Beaulieu of America, Inc. v. L.T. Dennard & Co., Inc.

• Decision Date: 22 May 1984
• Docket Number: No. 40874,40874
• Parties: BEAULIEU OF AMERICA, INC. v. L.T. DENNARD & CO., INC.
• Court: Georgia Supreme Court

Page 889

315 S.E.2d 889

253 Ga. 21

BEAULIEU OF AMERICA, INC. v. L.T. DENNARD & CO., INC.

No. 40874.

Supreme Court of Georgia.

May 22, 1984.

Warren N. Coppedge, Jr., J. Tracy Ward, Mitchell, Coppedge, Wester, Bisson & Miller, P.C., Dalton, for Beaulieu of America, Inc.

Richard W. Andrews, Dalton, for L.T. Dennard & Co., Inc.

WELTNER, Justice.

The City of Dalton completed a procedure for closing to public use portions of certain city streets, and thereafter conveyed by quitclaim its interest in such portions to the owner of property which was leased to Beaulieu of America, Inc. The tenant then erected gates which blocked public passage over the street area, and L.T. Dennard & Co. brought an action to enjoin the maintenance of any obstacle blocking passage over the area.

Upon complainant's motion for summary judgment, permanent injunction was granted, requiring removal of obstructions.

1. The principal issue in this case is whether the trial court, on summary judgment, properly rejected the contentions of Beaulieu of America, Inc. that any right which L.T. Dennard & Co. might have is barred by laches. The record establishes that public notice of the proposed closing of the streets was first published on November 15, 1982; that Beaulieu of America, Inc. had spent in excess of $8,000 in erecting the gates; and that the present action was not filed until April 21, 1983.

The trial court, in reviewing these matters, which appeared by affidavit, included in its order the following: "Therefore, the Court concludes as a matter of law that under the facts as alleged by the defendant, the plaintiff is not guilty of such laches or abandonment as would bar it from equitable relief. OCGA § 44-9-6."

"In determining whether there has been laches, various things are to be considered, notably the duration of the delay in asserting the claim, and the sufficiency of the excuse offered in extenuation thereof, whether during the delay the evidence of the matters in dispute has been lost or become obscure, whether plaintiff or defendant was in possession of the property in suit during the delay, whether the party charged with laches had an opportunity to have acted sooner, and whether the party charged with laches acted at the first possible opportunity.... Citizens & Southern Nat. Bank v. Ellis, 171 Ga. 717, 733(3) (156 SE 603)." Hodges v. Libbey, 224 Ga. 509, 510, 162 S.E.2d 716 (1968).

"Laches is an equitable defense. [cites omitted.] Anything to the contrary expressed in Mason v. Carter, 223 Ga. 2, 153 S.E.2d 162, is disapproved and will not be followed." Watson v. Watson, 235 Ga. 136, 138, 218 S.E.2d 863 (1975).

Laches is peculiarly a factual defense, the resolution of which will rest in the sound discretion of the trial judge, sitting as a chancellor in equity, and without the intervention of a...