Dillon v. Reid

11 FCDR 3207

312 Ga.App. 34

717 S.E.2d 542

DILLON et al.

v.REID.

No. A11A1492.

Court of Appeals of Georgia.

Oct. 13, 2011.

Kaufman, Miller & Sivertsen, Robert J. Kaufman, Jeremy Bret Liebman, Jordan Bradley Forman, Atlanta, for appellants.

Miles, Patterson, Hansford & Tallant, Dana B. Miles, Wendy Wolfenbarger Kraby, Cumming, Jefferson Mulloy Starr, for appellee.

MILLER, Presiding Judge.

Danny L. Reid and his neighbors, Michael W. and Jennifer T. Dillon, own property abutting Lake Lanier. Reid sued the Dillons claiming that they were in breach of an agreement, made for the express and direct benefit of Reid, to place their floating dock 132 feet away from a certain existing dock (the “Lot 10 dock”). Reid claimed that the Dillons had moved their floating dock so close to the Lot 10 dock that Reid could not receive a permit from the Army Corps of Engineers (the “Corps”) to place his own dock between the Dillons' dock and the Lot 10 dock. Following a hearing, the trial court granted Reid's motion for an interlocutory injunction and ordered the Dillons to move their dock so that it was no closer than 132 feet from the Lot 10 dock, consistent with the terms of the agreement. The Dillons appeal, and we affirm because the trial court did not abuse its discretion in balancing the equities and granting the injunction, thereby preserving Reid's opportunity to apply for a dock permit before the deadline for doing so expired.

The evidence shows that on July 7, 2003, the Dillons entered into a Lot/Land Purchase and Sales Agreement with Bill Barnett, manager of Ivy Shaw, LLC. Under the terms of the Sale Agreement, the Dillons agreed to buy Lot 2 of the Ivy Shaw Landing subdivision in Forsyth County. Lot 2 included a fee simple “walking path” to Lake Lanier intended to provide access to the water and to qualify the property for a boat dock.

The Sale Agreement was subject to several special stipulations, including that it was contingent upon verbal approval of the Corps for placement of a 32 foot by 32 foot double slip boat dock. Barnett and the Dillons met with a Corps ranger at the proposed dock site before closing. The ranger verbally approved the dock location, which she marked by tying a ribbon around a tree near the shore line.

The special stipulation also required the Dillons to submit to the “seller and or Developers a site plan showing the exact location of a 32x32 double slip boat dock.” For purposes of water access, Lot 2 was adjacent to Lot 1, which was then owned by Ivy Shaw; Lot 1 was adjacent to Lot 10. According to Barnett, the site plan was important because there needed to be enough space, consistent with Corps rules, to place a boat dock for Lot 1 between the Lot 2 dock and the Lot 10 dock. The Corps' shoreline management plan for Lake Lanier required a 50–foot buffer area between any proposed floating dock and any existing facility, measured by the nearest point between them.

Shortly before closing, the Dillons submitted a site plan showing the location of the Lot 2 dock. The plan depicted a dock labeled “Future 32x32 (Lot 1),” with a 50–foot buffer space on each side between the site of the Lot 2 dock and the existing Lot 10 dock, such that there was 132 feet between the closest point of the site of the Lot 2 dock and the Lot 10 dock. The site plan was signed by Michael Dillon and Barnett on July 29, 2003, and on that same date Lot 2 was deeded by Ivy Shaw to the Dillons. On September 2, 2003, the Dillons placed their dock in line with the ranger's ribbon.

On or about March 21, 2005, Reid bought Lot 1 from Ivy Shaw. In 2007, Reid asked his son, Brad Reid, to assist him in obtaining a dock permit from the Corps. Brad Reid discovered that the Dillons' dock was too close to the Lot 10 dock to allow for the Lot 1 dock to be placed between the two. In July 2007, after some unsuccessful discussions with Michael Dillon, Brad Reid formally demanded that the Dillons move their dock so it was no less than 132 feet from the Lot 10 dock. The Dillons refused to move their dock. That same year, the Corps placed a moratorium on the permitting of new docks, and Reid did not pursue the matter until after Reid was selected by the Corps in a 2009 lottery to apply for a dock permit.

As of 2010, the distance between the closest point of the Lot 2 dock and the Lot 10 dock was approximately 100 feet. Michael Dillon admitted to having moved the dock, but only to “chase the water” when the lake level dropped as allowed by Corps rules.¹ According to Brad Reid, however, the Dillons were “moving [the dock] down the shoreline.”

On February 25, 2010, Reid sued the Dillons in the Superior Court of Forsyth County for breach of contract, injunction, and damages in light of the Dillons' failure to locate their dock in accordance with the Sale Agreement. On October 25, 2010, the trial court held an evidentiary hearing to consider Reid's motion for an interlocutory injunction. The trial court found that (i) the Dillons remained bound by the terms of the Sale Agreement to fulfill conditions and stipulations not fulfilled prior to or at the closing; (ii) Reid was a third–party beneficiary of the Sale Agreement; (iii) the Dillons' failure to locate their dock at least 132 feet from the Lot 10 dock was a breach of contract; and (iv) the breach damaged Reid by preventing him from having his dock permit approved by the Corps. The trial court ordered the Dillons to move their dock to a location no closer than 132 feet from the closest point of the Lot 10 dock pursuant to the Sale Agreement.

1. As a threshold matter, we address the Dillons' claim that “the trial court lacked subject matter jurisdiction due to federal preemption, [and] it should have dismissed [Reid's] case.” ² We disagree.

“The nature of any specific preemption claim will depend on congressional intent in enacting the particular preempting statute.” (Punctuation omitted.) Intl. Longshoremen's Assn. v. Davis, 476 U.S. 380, 391(II)(B), n. 9, 106 S.Ct. 1904, 90 L.Ed.2d 389 (1986). “[T]his Court reviews de novo whether federal law preempts state law claims.” (Citation omitted.) Gentry v. Volkswagen of America, 238 Ga.App. 785, 786, 521 S.E.2d 13 (1999). Reid presents a breach of contract claim based upon provisions of the Sale Agreement entered into by the Dillons, as well as a claim for injunctive relief, and the superior court has “jurisdiction in all cases, except as otherwise provided in [the Georgia] Constitution,” Ga. Const. of 1983, Art. VI, Sec. IV, Par. I, and authority “[t]o exercise the powers of a court of equity[.]” OCGA § 15–6–8(2). The Dillons do not point to any federal law that would preempt the trial court as an appropriate forum for adjudicating the rights and remedies of the parties in this action. Compare Local No. 438, Construction, etc., Union v. Curry, 371 U.S. 542, 548, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963) (finding “a judgment of the Georgia court finally and erroneously asserting its jurisdiction to deal with a controversy which is beyond its power and instead is within the exclusive domain of the National Labor Relations Board”); Stivali v. Aquiport Aylesbury, 244 Ga.App. 389, 391(1), 535 S.E.2d 551 (2000) (trial court lacked subject matter jurisdiction over claim that appellees violated the terms of the bankruptcy court's order lifting the stay).

Further, we disagree with the Dillons that Congress intended to preempt the trial court's jurisdiction to issue an injunction requiring them, in essence, to move their floating dock approximately 32 feet. As shown by the Dillons, the Corps has authority over the permitting of docks on Lake Lanier, and placement of docks in violation of the terms of a permit is prohibited. See 16 USC § 460d; 36 CFR §§ 327.19(b), 327.20, 327.30. Although not proven, we acknowledge the possibility that the movement of the Dillons' dock would cause them to be in violation of Corps rules and thus cause the loss of their dock, and that such is relevant to the balancing of equities. But it does not follow that the Corps ranger's approval of the dock site precluded the application of Georgia law. For instance, the regulations provide that “[a]ll other Federal, state and local laws and regulations remain in full force and effect where applicable to those water resources development projects.” 36 CFR § 327.0. The Corps also provides in its shoreline management plan for Lake Lanier that “[t]he State of Georgia and its political subdivisions retain statutory responsibility to enforce state and local laws.” Based upon these provisions, we cannot discern a Congressional intent to preclude state action concurrently with the statutory and regulatory scheme establishing the Corps' authority over docks on Lake Lanier. See, e.g., Cummings v. City of Chicago, 188 U.S. 410, 427–431(3), 23 S.Ct. 472, 47 L.Ed. 525 (1903) (although parties had the consent of the Secretary of War to erect a dock in the Calumet River and could not build the dock without such consent, Congress did not intend by the River and Harbor Act of 1899 to supersede the original authority of the States so as to allow the construction of the dock without the concurrent consent of the State of Illinois); Danos v. Thompson, 272 Ga.App. 69, 72(2), 611 S.E.2d 678 (2005) (considering on the merits an injunction precluding appellant from using boat docks or reapplying for future dock permits from Corps).

2. The Dillons claim that the trial court erred in granting the interlocutory injunction, because Reid failed to show that he would be irreparably harmed if the injunction was not granted, and because there was not a substantial likelihood that Reid would prevail on the merits. Again, we disagree.

An interlocutory injunction is designed to preserve the status quo pending a final adjudication of the case, and in so doing, the trial court must balance the conveniences of the parties pending the final adjudication, with consideration being given to whether greater harm...