KDS Properties, Inc. v. Sims

• Decision Date: 16 September 1998
• Docket Number: No. A98A1181.,A98A1181.
• Citation: KDS Properties, Inc. v. Sims, 506 S.E.2d 903, 234 Ga.App. 395 (Ga. App. 1998)
• Parties: KDS PROPERTIES, INC. et al. v. SIMS.
• Court: Georgia Court of Appeals

506 S.E.2d 903

234 Ga. App. 395

KDS PROPERTIES, INC. et al. v. SIMS.

No. A98A1181.

Court of Appeals of Georgia.

September 16, 1998.

Edward F. Danowitz, Atlanta, for appellants.

Charles A. Mullinax, Stone Mountain, Glynn R. Stepp, for appellee.

JOHNSON, Presiding Judge.

This suit arises from a petition for injunction and complaint for damages resulting from an alleged trespass onto Sims' land by KDS Properties, Inc. (KDS), a Georgia corporation, and Douglas Hinton. Hinton is the principal stockholder, president, vice-president, secretary, treasurer, and director of KDS. Following a hearing on a motion for interlocutory injunction, the trial court appointed the county surveyor to conduct an independent boundary line survey. After walking the property line and observing the monuments at issue, the county surveyor adopted the findings of Sims' surveyor and submitted his report to the trial court. After reviewing the surveyor's report and other evidence, the trial court granted Sims' motion for an interlocutory injunction to temporarily restrain KDS from certain construction-type activities on Sims' land.

At trial, the jury returned a special verdict, and judgment was entered which, inter alia: (i) established the true boundary line dividing Sims' and Hinton's property in accordance with a plat survey admitted in evidence as P-3-A; (ii) awarded $16,722.50 in damages to Sims against KDS for trespass; (iii) awarded $36,864.94 in attorney fees and litigation expenses to Sims against KDS; (iv) awarded $1 in punitive damages to Sims against Hinton for trespass; and (v) restrained and enjoined KDS and Hinton from grading, bulldozing, leveling, cutting, destroying, or otherwise harming any of the trees and vegetation of the property. KDS and Hinton filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for new trial. The motion for new trial was denied. The motion for j.n.o.v. was granted as to the punitive damage award against Hinton, but was otherwise denied. KDS and Hinton appeal from the judgment entered in favor of Otis Sims.

1. KDS and Hinton assert the trial court erred in striking that portion of the judgment pertaining to punitive damages because "the verdict and judgment against Appellant Hinton for punitive damages but no general damages was a void verdict" and the judgment had to be set aside in its entirety. They cite H & H Subs v. Lim, 213 Ga.App. 371, 444 S.E.2d 404 (1994) in support of their argument.

As a general rule, a verdict which is contradictory and repugnant is void, and no valid judgment can be entered thereon. A judgment entered on such a verdict will be set aside. The entry of such a judgment is a ground for granting a new trial. H & H Subs, supra at 372(1), 444 S.E.2d 404. The verdict in this case, however, is substantially different from the verdict in H & H Subs. There the verdict had numerous defects, and this Court could provide no reasonable construction to uphold the verdict.

As to the trespass claim, the jury reached a verdict in favor of Hinton by awarding no compensatory damages against him. See LDS Social Svcs. Corp. v. Richins, 191 Ga.App. 695, 698(2), 382 S.E.2d 607 (1989). No inconsistency in the verdict arises merely by holding KDS liable for the trespass claim while exonerating Hinton. The verdict, however, is inconsistent as to Hinton because he cannot be held liable for punitive damages when the jury did not award compensatory damages against him. This sole inconsistency was readily apparent on the face of the verdict, was readily recognized at trial by the parties and the trial court, and was easily separable from the remainder of the otherwise consistent verdict. The trial court remedied the inconsistency by setting aside the $1 punitive damage award, thereby protecting and effectuating the trial court's final judgment. A trial court has the constitutional power to enter an order, regardless of its nomenclature, "as necessary ... to protect or effectuate its judgments." Ga. Const. of 1983, Art. VI, Sec. I, Par. IV.

After the verdict was announced, the attorneys for the parties informed the trial court that the punitive damage award could not be sustained. The trial court decided not to send the issue back to the jury, after hearing the attorneys' differing views as to remedial options. The attorney for KDS and Hinton did not object to the trial court's ruling. Although the trial court invited the parties to put any additional arguments regarding the issue on the record, KDS and Hinton merely requested that the jury be polled and otherwise remained silent. Each juror confirmed that the verdict was the same as his or her verdict both during deliberations and at the time of announcement. The jury was then excused without objection. The parties by their conduct and silence acquiesced in the ruling of the trial court and in the dismissal of the jury without its reconsideration of the verdict. A party cannot complain of a verdict, judgment, ruling, or order that his own trial or post-trial procedure aided in causing. See Perryman v. Rosenbaum, 205 Ga.App. 784, 790, 423 S.E.2d 673 (1992).

2. KDS and Hinton assert that the "true boundary line" set by the jury is not supported by the evidence and violates law governing boundaries. We disagree. The parties agreed on the location of the following two markers which are shown on all plats: (i) an iron stake locating the true point of beginning and (ii) the wagon axle or corner stake labeled "C." It is the line between these two marker points that is in dispute. KDS and Hinton maintained that the boundary line between the properties is a straight line between the true point of beginning and point C—the two stipulated markers. Sims contended that there exists an approximate 4.289-acre offset in the boundary line; that is, the true boundary line runs from the point of beginning to a point labeled B then to a point labeled D then to a point labeled A then to point C. The jury resolved this dispute in favor of Sims. Under the "any evidence" standard of review, it cannot be said that there was insufficient evidence to support the jury's decision. See Martin v. Patton, 225 Ga.App. 157, 160(1), 483 S.E.2d 614 (1997).

Sims contends that the boundary line has been firmly established by iron pins, hedge rows, trees, a line gully, and fencing, and that his occupation of that land has been public, continuous, exclusive, uninterrupted and peaceable. The jury was instructed on the law regarding obtaining title by prescription. KDS and Hinton have enumerated no error in the charging of the jury, particularly as to boundary line determination. The jury was also correctly instructed on the following principles of law which apply to boundary determinations: (i) if the corners are established and lines are not marked, a straight line as required by plat shall be run, but an established marked line, though crooked, shall not be overruled; (ii) artificial boundaries include fences, roads, streets, and land lot lines; they are evidence of the points which landowners past or present had in mind in their contractual dealings with one another; (iii) all monuments whether natural or artificial are deemed superior to courses and distances; the superiority of monuments over metes and bounds is limited to those which are referred to in the deed itself; (iv) courses and distances occupy the lowest grade instead of the highest in the scale of evidence as to the identity of land; and (v) boundaries may be proved by hearsay. See generally OCGA § 44-4-5(3) and (4); Martin, supra at 162-165(2), 483 S.E.2d 614; see also Dover v. Pritchett, 251 Ga. 842, 844, 309 S.E.2d 804 (1984).

Sims' surveyor testified as to the procedure used in conducting his survey. His prepared plat was submitted in evidence. His conclusions as to the boundary lines were supported both by an aerial photograph taken in 1939 and by the testimony of the court-appointed surveyor. This evidence, together with the testimony of Sammy Sims, Joann Sims Collins, and Jean Sims Smith, and documentary evidence, is sufficient to support the jury's verdict as to the true boundary line. See generally Locke v. Vonalt, 189 Ga.App. 783, 785(1), 377 S.E.2d 696 (1989).

The case of Minor v. Fincher, 213 Ga. 365, 99 S.E.2d 78 (1957), relied upon by KDS and Hinton is distinguishable. There the lay witness who testified gave testimony substantially in conflict with the survey.

As noted, the jury also was instructed, without objection, as to acquiring title by adverse possession or prescription. See generally OCGA §§ 44-5-161; 44-5-164. Evidence was admitted showing that for over 20 years, the Sims family maintained a chicken house within the contested acreage. The old chicken house deteriorated, and a new one was built in 1966. The Sims family kept chickens in the building until about 1989. A fence had been used as a boundary for more than 20 years on a portion of the contested property. The fence was maintained by the Sims family commencing in the early 1960s and was replaced by them in 1972 or 1973. "Acquiescence for seven years by acts or declarations of adjoining landowners shall establish a dividing line." OCGA § 44-4-6. The jury was authorized to conclude that Sims obtained title to the contested acreage by prescription. See Bell v. Owens, 230 Ga. App. 826, 827(1), 497 S.E.2d 591 (1998).

3. The trial court did not err in allowing the jury to enter an award for attorney fees...