SECOND DIVISION

ANDREWS, P. J.,

MCFADDEN and RAY, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

October 9, 2014

In the Court of Appeals of Georgia

A14A0999. PENNINGTON et al. v. GWINNETT COUNTY,

GEORGIA.

MCFADDEN, Judge.

Steve and Brenda Pennington appeal the trial court’s grant of summary

judgment to Gwinnett County in the Penningtons’ action seeking compensation for

the loss of a business opportunity. The Penningtons argue that the county’s

interference scuttled their deal with T-Mobile South LLC under which T-Mobile

intended to lease a portion of their property for the installation of a cell phone tower.

They argue that this interference resulted in a taking and amounted to an inverse

condemnation. But because the evidence is undisputed that the Penningtons merely

had an option contract with T-Mobile and that T-Mobile decided not to exercise that
option, as was its right, the Penningtons have not shown a taking or an inverse

condemnation. We therefore affirm.

A trial court may grant summary judgment when there is no genuine issue as

to any material fact and the moving party is entitled to a judgment as a matter of law.

OCGA § 9-11-56 (c). “We review the grant or denial of a motion for summary

judgment de novo, and we must view the evidence, and all reasonable inferences

drawn therefrom, in the light most favorable to the nonmovant.” City of Tybee Island

v. Live Oak Group, LLC, 324 Ga. App. 476, 477 (751 SE2d 123) (2013) (citation

omitted).

1. Facts.

Viewed in the light most favorable to the Penningtons as nonmovants, the

record shows that on May 21, 2008, the Penningtons entered a contract with TMobile granting T-Mobile the option to lease a portion of the Penningtons’ property

for the installation of a cell phone tower. The contract was entitled “Site Lease with

Option.” The contract specified that in exchange for T-Mobile’s payment of $1,000,

the Penningtons granted T-Mobile “an option to lease” a portion of their property,

that this option was “for an initial term of twelve (12) months,” and that T-Mobile

could extend the option period by an additional twelve months “upon written notice

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and payment” of an additional $1,000. It provided that T-Mobile “may exercise the

Option” by notifying the Penningtonsin writing and that “[i]f [T-Mobile] exercise[d]

the Option, then [the Penningtons][t]hereby lease[d]to [T-Mobile]that portion of the

Property sufficient for placement of the Antenna Facilities. . . .” A separate document,

entitled “Owner Authorization Agreement,” was signed by Brenda Pennington,

granted T-Mobile the right to enter the Penningtons’ property, and provided that

“EACH PARTY ACKNOWLEDGES THAT THE OTHER HAS MADE NO

REPRESENTATIONS OR COMMITMENTS THAT A LEASE AGREEMENT

CONCERNING THE PROPERTY WILL BE ENTERED INTO IN THE FUTURE.”

(Capitalization in original.) T-Mobile extended the option for a total of three years,

each time paying additional compensation to the Penningtons. 

Within a month of entering the Site Lease with Option, T-Mobile filed with the

Gwinnett County Department of Planning and Development an application to place

the cell tower on the Penningtons’ property. At T-Mobile’s request, consideration of

the application was tabled more than 20 times, until April 26, 2011, when the

application was denied, also at T-Mobile’s request. In the meantime, in April 2009,

the county amended its policy to allow the placement of cell phone towers on county

property, and on November 2, 2009, T-Mobile formally requested that Gwinnett

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County consider entering into a lease for placement of the tower at a county park near

the Penningtons’ property. T-Mobile and Gwinnett County entered such lease on

January 25, 2011. 

The Penningtons filed this lawsuit, alleging that Gwinnett County confiscated

the value of their lease with T-Mobile, which constituted an improper taking by

inverse condemnation. They also alleged that Gwinnett County tortiously interfered

in their dealings with T-Mobile. 

The trial court granted the county’s motion for summary judgment. The court

ruled that sovereign immunity barred the Penningtons’ tortious interference claim

against the county; that the Penningtons’ inverse condemnation claim failed on the

merits because they had no compensable interest in the lease part of the option

contract, since it was within T-Mobile’s discretion whether or not to exercise the

option; that because T-Mobile chose not to exercise the option, the Penningtons could

not show that they had sustained a loss compensable under their theory of inverse

condemnation; and that the Penningtons’ claims were time barred.

The Penningtons appeal only the grant of summary judgment on their inverse

condemnation claim. They argue that the trial court erred by failing to acknowledge

they were pursuing an inverse condemnation claim; by concluding they had no

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property interest that wastaken, given the nature of an option contract; by finding that

their damages were too speculative; and by determining that their claims were time

barred.

2. The Penningtons had no property interest that was taken.

The Penningtons argue that the trial court erred by holding that they could not

pursue their inverse condemnation claim because T-Mobile had sole discretion

whether to exercise the option. We disagree. 

Inverse condemnation “is not limited to a taking of real property, but it applies

only if the complaining party has a valid property interest in that which is taken.”

Brown v. Penland Const. Co., 276 Ga. App. 522, 525 (1) (623 SE2d 717) (2005),

reversed in part on other grounds, 281 Ga. 625 (641 SE2d 522) (2007). The

Penningtons have not shown that they had a valid property interest in that which was

allegedly taken. They describe the thing taken asthe “business opportunity of leasing

a portion of their property to T-Mobile for erection of and use of a cell phone tower;”

“the business opportunity of placing a cell tower” on their lot; and “the business

opportunity . . . of developing their property.” But the Penningtons never had a lease

with T-Mobile. They merely had an expectation of a lease, which was extinguished

when T-Mobile chose not to exercise its option, as was its right. In the trial court, the

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Penningtons stipulated that the agreement was an option contract that granted TMobile complete discretion whether or not to lease the Penningtons’ property. And

they acknowledge that they received compensation for granting the option and its

renewal.

A contract is not compensable when it merely confers a contingent, future

right.Coastal Water &Sewerage Co. v. Effingham County Indus. Dev. Auth., 288 Ga.

App. 422, 424 (654 SE2d 236) (2007). “[The Penningtons have] done no more than

prove that a prospective business opportunity was lost. More than that is necessary

to constitute a compensable taking.” Id. at 428 (punctuation omitted) (citing United

States v. Grand River Dam Auth., 360 U. S. 229, 236 (80 SCt 1134, 4 LE2d 1186)

(1960)). See also State Bd. of Educ. v. Drury, 263 Ga. 429 (437 SE2d 290) (1993)

(teachers who were denied renewable teaching certificates under invalidly

promulgated regulations were not entitled to recover damages under the taking

provision of the state Constitution, since they did not have a property interest in

renewable teaching certificates that were never issued to them).

3. Remaining enumerations of error. 

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Given our holding that the Penningtons had no property right that was taken,

we do not reach their remaining enumerations of error. See Jenkins v. Dept. of

Corrections, 238 Ga. App. 336, 340 (2) (518 SE2d 730) (1999).

Judgment affirmed. Andrews, P. J., and Ray, J., concur.

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