Easement. Fulton Superior Court. Before Judge Glanville.
Carol V. Clark, James B. McClung, for appellant.
Hunton & Williams, Matthew J. Calvert, Brooke F. Voelzke, for appellee.
9766, LLC appeals from the trial court's order dismissing its claims against Dwarf House, Inc. regarding an easement over Dwarf House's property and alternatively granting summary judgment to Dwarf House on the easement claim. 9766 contends that the trial court erred by sua sponte dismissing its complaint on the grounds that it was not properly commenced or properly served and by precluding 9766 from introducing evidence to support its express easement claim. We agree that the trial court erred by dismissing 9766's complaint. We also conclude that the trial court erred by granting summary judgment because unresolved issues remain as to whether 9766 had an express easement claim. Accordingly, we reverse [331 Ga.App. 288] and remand the case for the trial court to address the issues raised by the parties in connection with Dwarf House's motion for summary judgment.
" We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant." (Citation omitted.) Herren v. Mitchell Elec. Membership Corp., 323 Ga.App. 517 (747 S.E.2d 63) (2013).
So viewed, the evidence shows that 9766 is solely owned by Dr. Jackie Williamson and owns property located at 9766 Highway 92 in Woodstock, where it leases space to a medical practice. Dwarf House operates a restaurant on property adjacent to the property owned by 9766. In June 1992, Ninety Two West, LTD. (" Ninety Two" ), in connection with the pending sale of a portion of the Highway 92 property to Chick-fil-A, Inc., executed a revised easement agreement (the " Agreement" ) granting to the Bank of Canton an easement for the purposes of vehicular access, ingress and egress over and across the property of Ninety Two. The Bank subsequently sold its property, with easement rights, to 9766. Chick-fil-A sold its portion of the property (subject to the easement) to Dwarf House, which began operating a restaurant there in April 1993.
In August 2012, the Dwarf House general manager informed the office manager of the medical practice that it would begin construction to expand the restaurant's drive-through lanes and that the construction would begin in September 2012. That same month, 9766 filed an application for an interlocutory injunction and/or a temporary restraining order, alleging that the construction would cause great and irreparable harm because it would essentially close down 9766's easement and make access for the medical practices' patients extremely difficult. Following a hearing, the trial court denied 9766's application for a temporary restraining order (" TRO" ), thereby allowing Dwarf House to expand the drive-through lanes at its restaurant. The expansion of the drive-through lanes at Dwarf House eliminated the access road as a route of egress from the 9766 property to Indian Valley Drive because it made the access road a one-way thoroughfare.
Dwarf House then filed a motion for summary judgment, asserting that 9766 did not have an express or implied easement over the access road on Dwarf House's property and that the sole basis for 9766's application was its contention that it had an easement over that access road. In its response, 9766 argued that it was undisputed that from the time it acquired the property in 2001 until the dispute arose in 2012, 9766's patients and clients had used the two-way access road for ingress and egress from 9766's property to Indian Valley Drive. 9766 further argued that issues of fact remained regarding the location of the easement and whether Dwarf
House had [331 Ga.App. 289] interfered with 9766's use and enjoyment of the easement.
While the summary judgment motion was pending, 9766 filed an " Amended Complaint" seeking a declaratory judgment as to the extent of its easement rights over Dwarf House's property, a permanent injunction requiring Dwarf House to remove the second drive-through lane and restore two-way traffic on the access road, damages for trespass, and attorney fees. Dwarf House answered, denying that 9766 was entitled to any relief.
After the parties submitted a pretrial order, the trial court conducted a hearing on Dwarf House's motion for summary judgment. The trial court then issued an order sua sponte dismissing the complaint, finding that the action was not properly commenced or properly served. The trial court also addressed Dwarf House's summary judgment motion, " [o]ut of an abundance of caution," but failed to explicitly grant or deny the motion, concluding that the record did not show that 9766 was entitled to the relief sought in its application or amended complaint. The trial court concluded that 9766 did not have an express easement ...