After Etowah Valley Sporting Clay Park, LLC leased land from Dawson County, the County sought to terminate the lease. Etowah Valley appeals the trial court’s determination on motion for summary judgment that the County validly exercised its right of termination. Because we agree with Etowah Valley that the language of the termination clause at issue is ambiguous, we reverse. On appeal from a motion for summary judgment, we view the evidence in a light most favorable to the non-moving party and conduct a de novo review of the law and the evidence.1 Summary judgment should be granted only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.2 Viewed in a light favorable to Etowah Valley, the evidence shows that in April 2005, the parties3 entered into a 25-year lease whereby Etowah Valley would lease 150 acres from the County for the operation of a sporting clays4 and archery course. The Lease contains the following provision: 22. Compliance with OCGA § 36-60-13 Or Any Amendment Thereto. This Contract shall terminate absolutely and without further obligation on the part of Dawson County at the close of the calendar year in which the Agreement is executed and at the close of each succeeding calendar year for which this Agreement may be renewed, but this Contract shall be automatically renewed unless positive action is taken by Dawson County to terminate such contract by providing sixty 60 days written notice to the Lessee and paying Lessee non-depreciated value of assets affixed to the realty. Title to any supplies, materials, equipment, or other personal property shall remain in the Lessee until fully paid. This Contract shall terminate immediately and absolutely at such time as appropriated and otherwise unobligated funds are no longer available to satisfy any obligation of Dawson County under the terms of this Contract. hereinafter “Paragraph 22″ The provisions of this paragraph generally track the language of OCGA § 36-60-13, which governs “multiyear lease, purchase, or lease purchase contracts of all kinds for the acquisition of goods, materials, real and personal property, services, and supplies” by a county or municipality.5 The Lease contains separate provisions for the termination of the Lease by the County should Etowah Valley default on the terms of the Lease.
A year later, the County filed a complaint against Etowah Valley alleging sound-based nuisance and breach of the lease and seeking injunctive relief and eviction the “First Action”. After a hearing, the trial court denied preliminary relief and held that “Etowah Valley’s gun shooting course cannot be enjoined as a noise generating nuisance” pursuant to OCGA § 41-1-9.6 Before filing the First Action, the County notified Etowah Valley by certified letter of its intent to invoke Paragraph 22 of the Lease and to terminate the lease as of December 31, 2006. On October 25, 2006, the County confirmed in writing its intent to terminate the lease and sent Etowah Valley a check in the amount of $336,000, which it claimed “represents the non-depreciated value of assets affixed to the realty as set forth in the enclosed appraisal analysis.” Etowah Valley returned the check to the County. In January 2007, the County brought a dispossessory action against Etowah Valley based on its right of termination under Paragraph 22 of the Lease the “Second Action”.
