Easement. Cobb Superior Court. Before Judge Flournoy.
Russell H. Hippe III, for appellant.
Antonio L. Thomas, O'Dell & O'Neal, Justin B. O'Dell, Maner Crumly Chambliss, Samuel M. Chambliss III, J. William Fawcett, for appellee.
DOYLE, Presiding Judge. Miller and Dillard, JJ., concur.
Doyle, Presiding Judge.
George U. Amah appeals from the grant of partial summary judgment to Whitefield Academy, Inc., in the Academy's suit against him for trespass, ejectment, lost use and enjoyment of property, declaratory and injunctive relief, and punitive damages. Amah contends that the trial court erred by (1) ruling that Whitefield's easement unambiguously established an unlimited use for access, and (2) relying on unauthenticated hearsay documents. For the reasons that follow, we affirm in part, reverse in part, and remand the case.
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. On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed
facts, viewed in [331 Ga.App. 259] the light most favorable to the nonmoving party, warrant judgment as a matter of law.
The relevant portions of the record show that in 2003, the Academy acquired certain property that included a 20-foot easement over undeveloped property held by Amah's predecessor. The following year, Amah acquired his parcel and began the process of building a house on the property. During this process and thereafter, Amah allegedly encroached on several of his neighbors' property in various ways, including encroaching on the Academy's easement for ingress and egress, erecting fences, building decorative entryway features on property he did not own, and regrading neighboring property. After the parties were unable to resolve their disputes with Amah, Whitefield and the other neighbors sued Amah, seeking remedies including injunctive and declaratory relief, ejectment, and damages for trespass.
After Amah answered, the plaintiffs moved for partial summary judgment as to Amah's liability, reserving damages for trial. In two separate orders, the trial court granted partial summary judgment to the plaintiffs; one order addressed the Academy, and the other order addressed the other neighbors. Amah appeals the grant of partial summary judgment to the Academy, wherein the trial court ruled that the Academy had unrestricted use of the 20-foot wide easement incorporated in its deed.
1. The Academy order resolves the debate as to the Academy's right to use a 20-foot easement recorded in 1983, explicitly referenced in the Academy's deed, and generally referenced in Amah's deed. Amah contends that the trial court erred by ruling as a matter of law that the easement grants the Academy unlimited access for any purpose without restriction. In particular, he contends that the easement grants a use only for residential purposes, but not for commercial or other purposes involving regular traffic by Academy school buses and trucks.
A deed is a contract, and whether a deed and any documents incorporated in the deed by reference create an easement is a question of law that properly is resolved by the [331 Ga.App. 260] trial court to the extent that the deed is unambiguous or that any ambiguities can be resolved by application of accepted rules of construction. If the contract is clear and unambiguous, a court must enforce the contract according to its terms. If the contract is ambiguous, a court must apply the pertinent rules of contract construction to resolve the ambiguity and determine the intent of the ...