Houston v. James

• Citation: 855 S.E.2d 714,358 Ga.App. 510
• Decision Date: 23 February 2021
• Docket Number: A20A1689
• Parties: HOUSTON et al. v. JAMES.
• Court: Georgia Court of Appeals

358 Ga.App. 510

855 S.E.2d 714

HOUSTON et al.

v.JAMES.

A20A1689

Court of Appeals of Georgia.

February 23, 2021

Julie Ann Liberman, Atlanta, James E. Tramel II, Elaine A. Nietmann, for Appellant.

Michael H. Cummings II, for Appellee.

Phipps, Senior Appellate Judge.

This case involves a family dispute over 28 acres of property. Sue James Houston and Teresa James Potts appeal the trial court's grant of summary judgment to their brother, Tom E. James, Jr. The trial court found that the 15 acres willed to Houston and Potts by their father had been acquired by James through prescriptive title. Because we find that questions of material fact exist regarding James's claim of right to these 15 acres, we reverse the trial court's order.

At the outset, we note that this Court reviews de novo a trial court's grant of summary judgment, construing all facts and inferences from those facts in the light most favorable to the nonmoving party. Kelley v. Randolph , 295 Ga. 721, 722 (1), 763 S.E.2d 858 (2014).

[T]he non-movant is not required to produce evidence demanding judgment for that party, but only to present evidence which raises a material issue of fact.

Where the evidence on motion for summary judgment is ambiguous or doubtful, the party opposing the motion must be given the benefit of all reasonable doubts and of all favorable inferences and such evidence construed most favorably to the party opposing the motion. Furthermore, while a movant's evidence is to be carefully scrutinized, a respondent's evidence is to be treated with indulgence.

Walker v. Sapelo Island Heritage Auth. , 285 Ga. 194, 196-197 (2), 674 S.E.2d 925 (2009) (citation and punctuation omitted).

So viewed, the record shows that in the late 1970s James's father gave him permission to move a trailer onto the property and build a house. According to James, his father either told him that he owned¹ or promised him that he would own² the entire 28 acres. Houston and Potts, on the other hand, assert that their father repeatedly told them that he wanted to leave one acre to each of his children, grandchildren, and great grandchildren when he died, and that he would leave 10 acres to James. None of the parties have produced any evidence regarding their father's wishes. According to James's complaint, in 1979 his father changed his mind about giving James the property and ordered James to leave the property, but James refused to leave, claimed the property as his own, and continued for 30 years to exercise exclusive possession, dominion, and control of the property to the exclusion of all others.

Notwithstanding this claim, James stated in documents supporting his motion for new trial that his father "held title to [the property] until his death in 2017" and referred to their father as his sisters’ "predecessor in title." In fact, James admits that in 1982 he received a deed from his father to .96 acres of the property, including the area where he built his house. It is undisputed that his father did not deed James any other property at that time. Houston and Potts both testified during their deposition that James asked their father for 10 acres of the land approximately five years before their 2019 deposition, and that made their father very angry. They also testified that although James paid taxes for the acre their father deeded him, their father paid the taxes on the rest of the property. In addition, according to Houston and Potts, their father helped build the barn on the property and helped pay for cattle and seed.

In 2017, the father died, and his 2016 will left approximately 15 of the 28 acres to Houston and Potts and approximately 12 acres as a life estate to James.³ James filed this action seeking a declaratory judgment granting him title under adverse possession to the 15 acres willed to Houston and Potts, and an injunction preventing Houston and Potts from selling or occupying the land. Houston and Potts answered and counterclaimed for an injunction to prevent James from trespassing on their property, as well as attorney fees for frivolous litigation. James subsequently moved for summary judgment. The trial court granted the motion, concluding that James satisfied all the required elements for prescriptive title and that Potts and Houston provided no evidence contradicting James's evidence. Houston and Potts have appealed this order.

OCGA § 44-5-161 (a) outlines the essential elements of a claim for adverse possession. According to that statute, prescriptive title can be obtained if the possession of property meets four conditions. The possession

(1) Must be in the right of the possessor and not of another;

(2) Must not have originated in fraud except as provided in Code Section 44-5-162 ;

(3) Must be public, continuous, exclusive, uninterrupted, and peaceable; and (4) Must be accompanied by a claim of right.

OCGA § 44-5-161 (a). In other words, the possession must be public, continuous, exclusive, uninterrupted, peaceable, accompanied by a claim of right, and not originate in fraud. Childs v. Sammons , 272 Ga. 737, 739 (2), 534 S.E.2d 409 (2000). The burden is on the party claiming prescriptive title to prove, by a preponderance of the evidence, possession in conformance with the above elements for a period of 20 years. Dyal v. Sanders , 194 Ga. 228, 233, 21 S.E.2d 596 (1942) ; OCGA § 44-5-163 ("Possession of real property in conformance with the requirements of Code Section 44-5-161 for a period of 20 years shall confer good title by prescription to the property against everyone except the state and those persons laboring under the disabilities stated in Code Section 44-5-170."). "[W]hether the facts exist which constitute adverse possession, is for the jury to judge. Whether, assuming the facts proven to be true, they constitute adverse possession, is for the court to decide." Ga. Power Co. v. Irvin , 267 Ga. 760, 766 (2), 482 S.E.2d 362 (1997) (citation omitted).

In this case, there is no dispute that, for a period of more than 20 years, James's possession of the 28 acres has been public, continuous, uninterrupted, and peaceable.

However, Houston and Potts argue on appeal that material issues of fact exist regarding James's claim of right to the property, whether his possession was merely permissive, and whether his possession has been exclusive. Pretermitting whether James's possession was without permission and exclusive, we find material issues of fact remain regarding whether James possessed a legitimate claim of right to the property.

A "claim of right" is synonymous with a "claim of title" and a "claim of ownership." Walker , 285 Ga. at 196 (2), 674 S.E.2d 925 ; Simmons v. Community Renewal & Redemption, LLC , 286 Ga. 6, 6 (1), 685 S.E.2d 75 (2009). "While this does not mean that the possession must be accompanied by a claim of title out of some predecessor, it does mean that there must be some claim of title in the sense that the possessor claims the property as his own." Simmons , 286 Ga. at 6 (1), 685 S.E.2d 75 (citations and punctuation omitted). "A claim of right will be presumed from the assertion of dominion, particularly where the assertion of dominion is made by the erection of valuable improvements." Childs , 272 Ga. at 739 (2), 534 S.E.2d 409 (citation and punctuation omitted). However, the exercise of dominion over property does not eviscerate a possessor's need to demonstrate a claim of right when conflicting evidence of the claim of right is presented. See Chancey v. Ga. Power Co. , 238 Ga. 397, 398 (1), 233 S.E.2d 365 (1977) (a claim of right may be presumed from the assertion of dominion and the erection of valuable improvements, but only in the "absence of evidence to the contrary").

While innocent or mistaken possession of property may ripen into adverse possession, knowledge that the property belongs to someone else is fatal to an adverse possession claim because it is well-settled that "no prescription runs in favor of one who took possession of land knowing that it did not belong to him." Kelley , 295 Ga. at 723, n.1 (1), 763 S.E.2d 858 (citation and punctuation omitted); Ellis v. Dasher , 101 Ga. 5, 9-10, 29 S.E. 268 (1897). "[O]ne must enter upon the land claiming in good faith the right to do so. To enter upon the land without any honest claim of right to do so is but a trespass and can never ripen into prescriptive title." Halpern v. Lacy Investment Corp , 259 Ga. 264, 265 (1), 379 S.E.2d 519 (1989) ; see also Mayor and Council of Forsyth v. Hooks , 182 Ga. 78, 84, 184 S.E. 724 (1936) ("Before...