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Patel Taherbhai, Inc. v. Broad Street Stockbridge II, LLC

Court of Appeals of Georgia, First Division

October 3, 2019

PATEL TAHERBHAI, INC.
v.
BROAD STREET STOCKBRIDGE II, LLC.

          BARNES, P. J., MERCIER and BROWN, JJ.

          BROWN, JUDGE.

         Patel Taherbhai, Inc. ("Patel") appeals from the trial court's denial of its motion for summary judgment and motion to dismiss, and the grant of partial summary judgment to Broad Street Stockbridge II, LLC ("Broad Street"), in Broad Street's suit against Patel for ejectment and injunctive relief. The suit claims that Patel constructed certain encroachments on an access easement granted to Broad Street over Patel's property, and that the encroachments are unsafe and diminish the value of Broad Street's property for development.

         On appeal from the grant of summary judgment, this Court conducts "a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." (Citations and punctuation omitted.) Houston v. Flory, 329 Ga.App. 882, 883 (766 S.E.2d 227) (2014). "Because this opinion addresses cross-motions for summary judgment, we will construe the facts in favor of the nonmoving party as appropriate." Maree v. ROMAR Joint Venture, 329 Ga.App. 282, 283 (763 S.E.2d 899) (2014). This Court reviews a trial court's ruling on a motion to dismiss de novo. See Stafford v. Gareleck, 330 Ga.App. 757, 758 (769 S.E.2d 169) (2015).

         So viewed, the record shows that Broad Street is the owner of a 22.078 acre tract of undeveloped land located in Henry County off of Hudson Bridge Road. Patel is the owner of a 1.261 acre adjacent tract of land on which sits a Taco Bell restaurant.[1] On July 31, 2001, the parties' predecessors-in-interest entered into a Reciprocal Easement Agreement. Baptist Retirement Communities of Georgia, Inc., is the predecessor-in-title to Broad Street, and Kandathil M. Matthew is the predecessor-in-title to Patel. On April 26, 2004, Matthew and Baptist Retirement executed a First Amendment to Reciprocal Easement Agreement, which granted to Baptist the following access easement:

A perpetual, non-exclusive and unobstructed access, ingress and egress easement over, across, upon and through those portions of the Matthew Property delineated as the "Access Easement" on Exhibit "E[, ]" for the purpose of vehicular and pedestrian access, ingress and egress to and from Hudson Bridge Road and for the purpose of installing, maintaining, repairing, replacing and utilizing the curb cuts, driveways and related amenities necessary to the improvement and modification of the Access Road shown on Exhibit "E[.]"

         The "Access Road" or Hudson Bridge Drive, is a private road, designed and constructed by Baptist Retirement to provide access to its property from Hudson Bridge Road. The road extends across Patel's lot.

         After purchasing its property in 2007, Patel completed construction of its Taco Bell restaurant and received a certificate of occupancy from Henry County on January 10, 2008. As part of the construction process, Patel altered the four-way intersection which is situated on the access easement and leads into the Taco Bell and Broad Street's property, so that larger vehicles could enter the Taco Bell parking lot and drive-thru line. Patel also modified the Taco Bell parking lot, including adding five parking spots that extended into the access easement. Two years after the Taco Bell was constructed, Broad Street purchased its tract of land.

         Almost five years after it received its certificate of occupancy, Patel's CEO, Munir Taherbhai, received a call from Broad Street's owner, Stephen Rainer, complaining about the parking lot and intersection. According to Taherbhai, he attempted to negotiate amicably with Rainer, but those negotiations fell apart when Rainer proposed certain modifications that Taherbhai believed "create[d] real safety issue[s]." Those modifications included turning the Taco Bell exit into a "right turn" only and narrowing the lane used to exit the Taco Bell. At one point during their discussions, and based upon pictures of the easement shown to him by Rainer, Taherbhai said to Rainer, "'Yes, there are some parking spots that are in the way [of the easement].'" Throughout the summer of 2013, and spring and summer of 2015, the parties corresponded through their respective attorneys about reconfiguring the parking spaces and intersection.

         After the parties were unable to resolve their dispute, Broad Street filed this action on November 25, 2015, claiming that the "encroachments" create a safety hazard, violate the clear terms of the access easement, and diminish the value of its property. Broad Street sought an injunction ordering Patel to remove the encroachments, and ejectment on the ground that Patel "is unlawfully attempting to exercise possession and dominion over [Broad Street's] Property . . . [and] has refused to vacate and surrender possession of [Broad Street's] Property and to remove Encroachments[.]" The complaint also seeks attorney fees.

         After filing its answer, Patel moved for summary judgment and to dismiss the complaint. Patel argued that it was entitled to summary judgment because Broad Street was unable to support the elements of its claim for injunctive relief and attorney fees based upon Patel's alleged encroachment. Patel specifically asserted that (1) there was no evidence that the modifications substantially or materially interfered with the easement because Broad Street has enjoyed uninterrupted access to its property, (2) Broad Street consented to the modifications by failing to object during construction or for several years thereafter, and (3) for this same reason, Broad Street is equitably estopped from objecting to the modifications. In its motion to dismiss, Patel argued that Broad Street's complaint should be dismissed as time barred based upon OCGA § 9-3-30 (a) ("[a]ll actions for trespass upon or damage to realty shall be brought within four years after the right of action accrues") or the seven-year statute of limitation applicable to an action for ejectment. Patel also argued that Broad Street was guilty of laches and could not seek equitable relief when it allowed the modifications to remain for more than seven years before filing its complaint.

         Broad Street subsequently moved for partial summary judgment on its claims for injunction and ejectment, contending that (1) it has clear title to the access easement, which is encroached upon by the modifications, and is, therefore, entitled to an ejectment, and (2) as the owner of a non-exclusive ingress/egress easement by grant in a street, Broad Street may enjoin Patel from erecting obstructions in that street or alley. Broad Street sought summary judgment in its favor, seeking to eject Patel's "encroachment from the easement area and enjoin[] [Patel] from trespassing on Plaintiff's access easement." Following a hearing, the trial court denied Patel's motion for summary judgment and its motion to dismiss, but granted Broad Street's motion for partial summary judgment, ruling that the parking lot unlawfully encroaches into the reciprocal access easement, and ordering Patel to "remove the encroaching parking spaces and restore the pavement within the easement to an unobstructed state." The trial court rejected Patel's defenses of laches, finding that even though "the encroachment was present when [Broad Street] first took title to its tract [in 2010] . . . there is no evidence that the remedy of ejectment, removal of the offending parking spaces and restoring the pavement within the easement to an unobstructed state, would be any more burdensome in 2017 [than] it would have been in 2010." The trial court also rejected Patel's claim that the statute of limitation barred Broad Street's claims, ruling that no statute of limitation exists for an ejectment action, and that Patel did not obtain prescriptive title to the land that encroaches on the easement because it did not adversely possess the land for twenty years. Patel appeals these rulings.

         1. In its first enumeration error, Patel contends that the trial court erred in granting Broad Street's motion for partial summary judgment because an action in ejectment will not lie to recover an easement. We agree.

         "An easement has been defined as 'a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with the general property in the owner.'" Daniel F. Hinkle, Pindar's Ga. Real Estate Law and Procedure, § 8-1 (7th ed., updated April 2019). An easement "is an interest in land owned and possessed by another" and "is classified as an incorporeal interest because it carries with it no appreciable degree of dominion over the land itself." Id. at ยง 8-1. "The land used by or 'serving' the grantee of the easement is known as the servient tenement; the land served by or benefitting from the easement is known as ...


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