McGuire Holdings, LLLP “McGuire” and TSQ Partners, LLC “TSQ” own adjoining commercial lots. McGuire sued TSQ to enforce the terms of an easement agreement governing both parcels, and TSQ filed a counterclaim for trespass. The parties filed cross-motions for summary judgment, and the trial court 1 granted TSQ’s motion for summary judgment as to McGuire’s claim for reimbursement under the easement agreement and 2 denied the parties’ motions as to McGuire’s use of a detention pond located on TSQ’s property. McGuire appeals in Case No. A07A2251, contending that the trial court erred in striking certain affidavits, in granting TSQ’s motion for summary judgment as to its claim for reimbursement, and in denying McGuire’s motion for summary judgment on its claim that it had the right of full access to the detention pond. TSQ appeals in Case No. A07A2252, alleging that the trial court erred in denying its motion for summary judgment as to its claim for trespass and in failing to award TSQ attorney fees arising out of its defense of McGuire’s claim for reimbursement. For reasons that follow, we affirm in part and reverse in part in Case No. A07A2251, and we dismiss Case No. A07A2252 as moot. To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts warrant judgment as a matter of law.1 “We review the evidence and record de novo, construing all reasonable conclusions and inferences in favor of the nonmovant.”2 “However, ‘rules of contract construction and interpretation are separate from those rules allocating burdens of proof at trial and on motion for summary judgment,’ and thus are to be independently applied.”3
So viewed, the evidence shows that Due West, LLC owned property that it subdivided into contiguous Parcels “A” and “B.” TSQ purchased Parcel B from Due West and, in connection with the sale, executed the “Due West Easement Agreement” on August 21, 2002. The Easement Agreement provided that Due West desires to establish hereunder that the development of Parcel B shall be conducted in such manner as to provide easements and development use rights for the benefit of Parcel A for sanitary sewer, stormwater drainage, and access for ingress/egress to the adjacent public roadways. Further, Due West desires to provide hereunder that the responsibility for the installation and cost of improvements for all such easements and development rights shall be allocated specifically to the Parcel B owner , TSQ, for the benefit of the contiguous Parcel A and the owner thereof. The Agreement required TSQ to clear, grade, and fill Parcel A to “an average elevation of approximately 1,067 feet with slope to drain of two percent 2, substantially as shown on the plan.” TSQ was also required to install a sanitary sewer system, a roadway for ingress/egress, and a waterline for the benefit of Parcel A. The Agreement further provided that if TSQ failed to complete its obligations thereunder within twelve months from the execution date of the Agreement, the owner of Parcel A would have the right to make the improvements and to be reimbursed by TSQ upon proof of costs.
