Duffett v. E & W Props., Inc., 430 S.E.2d 858 (Ga. Ct. App. 1993). · Go Syfert
Duffett v. E & W Props., Inc., 430 S.E.2d 858 (Ga. Ct. App. 1993). Cases Citing This Book View Copy Cite
71 citation events (34 in the last 25 years) across 4 distinct courts.
Strongest positive: Kelley v. BLUE LINE CARRIERS, LLC (gactapp, 2009-10-23)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 27 distinct citers.
discussed Cited as authority (rule) Kelley v. BLUE LINE CARRIERS, LLC
Ga. Ct. App. · 2009 · confidence medium
Given our ruling below - that the Subrogation Receipt presents a jury question - this issue is moot. 10 Although the two documents show different amounts that Everest paid to Kelley, the difference is irrelevant to the issues raised on appeal. 11 (Emphasis supplied.) 12 (Citations and punctuation omitted.) Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ) (1993). 13 (Punctuation and footnote omitted.) Oglethorpe Power Corp. v. Hartwell Energy Ltd.
discussed Cited as authority (rule) Morrison v. Morrison
Ga. Ct. App. · 2009 · confidence medium
(Citations and punctuation omitted.) Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ) (1993). 15 See generally Hargrove v. Armour Fertilizer Works, 31 Ga. App. 465 ( 120 SE 800 ) (1923).
discussed Cited as authority (rule) National Service Industries, Inc. v. Georgia Power Co.
Ga. Ct. App. · 2008 · confidence medium
Co. v. Pat’s Rentals, 269 Ga. 691 , 693 *813 ( 505 SE2d 729 ) (1998) (unambiguous terms of contract require no construction, and their plain meaning must be given full effect). 5 Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ) (1993) (the cardinal rule of contract construction is to ascertain the intention of the parties, and a jury question arises only when there is an ambiguity in the contract that cannot be negated by the court’s application of the statutory rules of construction). 6 See The Virginia Ins.
discussed Cited as authority (rule) Alimenta (USA), Inc. v. Oil Seed South, LLC
Ga. Ct. App. · 2005 · confidence medium
“Further, a contract should be construed by examining the agreement in its entirety, and not merely by examining isolated clauses and provisions thereof. [Cits.]” Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ) (1993).
discussed Cited as authority (rule) Hendon Properties, LLC v. Cinema Development, LLC
Ga. Ct. App. · 2005 · confidence medium
Group, LLC v. MACI, LLC, 263 Ga. App. 155, 157 (1) (b) ( 587 SE2d 364 ) (2003) (citation omitted). 22 Marquis Towers v. Highland Group, 265 Ga. App. 343, 346 ( 593 SE2d 903 ) (2004) (punctuation omitted). 23 Real Estate Intl. v. Buggay, 220 Ga. App. 449, 452 (3) ( 469 SE2d 242 ) (1996). 24 251 Ga. App. 101, 103 (1) ( 553 SE2d 638 ) (2001). 25 235 Ga. App. 283, 286 (2) ( 508 SE2d 666 ) (1998). 26 Supra. 27 256 Ga. 129 , 134-135 (6), (7) ( 345 SE2d 330 ) (1986). 28 See Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 ( 300 SE2d 503 ) (1983). 29 Gerdes, supra at 232 Ga. App. 537 (3)…
examined Cited as authority (rule) ESI Companies, Inc. v. Fulton County (3×) also: Cited "see"
Ga. Ct. App. · 2004 · confidence medium
Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ) (1993); see generally Travelers Ins.
discussed Cited as authority (rule) Mountain Aire Realty, Inc. v. BIRDIE WHITE ENTERPRISES, INC.
Ga. Ct. App. · 2004 · confidence medium
Blackburn, P. J., and Ellington, J., concur. 1 (Citations and punctuation omitted.) Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ) (1993). 2 (Citation and punctuation omitted.) Friedman v. Friedman, 259 Ga. 530, 532 (3) ( 384 SE2d 641 ) (1989), disapproved on other grounds, Duckworth v. State, 268 Ga. 566, 569 (1) ( 492 SE2d 201 ) (1997).
cited Cited as authority (rule) In Re Thomaston Mills, Inc.
Bankr. M.D. Ga. · 2003 · confidence medium
Properties, 208 Ga.App. 484, 486 (2), 430 S.E.2d 858 (1993). 509 S.E.2d at 344.
discussed Cited as authority (rule) Lowe Enterprises Residential Partners, L.P. v. Eighth Judicial District Court of the State of Nevada
Nev. · 2002 · confidence medium
Zitter, Contractual Jury Trial Waivers in State Civil Cases, *99 42 A.L.R. 5th 53 -135 (1996) (exhaustive annotation discussing state civil cases in which the courts have considered the validity of pre-litigation contractual jury trial waivers). 17 See Trizec Properties v. Superior Court, 280 Cal. Rptr. 885, 887 (Ct. App. 1991) (holding that the enforcement of contractual jury trial waivers best serves the needs of the contracting parties and the overburdened court system). 18 444 S.E.2d 799, 800 (Ga. 1994). 19 Id. 20 Id. 21 Id. 22 Id. at 800-02 (Sears-Collins, J., dissenting). 23 Id. at 801 (…
discussed Cited as authority (rule) Booker v. Hall
Ga. Ct. App. · 2001 · confidence medium
Contractual ambiguity is not indicated upon encountering difficulty in construing a contract, unless after the pertinent rules of construction are applied, among them the requirement that a contract be construed as a whole, see OCGA § 13-2-2 (4); Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ) (1993), and uncertainty remains as to which of two or more possible meanings represents the true intention of the parties.
cited Cited as authority (rule) Sage Technology, Inc. v. NationsBank N.A. South
Ga. Ct. App. · 1998 · confidence medium
(Cits.)’ Duffett v.E&W Prop., 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ).” Richard Haney Ford, Inc. v. Ford Dealer Computer Svcs., 218 Ga. App. 315, 316 (1) (b) ( 461 SE2d 282 ).
discussed Cited as authority (rule) Boland v. Georgia Eye Institute, Inc.
Ga. Ct. App. · 1998 · confidence medium
Finally, a jury question arises only when there appears to be an ambiguity in the contract which cannot be negated by the court’s application of the statutory rules of construction. . . . [A] contract should be construed by examining the agreement in its entirety, and not merely by examining isolated clauses and provisions thereof.” (Citations and punctuation omitted.) Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ) (1993).
cited Cited as authority (rule) Techwerks, Inc. v. Retail Technologies Corp.
Ga. Ct. App. · 1998 · confidence medium
Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ).
discussed Cited as authority (rule) Gill v. B & R International, Inc.
Ga. Ct. App. · 1998 · confidence medium
Only if after applying these rules of construction it is unclear which of two or more possible meanings represents the true intent of the parties should the issue be declared ambiguous and delivered to the jury.” (Citations omitted.) In construing oral and written contracts, the court should apply the appropriate three-step process of contract construction discussed in Duffett v. E & W Prop., 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ) (1993).
cited Cited as authority (rule) Heard v. Whitehall Forest East Homeowners Ass'n
Ga. Ct. App. · 1997 · confidence medium
In Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ) (1993), we applied the rules of contract construction to certain covenants in a subdivision declaration.
cited Cited as authority (rule) Gibbs v. Dodson
Ga. Ct. App. · 1997 · confidence medium
Duffett v. E & W Properties, 208 Ga. App. 484, 487 (2) ( 430 SE2d 858 ).
cited Cited as authority (rule) Gold Kist, Inc. v. Wilson
Ga. Ct. App. · 1997 · confidence medium
Richard Haney Ford, Inc. v. Ford Dealer Computer Svcs., 218 Ga. App. 315, 316 (1) (b) ( 461 SE2d 282 ); Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ).
discussed Cited as authority (rule) Jones v. Destiny Industries, Inc. (2×) also: Cited "see"
Ga. Ct. App. · 1997 · confidence medium
Properties, 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ).
cited Cited as authority (rule) Controlled Blasting, Inc. v. Ranger Insurance
Ga. Ct. App. · 1997 · confidence medium
Properties, 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ); American Southern Ins.
discussed Cited as authority (rule) State Farm Fire & Casualty Co. v. American Hardware Mutual Insurance (2×)
Ga. Ct. App. · 1997 · confidence medium
Generally it is the duty of the court to construe the terms of a contract applying the three-step process discussed in Duffett v. E & W Properties, 208 Ga.App. 484, 486 (2), 430 S.E.2d 858 ; a jury *717 question arises (as to contract construction) only when there appears to be an ambiguity in the contract which cannot be negated by the court's application of the statutory rules of construction.
discussed Cited as authority (rule) Richard Haney Ford, Inc. v. Ford Dealer Computer Services
Ga. Ct. App. · 1995 · confidence medium
First, if no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction. [Cits.] That is, where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. [Cit.] Secondly, if ambiguity does appear, ‘[t]he existence or non-existence of an ambiguity is itself a question of law for the court. [Cits.] [Finally, a] jury question arises only when there appears to be an ambiguity in the contract which cannot be negated by the court’s…
discussed Cited as authority (rule) Bank South, N.A. v. Howard
Ga. · 1994 · confidence medium
In this regard, “[p]arties are free, except as prohibited by statute or public policy, to contract on any terms and about any subject matter they so desire,” Duffett v. E & W Properties, 208 Ga. App. 484, 487 ( 430 SE2d 858 ) (1993), and any “impairment of that right [to contract] must be specifically expressed or necessarily implied by the legislature in a statutory prohibition and not left to speculation,” Porubiansky v. Emory Univ., 156 Ga. App. 602, 603 ( 275 SE2d 163 ) (1980), aff’d 248 Ga. 391 ( 282 SE2d 903 ) (1981).
discussed Cited as authority (rule) Johnston v. Almand
Ga. Ct. App. · 1994 · confidence medium
First, if no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction. [Cits.] That is, where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. [Cit.]” Duffett v. E & W Properties, 208 Ga. App. 484, 486 ( 430 SE2d 858 ) (1993).
discussed Cited "see" Crawford v. Dammann (2×)
Ga. Ct. App. · 2006 · signal: accord · confidence high
Accord Foster v. Ohlwiler, 266 Ga. App. 371, 376 (1) (b) ( 597 SE2d 481 ) (2004). 5 (Citations omitted.) Netherland, supra. 6 (Citations omitted.) Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ) (1993).
discussed Cited "see" Lodgenet Entertainment Corp. v. Heritage Inn Associates (2×)
Ga. Ct. App. · 2003 · signal: see · confidence high
See Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ) (1993).
examined Cited "see, e.g." WEINSTOCK & SCAVO, P.C. v. OTS, INC. D/B/A OMNI TECH SOLUTIONS (3×)
Ga. Ct. App. · 2016 · signal: compare · confidence medium
Compare with Hart, 291 Ga. App. at 209 (1) (discovery failures may not be remedied by the exclusion of probative trial evidence). 16 (Citations and punctuation omitted.) White v. Ga. Power Co., 265 Ga. App. 664, 664-665 ( 595 SE2d 353 ) (2004). 17 (Citations and punctuations omitted.) Duffett v. E&W Properties, 208 Ga. App. 484, 486 (2) ( 430 SE2d 858 ) (1993). 18 See id. 19 249 Ga. 588 ( 292 SE2d 705 ) (1982). 20 See id. at 589 . 21 See Weir v. Kirby Constr.
examined Cited "see, e.g." Chattahoochee Chase Condominium Ass'n v. Ruben (4×)
Ga. Ct. App. · 1996 · signal: see also · confidence low
The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction; if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity." (Citations and punctuation omitted.) Gram Corp. v. Wilkinson, 210 Ga.App. 680, 681 , 437 S.E.2d 341 (1993); see also Duffett v. E & W Properties, 208 Ga.App. 484, 486 , 430 S.E.2d 858 (1993) (applying this rule to real estate covenants).
DUFFETT Et Al.
v.
E & W PROPERTIES, INC.
A93A0243.
Court of Appeals of Georgia.
Apr 15, 1993.
430 S.E.2d 858
Dean A. Williams, for appellants., Wendell T. Dawson, for appellee.
Birdsong, Pope, Andrews.
Cited by 30 opinions  |  Published
Birdsong, Presiding Judge.

Appellant Kay O. Duffett and other homeowners brought suit seeking to enforce, against appellee developer, the assessment provisions contained in a Declaration of Protective Covenants for Ashland Subdivision (covenants). Appellee filed a motion to dismiss or in the alternative motion for judgment on the pleadings, and the trial court partially granted the alternative motion for judgment on the pleadings. The trial court made its order final under the provisions of OCGA § 9-11-54 (b).

Appellants’ sole enumeration of error is that the trial court erred in holding that the language of the covenants was unambiguous and that appellee, as developer, is not liable to pay an annual assessment for the installation and operation of street lights, and for landscaping[*485] and maintenance of common subdivision areas. Appellants contend the pertinent covenant language is ambiguous, even after application of rules of contract construction, thereby necessitating interpretation of the covenant provision by the jury.

The covenants, drafted by appellee, pertinently provide: “A fee, $10.00 per month initially, will be assessed to each lot owner to go to a fund to be used for the installation and operation of street lights and for landscaping and maintenance of common areas of the subdivision including irrigation. All purchasers and subsequent purchasers of lots subject to these covenants agree to pay said fee and make payments according to the following terms . . . (B) Payment for the calendar year of sale will be made when the lot owner takes title to the property, prorated to the end of the calendar year . . . (C) Payment shall be made to the Ashland Lighting and Maintenance Account in care of the bank designated by the Committee responsible for same; (D) Administration of the account will be the responsibility of a committee of three members elected by the lot owners with an owner having a vote for each lot owned. Owner shall have the option of administering the account until seventy-five percent (75%) of the lots are sold.” The covenants also provided in the preamble thereof that appellee shall hereinafter be referred to as “Owner.”

Appellants asserted in their complaint that appellee is a “lot owner,” as defined in the above covenant provisions, and therefore stands on the same footing as other lot owners regarding these assessments. Appellants also asserted therein that appellee elected the option of administering the lighting and maintenance account and, further, that the covenants did not exempt appellee from payments of assessments. Appellee/developer admitted in its answer that it has not paid any assessments for the subdivision lots it owns. Held-.

1. Initially we conclude the trial court correctly determined it could grant a partial motion for judgment on the pleadings, as to the claim of appellee’s alleged failure to pay the assessments in issue, notwithstanding that, although this claim was one of several averred in the complaint, it was not listed in a separate and distinct pleading count. See generally OCGA § 15-6-8 (6). “A motion for judgment on the pleadings is closely related to a motion for summary judgment.” (Dukes v. Joyner, 234 Ga. 526 (1) (216 SE2d 822)), and there exists express statutory authorization to grant partial summary judgment as to a claim. OCGA § 9-11-56 (b). It is a claim within a count and not the procedural count itself which is the real subject of motions for partial summary judgment or motions on the pleadings directed as to partial claims. Compare First Nat. Bank &c. v. Osborne, 233 Ga. 602, 604 (1) (212 SE2d 785) with Fagala v. Morrison, 146 Ga. App. 377, 378 (2) (246 SE2d 408); cf. Spafford v. Maseroni, 186 Ga. App. 290, 291 (367 SE2d 102) (error to deny motion for partial judgment on[*486] pleadings where pleadings affirmatively show that no claim in fact existed as to Counts 2 and 3 thereof).

2. “The cardinal rule of [contract] construction is to ascertain the intention of the parties.” OCGA § 13-2-3. Contract construction is a three-step process. Initially, the construction of the contract is a question of law for the court. First, if no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction. See generally Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308); Karlan, Inc. v. King, 202 Ga. App. 713, 715 (1) (415 SE2d 319). That is, where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. Howell Mill-Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 173 (3) (390 SE2d 257). Secondly, if ambiguity does appear, “[t]he existence or non-existence of an ambiguity is itself a question of law for the court. [Cits.] [Finally, a] jury question arises only when there appears to be an ambiguity in the contract which cannot be negated by the court’s application of the statutory rules of construction.” Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (2) (381 SE2d 322). This is true even if the contract is difficult to construe. Id. Further, a contract should be construed by examining the agreement in its entirety, and not merely by examining isolated clauses and provisions thereof. See OCGA § 13-2-2 (4); C. B. I. Na-Con v. Macon-Bibb County Water &c. Auth., 205 Ga. App. 82, 83 (421 SE2d 111).

The trial court found a consistent reference throughout the covenants to the appellee/subdivider as the “owner” and to the purchasers of the lots from the owner and their successors in title as “lot owners” or “purchasers”; and concluded that, under these circumstances, the crucial language of the covenant in question (paragraph 25) imposed the assessment at issue on each “lot owner.” The trial court therefore construed the covenants as imposing the assessment only on lots which have been sold by appellee/subdivider to third parties, and as imposing no contractual liability on the part of appellee to pay an assessment on lots owned by it. Examining the contract in its entirety, we are satisfied the trial court construed the contract consistent with the intention of the parties, and that after such construction, no ambiguity remained which would give rise to a jury issue. As the covenants, as a matter of law, did not impose any duty on appellee to pay the assessment, any averment in the complaint grounded upon such a claim would be subject to a judgment on the pleadings; the trial court did not err in directing “the entry of a final judgment to the effect that the defendant (the subdivider, or ‘owner’) is not liable to pay an annual assessment for the installation and operation of street lights and for landscaping and maintenance of common areas in the subdivision.”

[*487] Decided April 15, 1993. Dean A. Williams, for appellants. Wendell T. Dawson, for appellee.

Parties are free, except as prohibited by statute or public policy, to contract on any terms and about any subject matter they so desire; any statutory impairment of the right to contract must be specifically expressed or necessarily implied by the legislature in a statutory prohibition, and cannot be grounded on mere speculation. Porubiansky v. Emory Univ., 156 Ga. App. 602, 603 (275 SE2d 163), aff’d 248 Ga. 391 (282 SE2d 903). We find unpersuasive appellants’ various arguments that the interpretation placed upon the covenants by the trial court violated either public policy or statute. Any statutory provisions contained in the Georgia Condominium Act, OCGA § 44-3-70 et seq., are inapplicable to the protective covenants pertaining to Ashland subdivision; in fact, the record does not establish that any condominiums are located within Ashland.

Appellants assert that an issue of estoppel would be created by any contention by appellee that it was a “lot owner” for voting purposes but not for purposes of assessment. As this issue has not been reasonably raised by enumeration of error, it cannot be considered on appeal. Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371, 373 (2) (367 SE2d 272).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.