McBee v. Aspire at W. Midtown Apartments, L.P.

• Court: Georgia Supreme Court
• Writing for the Court: NAHMIAS, Justice.
• Citation: McBee v. Aspire at W. Midtown Apartments, L.P., 302 Ga. 662, 807 S.E.2d 455 (Ga. 2017)
• Decision Date: 30 October 2017
• Docket Number: S17A0683,S17A0684
• Parties: MCBEE et al. v. ASPIRE AT WEST MIDTOWN APARTMENTS, L.P. Aspire at West Midtown Apartments, L.P. v. McBee et al.

302 Ga. 662

807 S.E.2d 455

MCBEE et al.

v.ASPIRE AT WEST MIDTOWN APARTMENTS, L.P.

Aspire at West Midtown Apartments, L.P.

v.McBee et al.

S17A0683

S17A0684

Supreme Court of Georgia.

Decided: October 30, 2017

Kumar, Prabhu, Patel & Banerjee, Roy A. Banerjee, for appellants.

James P. Blum, Jr., for appellee.

NAHMIAS, Justice.

Thomas R. McBee and his wife Mary A. McBee (the "McBees") and Aspire at West Midtown Apartments, L.P. ("Aspire") are adjoining landowners on Green Street in Atlanta. The McBees claim title by prescription—adverse possession for more than 20 years—to a rectangular strip of land measuring about 24 feet by 58 feet (the "Disputed Area") located on a lot to which Aspire holds record title (the "Aspire Lot"). Aspire used this lot and several adjoining properties it owns to develop an apartment complex, thereby depriving the McBees of the use of the Disputed Area. The McBees sued Aspire, and the trial court granted Aspire's motion for summary judgment on the McBees' adverse possession claim. These two appeals followed.

As explained below, in Aspire's appeal (Case No. S17A0684), we summarily affirm the trial court's order denying Aspire's motion to dismiss the McBees' appeal for delay in filing the record appendix. As for the McBees' appeal (Case No. S17A0683), the trial court ruled that a deed signed by Thomas McBee in 1974 shows conclusively that the McBees lack a good faith claim of right to the Disputed Area. However, the law presumes the existence of a good faith claim of right, and the evidence in the existing record does not conclusively rebut this presumption. Accordingly, we reverse the order granting summary judgment to Aspire on the McBees' adverse possession claim, and we remand the case for the trial court to consider Aspire's other arguments for summary judgment.

1. This Court reviews the grant of summary judgment de novo. See Cowart v. Widener, 287 Ga. 622, 624, 697 S.E.2d 779 (2010). Summary judgment is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]" OCGA § 9–11–56 (c). Thus,

to prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law. A defendant may do this by either presenting evidence negating an essential element of the plaintiff's claims or establishing from the record an absence of evidence to support such claims.

Cowart, 287 Ga. at 623, 697 S.E.2d 779 (citations and punctuation omitted). The McBees, as the parties opposing summary judgment, are entitled to have the evidence in the record viewed in the light most favorable to them and to have all reasonable inferences from the evidence drawn in their favor. See id. at 624, 697 S.E.2d 779.

So viewed, the record shows the following. Thomas's grandmother, Dorine McBee, once owned both the lot where the McBees live (the "McBee Lot") and the Aspire Lot, and she lived in a house on the Aspire Lot. She conveyed the McBee Lot to her son, James S. McBee, in two deeds executed in 1948 and 1955, and he built a house there, where he and his wife Earlene McBee raised their two sons, Thomas and his older brother James R. McBee. When James S. McBee died in 1961, the McBee Lot passed to his wife Earlene and their two sons. Around that time, when Thomas was seven or eight years old, he began maintaining and landscaping the Aspire Lot in addition to the McBee Lot. On October 18, 1965, Dorine McBee executed a will nominating her daughter, Betty McBee Taylor ("Aunt Betty"), as executrix; leaving half of her estate (minus $1,000) to Aunt Betty; and leaving the other half to Aunt Betty as trustee for Thomas and his brother James R. until Thomas turned 21.

On December 26, 1973, Dorine McBee died. At the time, Aunt Betty and her husband were living with Dorine on the Aspire Lot; Thomas was living in Savannah. On March 9, 1974, three deeds were executed: Aunt Betty executed a deed in her capacity as executrix conveying the Aspire Lot to herself for $12,433.34; Aunt Betty executed another deed, individually and in her capacity as executrix, that quitclaimed any interest she had in the McBee Lot (it appears there was none) to "Earlene Cain McBee, Thomas R. McBee, [and] James R. McBee"; and Thomas, his mother Earlene, and his brother James R. executed a deed, "[i]ndividually and as sole surviving heirs of James S. McBee, deceased, each of grantors being sui juris," quitclaiming any interest they had in the Aspire Lot to Aunt Betty.¹

The quitclaim deed to the Aspire Lot described the property as:

BEGINNING at a point on the south side of Green Street 394 [feet] west of the intersection of the west side of Hemphill Avenue with the south side of Green Street; thence west along the south side of Green Street, 71.5 feet; thence south 125 feet; thence east 71.5 feet; thence north 125 feet to the south side of Green Street and the point of the beginning.

It then said:

THE PURPOSE of this deed is to establish proper boundary lines between properties owned by Grantors and Grantee and to correct descriptions contained in [the 1948 and 1955 warranty deeds].

The quitclaim deed to the McBee Lot contained a similarly worded description of that property's boundaries and a similar purpose provision. Thomas deposed that he did not understand the legal import of the deed he signed; he signed it because his mother told him that it was necessary in order to settle his grandmother's estate.

Aunt Betty and her husband continued to live on the Aspire Lot, and Earlene McBee continued to live on the McBee Lot. In 1977, Thomas and his wife Mary moved in with Earlene. Thomas maintained and landscaped both the McBee Lot and the Aspire Lot, including the Disputed Area.² That spring, Thomas acquired a large trailer with a 16–foot bed that he stored in the Disputed Area. From that point on, he used the Disputed Area for parking and to store his trailer, vehicles, machinery, automobile engines and other parts, and lumber.³

Earlene McBee died in 1990. When Aunt Betty and her husband moved to Florida in the early 1990s, they allowed a friend from the neighborhood to stay in the house on the Aspire Lot. The woman was allowed to stay for a short time after Aunt Betty conveyed the Aspire Lot to an investor on February 18, 1993, but when the woman moved out, the house was torn down. Due to problems with vagrancy and thefts, Thomas posted "No Trespassing" signs on trees in the Disputed Area (and the McBee Lot), called the police to report trespassers, and put down concrete parking stops to prevent others from using the Disputed Area for dumping or other purposes. On June 20, 2005, the investor who bought the Aspire Lot conveyed it to a company that conveyed it and several contiguous lots to Aspire on September 29, 2014. Aspire then began construction of the apartment complex. In December 2014, with construction ongoing, Aspire sued Mary McBee and obtained a court order directing the McBees to remove the 16–foot trailer and all other items they owned from the Disputed Area.⁴

On May 22, 2015, the McBees filed a complaint against Aspire to quiet title to the Disputed Area in them based on adverse possession. The McBees also alleged trespass and nuisance and sought an award of damages and attorney fees. Aspire filed an answer and counterclaims to quiet title in it and for trespass and slander of title. After discovery, the parties filed cross-motions for summary judgment in March 2016, and after a hearing in June, the trial court entered an order on July 5, 2016, denying summary judgment to the McBees and granting partial summary judgment to Aspire.⁵ On July 27, 2016, the McBees filed a notice of appeal to this Court, invoking our then-existing jurisdiction over cases involving title to land.⁶ Their appeal was docketed here as Case No. S17A0683.

Case No. S17A0684 (Aspire's Appeal)

2. The McBees elected to prepare a record appendix for their appeal, which this Court's Rule 67 then allowed. Aspire later filed a motion to dismiss the McBees' appeal due to their delay in filing the record appendix. The trial court denied Aspire's motion, and Aspire appealed that order; Aspire's appeal was docketed in this Court as Case No. S17A0684. The trial court's order denying Aspire's motion to dismiss the McBees' appeal adequately explains the decision, which was not erroneous, and an opinion on this issue by this Court would have no meaningful precedential value in light of the amendment to Rule 67 eliminating the record appendix procedure as of December 31, 2016. Accordingly, we summarily affirm the trial court's judgment in Case No. S17A0684. See Supreme Court Rule 59.

Case No. S17A0683 (The McBees' Appeal)

3. "Title by prescription is the right to property which a possessor acquires by reason of the continuance of his possession for a period of time fixed by law." OCGA § 44–5–160. Adverse possession—the type of possession that can ripen into title by prescription—is described in OCGA § 44–5–161 ; among other things, the possession "[m]ust be accompanied by a claim of right." OCGA § 44–5–161 (a) (4).⁷ Adverse possession of real property "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 [certain statutory] disabilities[.]" OCGA § 44–5–163.⁸

Properly viewed, the record shows that the McBees possessed the Disputed Area by maintaining it and using it for parking vehicles and storing personal property for far longer than the 20–year prescriptive period before Aspire filed its separate lawsuit against Mary in December 2014 to force them off the land. See Murray v. Stone, 283 Ga. 6, 6, 655 S.E.2d 821 (2008) (affirming a jury verdict in favor of title by adverse possession where the evidence...