THE PLANTATION AT BAY CREEK DO-079 HOMEOWNERS ASSOCIATION, INC.
GLASIER et al.
DILLARD, C. J., DOYLE, P. J., and MERCIER, J.
Plantation at Bay Creek Homeowners Association, Inc.
("the HOA"), sued Allan and Glendee Glasier, who
owned a home in the community, seeking equitable reformation
of the revised plat of the Glasiers' property and
injunctive relief preventing the Glasiers from interfering
with the rights of the HOA and its members to use a purported
pedestrian easement providing access from a cul-de-sac to a
lake located behind the Glasiers' property. The Glasiers
filed an answer and counterclaim including eight counts:
quiet title (Count 1); a declaratory judgment as to the
revised plat (Count 2); breach of quiet enjoyment (Count 3);
an injunction prohibiting any person from crossing their
property without permission (Count 4); trespass (Count 5);
theft by taking (Count 6); intentional infliction of
emotional distress (Count 7); and attorney fees and expenses
pursuant to OCGA § 13-6-11 (Count 8). After the parties
filed cross-motions for partial summary judgment, a
court-appointed special master issued a report concluding
that there was no easement across the Glasiers' property.
The trial court adopted the special master's report;
denied the HOA's summary judgment motion as to its
claims; granted summary judgment to the Glasiers as to their
counterclaims for quiet title, declaratory judgment, and
injunctive relief; and denied the parties' cross-motions
for summary judgment as to the Glasiers' remaining
counterclaims. The HOA appeals. For the reasons that follow,
we affirm the denial of the HOA's summary judgment motion
as to its claims, affirm the ruling regarding the
Glasiers' counterclaims 1-6 and 8, and reverse the denial
of summary judgment to the HOA on the Glasiers'
counterclaim for intentional infliction of emotional
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 a judgment as a matter
of law. When a plaintiff moves for summary judgment, he has
the burden of establishing the absence or non-existence of
any defense raised by the defendant. When a defendant moves
for summary judgment, he has the burden of 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. We review a grant or denial of
summary judgment de novo and construe the evidence in the
light most favorable to the nonmovant. Because this opinion
addresses cross-motions for summary judgment, we will
construe the facts in favor of the nonmoving party as
viewed, the record shows that the Bay Creek subdivision,
which is located in Gwinnett County, is comprised of three
different neighborhoods. The subdivision plat, which was
recorded on April 29, 2000, shows a 21.59-acre recreation
area, which includes a retention pond (referred to as a
lake), a pool, a playground, and pickle ball and tennis
courts. The lake is bordered entirely on one side with lots;
the only road to the recreation area is outside of the
October 9, 2003, Karen Kilbourne purchased Lot 47 from the
developers. Lot 47 abuts a cul-de-sac on the northwest corner
and the lake on the south boundary line.
Revisions 1, 2, and 3 of the plat for the subdivision, which
were filed in 2000, 2001, and 2004, depict Lot 47 as follows:
her ownership of Lot 47, Kilborne disputed the existence of a
pedestrian easement on her property and repeatedly denied
access to those who attempted to access the lake via her
property without permission, including calling the police
multiple times. In or around 2007, after complaints from
Kilborne, the HOA advised its members that there was no
access to the lake through Lot 47, and it had a sign erected
on the lot line between Lots 46 and 47 that said "NO
LAKE ACCESS/NO PARKING."
November 27, 2012, the Glasiers purchased the home and
property on Lot 47 from Kilborne. The warranty deed provides
that the conveyance is "subject to all . . . easements
and restrictions of record affecting said bargained
premises," but it does not specifically mention a
pedestrian easement. At the time of the purchase, the
"NO LAKE ACCESS" sign was still in the yard. In
April 2014, the HOA president, Charles Lorentz, entered the
Glasiers' yard without their permission and took the
sign. Soon thereafter, people crossed over the Glasiers'
property to access the lake on approximately 100
occasions. When Mrs. Glasier spoke with the people
traversing her property, some of them stated that the HOA
told them could access the lake through the Glasiers'
property. The Glasiers protested the removal of the sign to
an HOA board member, at which time they learned that the HOA
planned to install a concrete pad for access from the
cul-de-sac to the lake. The Glasiers also installed personal
"No Trespassing" signs on their property, but the
HOA required the Glasiers to remove them.
Glasier contacted Sam Evans, the original surveyor, about the
easement issue. After looking at his records, Evans advised
her that "he didn't see anything that would show an
easement" and that the label "10' PEDESTRIAN
ESMT" on the plat for Lot 47 was an error and was not
supposed to be there. Mrs. Glasier then presented the
information from Evans to the Gwinnett County Department of
Planning ("the County"), which approved a revised
plat prepared by Evans after investigating the
matter. The revised plat, which removed the label
"10' PEDESTRIAN ESMT" from Lot 47, was
March 23, 2015, the HOA sued the Glasiers seeking injunctive
relief and equitable reformation of the revised plat to
reinstate the original plat. The Glasiers asserted their
counterclaims against the HOA, and after the parties filed
cross-motions for partial summary judgment, the special
master issued a report concluding that there was no easement
across the Glasiers' property. The trial court then
adopted the special master's report, denied the HOA's
summary judgment motion as to its claims, granted summary
judgment to the Glasiers as to their counterclaims for quiet
title, declaratory judgment, and injunctive relief, and
denied the parties' cross-motions for summary judgment as
to the Glasiers' remaining counterclaims. This appeal
Declaratory judgment and injunctive relief. The HOA
contends that the trial court erred by adopting the special
master's findings of fact and conclusions of law and by
granting summary judgment to the Glasiers as to their
counterclaims for declaratory judgment and injunctive relief.
Concurrent findings by a trial court and special master are
entitled to great deference on appeal. Findings of fact will
not be reversed unless they are clearly erroneous, and as
long as there is any evidence in the record to support a
particular finding, it will not be disturbed. By contrast,
conclusions of law by a trial court and special master are
subject to de novo review on appeal.
the special master concluded that the term "10'
PEDESTRIAN ESMT" on the plat for Lot 47 "is void
for uncertainty of description." This conclusion is
supported by the evidence.
Although the law does not require legal perfection in the
description of an easement, the description must be
sufficiently full and definite to afford means of
identification. While it is not necessary that the instrument
should embody a minute or perfectly accurate description of
the land, yet it must furnish the key to the
identification of the land intended to be conveyed by
the grantor. If the premises are so referred to as to
indicate the grantor's intention to convey a particular
tract of land, extrinsic evidence is admissible to show the
precise location and boundaries of such tract. The test as to
the sufficiency of the description of property contained in a
deed is whether or not it discloses with sufficient certainty
what the intention of the grantor was with respect to the
quantity and location of the land therein referred to, so
that its identification is practicable.
question of whether or not a description is sufficient to
convey property  is one of law for the courts to
phrase "10' PEDESTRIAN ESMT" appears
horizontally across Lot 47. There are no lines, arrows, or
other markings connecting the phrase to the plat, and it is
unclear if "10'" applies to the length or width
of any purported easement or if the easement is uniform in
either of those dimensions. Thus, the plat
provides no means to identify the quantity or location of the
easement intended to be conveyed. The description does not
clearly identify the dimensions of the easement or where it
begins, leads, or ends. [And t]here is nothing in the record
to support the [HOA's] contention that the [plat] shows
the location of the intended easement.
as the special master concluded, the plat provides no key for
determining the location of the easement "such that
extrinsic evidence may be added to determine its precise
the trial court did not err by granting summary judgment to
the Glasiers on their counterclaims for a declaratory
judgment and injunctive relief.
Quiet title. Based on our holding in Division 1, the
trial court did not err by granting summary judgment to the
Glasiers on their counterclaim for quiet title and by denying
the HOA's summary judgment motion as to that claim.
The HOA's claims. For the same reason, the trial
court did not err by denying the HOA's summary judgment
motion as to its claims for equitable reformation of the plat
and injunctive relief.
Trespass. The HOA argues that the trial court erred
by denying its motion for summary judgment as to the
Glasiers' counterclaim for trespass. We disagree.
Glasiers allege in their counterclaim that Lorentz, "on
behalf of the [HOA]," willfully entered the
Glasiers' property without authorization and removed the
"NO LAKE ACCESS" sign, and that as a result, they
have suffered damages based on "the ever-increasing
foot, bike, motorcycle, and golf cart traffic entering their
property at all hours of the day."
"An owner of real property has the right to possess,
use, enjoy, and dispose of it, and the corresponding right to
exclude others from its use. In an action for trespass, the
landowner may recover compensatory damages upon a showing of
any wrongful, continuing interference with a right to the
exclusive use and benefit of a property
right." In Georgia, "'[t]respass'
means any misfeasance, transgression, or offense which
damages another's health, reputation, or
property." Pursuant to OCGA § 51-10-3,
"[a]ny unlawful abuse of or damage done to the personal
property of another constitutes a trespass for which damages
may be recovered."
undisputed that in April 2014, Lorentz entered the
Glasiers' property without invitation or authorization
and took the "NO LAKE ACCESS/NO PARKING" sign.