Neely Dev. Corp. v. Sevice First Invs. Inc.

Defendant's obligation to execute a restrictive covenant survived the parties' real estate closing where they executed an Addendum and Acknowledgement, which expressly and unambiguously provided that any unsatisfied obligations in the parties' real estate contract would survive.

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Service First Investments, Inc. Service filed suit against Neely Development Corporation Neely primarily to obtain specific performance of a provision in a real estate contract that required Neely to execute a restrictive covenant. After Neely and Service stipulated to the absence of disputed facts, the trial court awarded summary judgment to Service. In this appeal, Neely contends that the trial court misapplied the applicable law, and genuine issues of material fact foreclosed summary judgment. We disagree. The determinative issue is a question of contract law, i.e. whether Neely’s obligation to execute a restrictive covenant on Service’s behalf survived the real estate closing. After reviewing the controlling documents, we find the obligation did so and affirm. The dispositive legal issue arose from the following undisputed facts. On June 8, 1999, Service and Neely entered into a written Purchase and Sale Agreement in which Neely agreed to sell certain undeveloped land at the intersection of Highway 34 and Sullivan Road in Coweta County. The parcel was part of a larger tract that Neely owned and was developing for commercial use. Service acquired the land in order to construct a gasoline service station/convenience store and car wash.

Section 7 a of the Agreement entitled “Contingencies,” stated: “Buyer’s obligations under this Agreement are expressly conditioned upon the following four numbered provisions to be accomplished by Seller and Buyer before closing.” The second obligation, Section 7 a 2, is the one Neely now disputes. It required the “execution by Seller of a restrictive covenant in favor of Buyer authorizing Buyer to be the only convenience store gas station and automated car wash in the development depicted on Exhibit ‘A,’ attached hereto and incorporated herein by reference.”

Neely Dev. Corp. v. Sevice First Invs. Inc.

Defendant's obligation to execute a restrictive covenant survived the parties' real estate closing where they executed an Addendum and Acknowledgement, which expressly and unambiguously provided that any unsatisfied obligations in the parties' real estate contract would survive.

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