Adverse possession. Lincoln Superior Court. Before Judge Dunaway.
John R. B. Long, for appellant.
John W. Dunsmore, Jr., for appellee.
Hiawatha Sherman appeals the trial court's grant of summary judgment to the Thomas-Lane American Legion Post 597 (" Post 597" ) on the issue of whether Post 597 had acquired prescriptive title to Sherman's land by possession for more than 20 years under OCGA § 44-5-163. Sherman argues that, because material questions of fact remain, the trial court's decision was in error. For the reasons that [330 Ga.App. 619] follow, we reverse the trial court's order of summary judgment.
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. The movant has the original burden of making this showing.
Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence. In rebutting this prima facie case, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in OCGA § 9-11-56, must set forth specific facts showing that there is a genuine issue for trial. A defendant may meet its burden on a motion for summary judgment by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.
(Citation omitted.) Revocable Trust of Timothy W. Griffin v. Timberlands Holding Co. Atlantic, Inc., 328 Ga.App. 33, 33 (761 S.E.2d 458) (2014).
On April 24, 1976, Post 597 purchased a plot of land known as Lot 3 in the Norris Gunby Subdivision in Lincolnton, Georgia. The property was not surveyed at the time of purchase. Lot 3 adjoins land Sherman has owned since June 9, 2011, which is known as Lot 1. Lot 1 lies to the west of Lot 3. Post 597 alleges that for approximately 35 years, it believed that the western boundary of its property was a chain-link fence approximately 50 feet behind a concrete building that faces Augusta Highway, and that it has exclusively and continuously occupied and maintained the disputed area up to the fence line during that time.
Between 1985 and 1994, Post 597 placed or constructed various structures on the now-disputed parcel. Post 597 built a steel-framed [330 Ga.App. 620] building, which still stands, on the site in 1994. In 2009, because the fence had fallen into disrepair, Post 597 removed it. In 2011, after Sherman purchased the property and had it surveyed, she claimed, inter alia, that the steel-framed building encroached on her land and that Post 597 was trespassing.
On October 5, 2012, Post 597 sought a declaratory judgment stating that it had acquired a prescriptive right of title to approximately 0.25 acres of land, and later moved for summary judgment. After a hearing, which was not transcribed, the trial court granted Post 597's motion for summary judgment and issued a declaratory judgment that it was the lawful owner of the property in question. Sherman appealed.
1. Sherman argues that the trial court erred in finding that she failed to file a response to Post 597's motion for summary judgment until the day of the hearing and, as a result, in finding that Sherman had waived her right to present evidence in opposition to the motion. We find no error.
The hearing on the motion for summary judgment was held on July 30, 2013. The record shows that on July 29, 2013, Sherman filed a document entitled " Response to Material Facts Concerning which Defendant Contends there is a Genuine Issue to be Tried." The next day, half an hour before the hearing was to begin, Sherman ...