Groves v. City of Atlanta

• Decision Date: 02 May 1994
• Docket Number: A94A0300 and A94A0304,Nos. A94A0298,A94A0299,s. A94A0298
• Citation: 444 S.E.2d 809,213 Ga.App. 455
• Parties: GROVES v. CITY OF ATLANTA et al. BROWN v. CITY OF ATLANTA et al. RIDENHOUR v. CITY OF ATLANTA et al. PYLANT v. CITY OF ATLANTA et al.
• Court: Georgia Court of Appeals

Page 809

444 S.E.2d 809

213 Ga.App. 455

GROVES v. CITY OF ATLANTA et al.

BROWN v. CITY OF ATLANTA et al.

RIDENHOUR v. CITY OF ATLANTA et al.

PYLANT v. CITY OF ATLANTA et al.

Nos. A94A0298, A94A0299, A94A0300 and A94A0304.

Court of Appeals of Georgia.

May 2, 1994.

Reconsideration Denied June 7, 1994.

Certiorari Denied Dec. 2, 1994.

Dwyer & White, J. Matthew Dwyer, Anne W. Sapp, Atlanta, for appellants.

Joe M. Harris, Jr., Charles G. Hicks, Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, Neal H. Howard, Michael V. Coleman, Atlanta, for appellees.

SMITH, Judge.

These four appeals arise from separate actions filed by Barbara Groves, Mary Brown, Juanita Ridenhour, and Hugh Pylant against the City of Atlanta, John D. Stephens, Inc., and others, seeking injunctive relief and damages for trespass on their land. The trial court granted Stephens's motion for summary judgment; it also granted the City of Atlanta's motion for partial summary judgment as to two issues and its motion to dismiss the claim for punitive damages. The appeals have been consolidated for review.

The record reveals that the plaintiffs are all owners of parcels of vacant land in Forest Park, in Clayton County. For several years, the City of Atlanta ("the City") had been acquiring property in that area, known as the Ballard Road area, pursuant to its Noise Abatement Program. The City decided to use the parcels in the Ballard Road area as a "borrow site" for fill dirt to be used in constructing a new concourse at Atlanta's Hartsfield International Airport. It also contemplated preparation of the area for development, under a plan originated by the City of Forest Park, and sold to private developers. The City sent letters to some, but not all, of the property owners in the area, offering to purchase their property. Groves and Pylant received such letters, but Brown and Ridenhour did not.

The City had contracted with Atlanta Airport Engineers ("AAE") to provide professional services regarding the development and construction of the airport. AAE was responsible for preparing site plans for grading and removing dirt from the "borrow site," as well as for providing field personnel to ensure compliance with the design and specifications in the contract. It is undisputed that responsibility for acquiring title to the properties in issue rested with the land acquisition office of the City's Aviation Department. None of the property owners accepted the City's offers to purchase their land, and the City never acquired their property. Nevertheless, the City awarded a contract to John D. Stephens, Inc. to clear the properties in issue, and on October 3, 1991, it issued a notice to Stephens to proceed with the project. Stephens then began clearing the lots.

The trial court granted Stephens's motion for summary judgment on the ground that it had performed all work pursuant to the instructions of the City as related to Stephens by AAE. Appellants' claim for punitive damages against the City was dismissed. Partial summary judgment was granted to the City on certain of appellants' claims, but the grant is not appealed. The City has not appealed the denial of that portion of its motion for summary judgment based on appellants' claims of nuisance and interference with right of access.

1. Appellants contend the trial court erred in granting Stephens's motion for summary judgment. They argue that, contrary to the trial court's assertion that "Stephens worked under the assumption that [the] City held title to the subject property," a question of fact exists whether Stephens performed its work despite having knowledge that the properties in issue were not owned by the City. In support of this argument, they point first to a note on the construction plan sheets stating that certain properties in the plan area remain "occupied" under private ownership and cautioning contractors not to enter these areas. It is clear, however, that appellants' parcels were not "occupied" but vacant and that the note refers to three specific properties--a church, a plumbing business, and a trailer park--that are clearly designated on the plans and marked with references to the marginal note.

Appellants also assert Stephens had actual notice of the trespass through direct contact with several property owners. Several property owners (other than appellants) may have told employees of Stephens the property was privately owned. However, Joseph Cantwell, project superintendent for Stephens testified at deposition that the contract documents themselves provided that all land was owned by the City. He testified further that on November 19, 1991, after the property had been cleared and the crew was working on the second phase of Stephens's contract, constructing a retention pond on the property for purposes of erosion control, a man came to the site and told Cantwell he owned a portion of the land. Cantwell gave him the address and telephone number of AAE and the names of people to contact there; he asked the man to obtain clarification from them. Cantwell then discussed the...