased the Property.
According to the Statement of Undisputed Material Facts and Theories of Recovery filed by the LLC and Katoot, the security deed was originally recorded without a correct legal description of the Property, but was subsequently re-recorded to correct this error. The LLC and Katoot filed an uncertified copy of the security deed but did not include the copy containing the correct legal description.
In March 2015, Licata and Humphrey filed a complaint against the LLC and Katoot. Licata and Humphrey, who alleged that they were the successors in interest of Sterling, sought declaratory and injunctive relief and damages for conversion and trespass with respect to a billboard and the advertising revenue therefrom.
The trial court granted the appellees' motion for summary judgment and denied the appellants' motion for summary judgment. The court found that Sterling entered into an agreement whereby it would pay rent for the use of the property in an amount of 15 percent of the advertising revenue. This created a landlord-tenant relationship subject to termination without notice after the foreclosure. The trial court also rejected the appellants' claim of ownership in the billboard sign, which the court found had been sold with all fixtures upon foreclosure.
On appeal from the grant or denial of summary judgment, we review the evidence de novo, construing all reasonable conclusions and inferences drawn from the evidence in the light most favorable to the nonmovant. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
Willis v. City of Atlanta, 265 Ga. App. 640, 641 (2) (595 SE2d 339) (2004).
White v. Georgia Power Co., 265 Ga. App. 664 (595 SE2d 353) (2004).
[T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.With these guiding principles in mind, we turn now to the appellants' specific claims of error.
Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (citing OCGA § 9-11-56 (e)).
1. As an initial matter, we address the contention of the appellees, that the appellants lacked standing to bring the action.
(a) The appellees state in their appellate brief that the trial court found that the appellants "had failed to prove that they were the successors of Sterling." The appellants reply that the issue is not properly before this Court because the trial court never ruled on it.
In its summary judgment order, the trial court found that "[s]hort of their self-serving affidavits, [the appellants] ha[d] produced no documentary evidence of their ownership in the billboard sign." The trial court thus apparently concluded that the appellants had not established standing.
It is unclear, however, to what extent the court based its grant of summary judgment on this conclusion. "[A] grant or denial of summary judgment must be affirmed if it is right for any reason." Because the appellants had an opportunity to respond to the challenge to their standing below, we will address this issue.
Phinazee v. Interstate Nationalease, 237 Ga. App. 39, 40 (514 SE2d 843) (1999) (citations and punctuation omitted).
See Godwin v. Mizpah Farms, LLLP, 330 Ga. App. 31, 38, n. 7 (3) (a) (766 SE2d 497) (2014) (citation omitted).
(b) The appellees argue that the appellants failed to prove that they were successors of Sterling because the sole basis for their claim of ownership of the billboard was their "self-serving" affidavits. The appellants cite cases for the proposition that "'[a] self-serving conclusory affidavit not supported by fact or circumstances is insufficient to raise a genuine issue of material fact.'"
Lipton v. Warner, Mayoue & Bates, P.C., 228 Ga. App. 516, 517 (1) (492 SE2d 281) (1997) (citation omitted). See also Speir v. Krieger, 235 Ga. App. 392, 398 (2) (509 SE2d 684) (1998) (physical precedent only).
In his affidavit, Licata testified that he was an officer and controlling shareholder of Valiant Steel and Equipment, Inc. ("Valiant"), which furnished steel for Sterling's construction of the billboard in 1998. Sterling failed to pay Valiant the agreed-upon price of $25,000 for the steel. In 1999, Licata formed Horizon Outdoor Advertising, Inc. ("Horizon") as its sole officer and shareholder and later became its sole member when Horizon became a limited liability company.
Licata further attested that, in 1999, Valiant sold to Horizon its claim against Sterling for the cost of the steel. In satisfaction of its unpaid contract claim, Sterling conveyed to Horizon its interest in the billboard, billboard contract, and easement. Sterling also received 50 percent of the equity interests in Horizon. Horizon dissolved in 2002, and Licata received its assets, including the remaining 50 percent interest in the billboard, billboard contract, and easement.
Humphrey also submitted an affidavit, attesting that he was an officer and a shareholder of Sterling from 1997 until 2002. In 1998, Renfroe and Sterling agreed that Sterling could erect, own, and operate a billboard on the Property. Sterling agreed to pay the costs of erecting the billboard, including the burden of obtaining the necessary zoning variance, and to pay 15 percent of the advertising revenue to Renfroe in exchange for a perpetual easement on the Property. Sterling obtained the variance and contracted with Valiant for the steel to erect the billboard.
According to Humphrey, Sterling conveyed to Horizon its rights with regard to the billboard, billboard contract, and easement in exchange for a 50 percent equity interest in Horizon. Sterling later dissolved and transferred its assets to Humphrey. Once Horizon and Sterling dissolved, the appellants each retained a 50 percent interest in the billboard, the billboard contract, and easement, subject to the 15 percent revenue obligation.
We conclude, therefore, that the appellants were parties to the contracts at issue, so their affidavits were based on personal knowledge and set forth facts that would be admissible in evidence.
See Liles v. Innerwork, Inc., 279 Ga. App. 352, 353 (1) (631 SE2d 408) (2006).
The appellees do not argue that the appellants' affidavits rely on hearsay evidence or are otherwise inadmissible, but complain that "Appellants have not produced any documentation of any of the transactions." On summary judgment, however, the court "must accept the credibility of the evidence upon which the nonmoving party relies, it must afford that evidence as much weight as it reasonably can bear, and to the extent that the moving party points to conflicting evidence, it must discredit that evidence for purposes of the motion." The affidavits detailing the original billboard contract with Sterling and how the appellants obtained their interests in the billboard, the billboard contract, and the easement were sufficient to survive the appellees' motion for summary judgment on the issue of standing. It follows that the trial court erred to the extent it granted summary judgment to the appellees based on a conclusion that the appellants lacked standing.
Nguyen v. Southwestern Emergency Physicians, 298 Ga. 75, 84 (3) (779 SE2d 334) (2015) (citation and punctuation omitted) (noting that the General Assembly's authority to alter the summary judgment standard is limited by the right to trial by jury guaranteed by the Georgia Constitution).
See Windham & Windham v. Suntrust Bank, 313 Ga. App. 841, 842 (1) (723 SE2d 70) (2012) ("[I]n the absence of any evidence that the [affiant] did not, in fact, have the personal knowledge he claims, his affidavit is competent enough to sustain an award of summary judgment.") (citation omitted); Ellison v. Hill, 288 Ga. App. 415, 417 (1) (654 SE2d 158) (2007) ("The personal knowledge requirement set forth in OCGA § 9-11-56 (e) is met where the contents of the pleading indicate that material parts of it are statements within the personal knowledge of the affiant, as opposed to being made upon information and belief.") (punctuation and footnote omitted).
2. The appellants argue that the trial court erred in finding that they did not hold title to the billboard as personalty, contending that the undisputed evidence showed that the parties understood and intended for the billboard to remain the property of Sterling after it was erected on the Property.
The record includes an affidavit executed by Renfroe, who attested that in 1998, during his ownership of the Property, he told representatives of Sterling that Sterling could erect, own, and operate a billboard if Sterling paid the costs of obtaining a zoning variance and erecting the billboard and agreed to give Renfroe 15 percent of any advertising revenue. Further, Renfroe understood and intended that the billboard would remain the property of Sterling and that he only had a right to receive the agreed-upon portion of advertising revenue. Renfroe received revenue from advertising "from time to time from about 1998 until [Renfroe] no longer owned the [P]roperty in October 2011."
The appellants also submitted a certified copy of the 2012 limited warranty deed conveying the Property to the LLC. The purchaser at foreclosure conveyed to the LLC the Property subject to certain "Exceptions," including "[a]ll easements, restrictions and other matters of record" and those matters disclosed by a survey dated March 26, 2012, such as the "Billboard located in the southeast corner of the subject property."
In response, the appellees submitted an uncertified copy of a 2009 security deed that appears to have been executed by Renfroe in favor of the lender that subsequently foreclosed on the Property in 2011. According to the security deed, Renfroe pledged real property in Gwinnett County "[s]ubject to all easements, covenants and restrictions of record" and including "[a]ll buildings, structures and improvements of every nature whatsoever now or hereafter situated on the Land, and all fixtures, machinery, equipment, building materials, appliances and goods of every nature." According to the appellees, this shows that the billboard was an improvement that was conveyed with the Property when the lender foreclosed on its security interest because there was no documentation of any other security interest and the appellants failed to oppose the foreclosure on the fixture.
In a similar case, we held that a jury was authorized to find that billboards were removable personalty and not party of a realty. We reiterated:
Aquafine Corp. v. Fendig Outdoor Advertising Co., 155 Ga. App. 661 (1) (272 SE2d 526) (1980).
[W]hether fixtures have become attached to the realty as a part thereof, and not merely for incidental, transitory use, depends upon the intention of the parties vested with the ownership or use thereof. Whether an article of personalty connected with or attached to realty becomes a part of the realty, and therefore such a fixture that it can not be removed therefrom, depends upon the circumstances under which the article was placed upon the realty, the uses to which it is adapted, and the parties who are at issue as to whether such an article is realty or detachable personalty. Where it is doubtful, under all the circumstances, whether the article in question is personalty or is a fixture, the doubt is to be solved by the jury.
Id. (citations and punctuation omitted).
In this case, there is some evidence in the record that the billboard was not part of the Property that was ultimately purchased by the LLC. First, the 2009 security deed submitted by the appellees references "Exhibit 'A' attached hereto and incorporated herein" to provide the legal description of the collateral. No "Exhibit 'A'" is attached, however. The appellees stated below that the security deed was "re-recorded at deed book 49603, page 0268" of the Gwinnett County, Georgia records "to correct legal description." Although the appellants did not contest this assertion, we note that the corrected security deed with the legal description of the collateral pledged to the appellees' predecessor in interest is not part of the record.
Even assuming that the billboard was a "fixture" on the Property that was pledged as collateral by Renfroe, Licata and Humphrey testified that the billboard could be removed without damaging the Property and without significantly damaging the billboard. Humphrey and Renfroe also attested that they intended for the billboard to remain the property of Sterling and not Renfroe. Licata attached to his affidavit photographs of the billboard. In addition, the appellants presented a certified copy of the warranty deed, which showed that the billboard was excepted from the property conveyed to the LLC.
See Aquafine, supra.
Because there was conflicting evidence as to whether the billboard was a permanent improvement that had been conveyed as part of the Property or was a removable fixture that belonged to the appellants, the trial court erred in ruling that the LLC owned the billboard as a matter of law. In light of the conflicting evidence, the trial court erred in granting summary judgment in favor of the appellees.
3. The appellants further contend that the trial court erred in finding that they held only an oral lease allowing the billboard to be placed and maintained on the Property that was subject to termination when the property was sold, rather than a license that had ripened into an easement that ran with the land.
OCGA § 44-9-4 provides that "[a] parol license to use another's land is revocable at any time if its revocation does no harm to the person to whom it has been granted. A parol license is not revocable when the licensee has acted pursuant thereto and in so doing has incurred expense; in such case, it becomes an easement running with the land." In other words, "if the enjoyment of the license must necessarily be preceded by the expenditure of money and the licensee has incurred expense in executing it, the license becomes an agreement for a valuable consideration and the licensee a purchaser for value."
Mize v. McGarity, 293 Ga. App. 714, 717 (1) (667 SE2d 695) (2008) (punctuation and footnote omitted). See also Decker Car Wash v. BP Products &c., 286 Ga. App. 263, 264-266 (649 SE2d 317) (2007) (explaining this limited exception to the Statute of Frauds).
The undisputed evidence in the record shows that Renfroe agreed to allow Sterling to build and operate a billboard on the Property in exchange for a percentage of the advertising revenue. Sterling paid the expenses associated with obtaining the necessary variance and constructing the billboard. The appellees did not produce any evidence to dispute these facts, instead challenging the sufficiency of the evidence produced by the appellants. As we decided in Division 1 (b), the affidavits of Licata, Humphrey, and Renfroe were sufficient to set forth facts that would be admissible in evidence. Those affidavits demonstrated, as a matter of law, that Sterling obtained an irrevocable license because it incurred expense in expectation of enjoying the license.
See Lowe's Home Ctrs. v. Garrison Ridge Shopping Ctr. &c., 283 Ga. App. 854, 855-856 (643 SE2d 288) (2007) (shopping center tenant gained an easement under OCGA § 44-9-4 when it relied on a license granted by the property owner and spent money to construct a brick monument sign).
A jury issue remains, however, as to whether the license ripened into an easement running with the land. As a subsequent purchaser, the LLC can be burdened with an easement only if it had actual or constructive notice of the easement when it took possession of the Property. While the record is devoid of evidence that the easement was recorded, the warranty deed indicates that the Property transferred to the LLC excluded "[a]ll easements, restrictions and other matters of record" and a "[b]illboard located in the southeast corner of the subject property." The location of the billboard at issue here is unclear, and it is also unclear whether the warranty deed excluded only easements "of record" from the property conveyed to the LLC. Thus, whether the LLC had actual notice of an easement is a jury question.
Mize, supra at 718 (2).
A genuine issue of material fact also remains as to whether the LLC had constructive notice of an easement. Katoot attested that he inspected the billboard prior to the LLC's purchase of the Property and saw no evidence of ownership. It appeared that the billboard had not been used for active advertising in "quite some time." According to Katoot, at the time of purchase, the only sign on the billboard was a "tattered," "old and unkempt" sign advertising a nearby restaurant. Whether Katoot's inspection of the billboard put the LLC on constructive notice of an easement is a question for the jury. Thus, the trial court erred in granting summary judgment to the appellees based on a finding that they owned the billboard.
See Lowe's Home Ctrs., supra at 856 ("Whether a feature of a property amounts to a condition sufficient to charge a purchaser with 'reasonable and prudent investigation' is generally a question of fact for the jury. However, when the easement being enjoyed is open and observable to any reasonably prudent person, the question of notice is not one of fact but one of law. [The easement holder] must show, then, that the sign at issue . . . was of such a size or was so unusual as to place a purchaser on notice, as a matter of law, of the presence of an easement.") (punctuation and footnotes omitted).
4. For the same reasons behind our conclusions in Divisions 1 through 3 that jury questions remained regarding the ownership of the billboard and whether the LLC had notice of an easement, we also conclude that the trial court did not err in denying the appellants' motion for summary judgment. Even assuming that the uncertified copy of the 2009 security deed (which granted the lender a security interest in the Property, including "[a]ll . . . structures and improvements," subject to "all easements, covenants and restrictions of record" ) was not admissible evidence, the appellants did not establish that they were entitled to judgment as a matter of law.
See OCGA §§ 24-8-803 (14) (hearsay exception for records of documents affecting an interest in property); 24-10-1005 ("The contents of a public record . . . , if otherwise admissible, may be proved by duplicate, certified as correct . . . or testified to be correct by a witness who has compared it with the original.").
As mentioned above, although the warranty deed excepted the billboard located in the southeast corner of the Property (referencing a survey that was not attached to the warranty deed), the appellants did not present evidence regarding the location of the billboard in question. The record is unclear as to whether there were other billboards on the Property at the time the LLC purchased it. It is also not clear whether the LLC took the Property subject to "all easements" or only "all easements . . . of record." And, there is some evidence that the appellants had abandoned the billboard and easement, which could provide the appellees with a possible defense to the appellants' claims for conversion and trespass. A jury question thus remained on the ownership of the billboard and the issue of whether the LLC took the Property with actual or constructive notice of an easement.
See Deal v. Coleman, 294 Ga. 170, 173-174 (1) (a) (751 SE2d 337) (2013) (noting that "courts sometimes refer to the rules of English grammar, inasmuch as those rules are the guideposts by which ordinary speakers of the English language commonly structure their words," and noting the rule that "[r]eferential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent") (citations and punctuation omitted).
See Donald Azar, Inc. v. Muche, 326 Ga. App. 726, 729 (1) (761 SE2d 345) (2014) ("[A]n easement may be lost by abandonment or forfeited by nonuse if the abandonment or nonuse continues for a term sufficient to raise the presumption of release or abandonment. No presumption of abandonment arises from mere nonuse for a time of less than 20 years, as a matter of law. Although where an easement has been acquired by grant, a mere nonuse, without further evidence of an intent to abandon it, will not constitute an abandonment, intent to abandon can be established with evidence of a clear, unequivocal and decisive character. The issue is one for the factfinder to decide.") (punctuation and footnote omitted; emphasis in original). --------
In sum, we conclude that the trial court erred in granting the appellees' motion for summary judgment, but properly denied the appellants' motion for summary judgment.
Judgment affirmed in part and reversed in part. Dillard, P. J., and Bethel, J., concur.