WOOTEN, et al.
WILLIAMS, et al. WILLIAMS, et al.
WOOTEN, et al. WILLIAMS, et al.
WOOTEN, et al.
DILLARD, C. J., RAY, P. J., and SELF, J.
Wooten, Guy P. Brown, and Perry Brown (collectively
"Wooten") filed an action seeking to establish a
private way over and across the property of Darrell and
Bonnie Williams (collectively "the Williamses").
Wooten also sought the removal of any obstructions that had
been placed on the alleged private way. The Williamses filed
a response and counterclaim, alleging that certain actions by
Wooten had deprived them of the use and enjoyment of their
property. After a trial, a jury returned a verdict finding
that Wooten had established a prescriptive easement across
the Williamses' property, but the jury also awarded $5,
000 in damages against Olin Wooten and in favor of the
Williamses on their counterclaim. The trial court
subsequently entered a judgment based on the verdict. Neither
the verdict nor the judgment specified the location of the
prescriptive easement or directed the removal of obstructions
from the right of way. These cross-appeals ensued. In Case
No. A17A1338, Wooten contends that the Williamses were not
entitled to recover damages for any interference with the use
and enjoyment of their property resulting from the
prescriptive easement, and that the trial court erred: (i) in
failing to conform its judgment to the verdict and evidence;
(ii) in failing to direct the Williamses to remove the
obstructions from the right of way; and (iii) in refusing to
allow a rebuttal witness to testify at trial. In Case Nos.
A17A1339 and A17A1340, the Williamses bring two identical
appeals from the trial court's denial of their motions
for directed verdict and for judgment notwithstanding the
verdict, arguing that Wooten failed to prove the location and
width of the right of way and was therefore not entitled to a
prescriptive easement. We consolidate the appeals for the
purposes of review. For the reasons that follow, we affirm in
part, reverse in part, vacate in part, and remand with
direction in Case No. A17A1338, and we affirm in Case No.
A17A1340. We dismiss the identical appeal in Case No.
A17A1339 as redundant.
1. As a
preliminary matter, we take up the Williamses' motion to
dismiss Wooten's appeal in Case No. A17A1338, which
argues that we lack jurisdiction because Wooten filed the
notice of appeal on the same day that the Williamses filed a
motion for judgment notwithstanding the verdict. We see no
basis for dismissal.
examination of the record, we note that Wooten's notice
of appeal was filed at 1:15 p.m. on September 26, 2016, and
that the Williamses' motion for judgment notwithstanding
the verdict was filed 19 minutes later, at 1:34 p.m. In
dealing with the co-existence of a timely notice of appeal
and a subsequent timely motion for post-judgment relief, our
Supreme Court has held that:
[e]ven though a notice of appeal may divest the trial court
of jurisdiction, we conclude that such divestiture does not
become effective during the period in which a motion for
[judgment notwithstanding the verdict] may be filed. In the
event a motion for [judgment notwithstanding the verdict] is
timely filed . . ., the effectiveness of the divestiture of
jurisdiction is then delayed until the motion for
[judgment notwithstanding the verdict] is ruled upon and a
notice of appeal to the ruling has been filed or the period
for appealing the ruling has expired.
omitted; emphasis supplied.) Housing Authority of City of
Atlanta v. Geeter, 252 Ga. 196, 197 (312 S.E.2d 309)
(1984). Accord Jones v. State, 309 Ga.App. 149,
149-150 (1) (709 S.E.2d 593) (2011) (where notice of appeal
had not yet ripened when subsequent motion for new trial was
timely filed, the trial court's jurisdiction to hear the
motion for new trial was preserved).
parties are seeking post-judgment relief, we conclude that
this rule controls the instant case. Here, the timely notice
of appeal was filed on the same day and just minutes before
the timely motion for judgment notwithstanding the verdict.
Furthermore, we note that the trial court has since ruled on
the Williamses' motion for judgment notwithstanding the
verdict, denying the motion in its entirety, and the
Williamses have now appealed from the trial court's
ruling. Therefore, the Williamses' motion to dismiss is
denied. Wooten's request for attorney fees regarding the
motion to dismiss is also denied.
trial, Wooten objected to the trial court's decision to
allow the Williamses' claim for damages for deprivation
of the use and enjoyment of their property to remain for the
jury's consideration in the event the jury found that
Wooten had established a prescriptive easement. On appeal,
Wooten contends that the jury's finding that Wooten had
established a prescriptive easement precludes the Williamses
from recovering damages for their claim. This argument fails.
the record shows that the Williamses' claim for damages
arises out of Olin Wooten's intimidation, threats of
physical harm, and acts which interfered with the
Williamses' use and enjoyment of their property, not
Wooten's use of the disputed private way. Specifically,
the evidence shows that, on one occasion, Olin Wooten went
upon the Williamses' property and informed Mr. Williams
that he had a gun, and he asked Mr. Williams to get a gun so
that the two could resolve their differences right then and
there. On several other occasions, Olin Wooten would pull his
vehicle onto the Williamses' property and just sit there.
[w]hen a deprivation of use and enjoyment [of property] has
occurred, a plaintiff may recover both nominal damages and
whatever the jury determines the defendant ought to pay, in
view of the discomfort and annoyance to which the plaintiff
and his family have been subjected by the [defendant's
and punctuation omitted.) Davis v. Overall, 301
Ga.App. 4, ...