Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wooten v. Williams

Court of Appeals of Georgia, Fourth Division

August 8, 2017

WOOTEN, et al.
v.
WILLIAMS, et al. WILLIAMS, et al.
v.
WOOTEN, et al. WILLIAMS, et al.
v.
WOOTEN, et al.

          DILLARD, C. J., RAY, P. J., and SELF, J.

          Ray, Presiding Judge.

         Olin Wooten, Guy P. Brown, and Perry Brown[1] (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.

         Case No. A17A1338

         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.

         Upon 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.

         (Citations 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).

         As both 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.

         2. At 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.

         Here, 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.

         It is well-settled that

[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 actions].

         (Citations and punctuation omitted.) Davis v. Overall, 301 Ga.App. 4, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.