McBEE et al.
ASPIRE AT WEST MIDTOWN APARTMENTS, L.P. ASPIRE AT WEST MIDTOWN APARTMENTS, L.P.
McBEE et al.
R. McBee and his wife Mary A. McBee (the "McBees")
and Aspire at West Midtown Apartments, L.P.
("Aspire") are adjoining landowners on Green Street
in Atlanta. The McBees claim title by prescription - adverse
possession for more than 20 years - to a rectangular strip of
land measuring about 24 feet by 58 feet (the "Disputed
Area") located on a lot to which Aspire holds record
title (the "Aspire Lot"). Aspire used this lot and
several adjoining properties it owns to develop an apartment
complex, thereby depriving the McBees of the use of the
Disputed Area. The McBees sued Aspire, and the trial court
granted Aspire's motion for summary judgment on the
McBees' adverse possession claim. These two appeals
explained below, in Aspire's appeal (Case No. S17A0684),
we summarily affirm the trial court's order denying
Aspire's motion to dismiss the McBees' appeal for
delay in filing the record appendix. As for the McBees'
appeal (Case No. S17A0683), the trial court ruled that a deed
signed by Thomas McBee in 1974 shows conclusively that the
McBees lack a good faith claim of right to the Disputed Area.
However, the law presumes the existence of a good faith claim
of right, and the evidence in the existing record does not
conclusively rebut this presumption. Accordingly, we reverse
the order granting summary judgment to Aspire on the
McBees' adverse possession claim, and we remand the case
for the trial court to consider Aspire's other arguments
for summary judgment.
Court reviews the grant of summary judgment de novo. See
Cowart v. Widener, 287 Ga. 622, 624 (697 S.E.2d 779)
(2010). Summary judgment is proper only "if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law." OCGA § 9-11-56 (c). Thus,
to prevail on a motion for summary judgment, the moving party
must demonstrate that there is no genuine issue of material
fact, so that the party is entitled to judgment as a matter
of law. A defendant may do this by either presenting evidence
negating an essential element of the plaintiff's claims
or establishing from the record an absence of evidence to
support such claims.
Cowart, 287 Ga. at 623 (citations and punctuation
omitted). The McBees, as the parties opposing summary
judgment, are entitled to have the evidence in the record
viewed in the light most favorable to them and to have all
reasonable inferences from the evidence drawn in their favor.
See id. at 624.
viewed, the record shows the following. Thomas's
grandmother, Dorine McBee, once owned both the lot where the
McBees live (the "McBee Lot") and the Aspire Lot,
and she lived in a house on the Aspire Lot. She conveyed the
McBee Lot to her son, James S. McBee, in two deeds executed
in 1948 and 1955, and he built a house there, where he and
his wife Earlene McBee raised their two sons, Thomas and his
older brother James R. McBee. When James S. McBee died in
1961, the McBee Lot passed to his wife Earlene and their two
sons. Around that time, when Thomas was seven or eight years
old, he began maintaining and landscaping the Aspire Lot in
addition to the McBee Lot. On October 18, 1965, Dorine McBee
executed a will nominating her daughter, Betty McBee Taylor
("Aunt Betty"), as executrix; leaving half of her
estate (minus $1, 000) to Aunt Betty; and leaving the other
half to Aunt Betty as trustee for Thomas and his brother
James R. until Thomas turned 21.
December 26, 1973, Dorine McBee died. At the time, Aunt Betty
and her husband were living with Dorine on the Aspire Lot;
Thomas was living in Savannah. On March 9, 1974, three deeds
were executed: Aunt Betty executed a deed in her capacity as
executrix conveying the Aspire Lot to herself for $12,
433.34; Aunt Betty executed another deed, individually and in
her capacity as executrix, that quitclaimed any interest she
had in the McBee Lot (it appears there was none) to
"Earlene Cain McBee, Thomas R. McBee, [and] James R.
McBee"; and Thomas, his mother Earlene, and his brother
James R. executed a deed, "[i]ndividually and as sole
surviving heirs of James S. McBee, deceased, each of grantors
being sui juris, " quitclaiming any interest they had in
the Aspire Lot to Aunt Betty.
quitclaim deed to the Aspire Lot described the property as:
BEGINNING at a point on the south side of Green Street 394
[feet] west of the intersection of the west side of Hemphill
Avenue with the south side of Green Street; thence west along
the south side of Green Street, 71.5 feet; thence south 125
feet; thence east 71.5 feet; thence north 125 feet to the
south side of Green Street and the point of the beginning.
THE PURPOSE of this deed is to establish proper boundary
lines between properties owned by Grantors and Grantee and to
correct descriptions contained in [the 1948 and 1955 warranty
quitclaim deed to the McBee Lot contained a similarly worded
description of that property's boundaries and a similar
purpose provision. Thomas deposed that he did not understand
the legal import of the deed he signed; he signed it because
his mother told him that it was necessary in order to settle
his grandmother's estate.
Betty and her husband continued to live on the Aspire Lot,
and Earlene McBee continued to live on the McBee Lot. In
1977, Thomas and his wife Mary moved in with Earlene. Thomas
maintained and landscaped both the McBee Lot and the Aspire
Lot, including the Disputed Area. That spring, Thomas acquired
a large trailer with a 16-foot bed that he stored in the
Disputed Area. From that point on, he used the Disputed ...