Forsyth County “the county” and Waterscape Services, LLC “Waterscape” entered into a contract under which Waterscape agreed to design and construct a wastewater treatment plant and then to convey the plant to the county after successfully operating the plant for a minimum of three consecutive months. After the plant was constructed and became operational, Waterscape advised that it was terminating the contract because of a dispute regarding a change order, and it refused to convey the plant to the county, leading the county to commence this action for specific performance, breach of contract damages, and expenses of litigation. Waterscape answered and counterclaimed, seeking, among other things, a declaratory judgment that it had validly terminated the contract; a declaratory judgment that Waterscape enjoyed a perpetual easement by estoppel to utilize the county’s permits and wastewater disposal infrastructure; and an injunction preventing the county from stopping Waterscape from using the permits and infrastructure. The trial court denied the county’s motion for summary judgment on its claim for specific performance and on the three counterclaims asserted by Waterscape, and sua sponte granted summary judgment in favor of Waterscape on the counterclaims. The county appeals these summary judgment rulings. For the reasons discussed below, we reverse and remand with direction. Summary judgment is appropriate if the pleadings and evidence 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. On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party. Citations and punctuation omitted. Insurance Co. of the State of Pa. v. APAC-Southeast , 297 Ga. App. 553 677 SE2d 734 2009; see also OCGA § 9-11-56 c. Guided by these principles, we turn to the record in the present case.
Overview of the Agreement. On August 11, 2004, Forsyth County and Waterscape Services, LLC entered into the “Design-Build Agreement in Aid of Construction of a New Waste Water Treatment Plant in Forsyth County, Georgia.” the “agreement”. Waterscape agreed to design and complete construction of a new wastewater treatment facility to serve customers in the James Creek basin in Forsyth County the “facility” within 24 months of execution of the agreement, and then to “donate” the completed facility to the county after a minimum of three consecutive months of successful operation. In return, Waterscape would be compensated out of certain payments made by third-party developers in an amount to exceed $10,000,000, and would be allowed to use the county’s wastewater disposal infrastructure and obtain necessary regulatory permits using the county’s name. For purposes of this appeal, the most relevant contractual provisions are those governing 1 Waterscape’s payment arrangement; 2 the permitting process and related termination provision; 3 Waterscape’s obligation to “donate” the facility to the county; and 4 the county’s right to “buy out” Waterscape’s residual compensation rights at the time of donation.
