O'Neill v. Hairston

• Decision Date: 25 July 2022
• Docket Number: A22A0811
• Parties: O'NEILL v. HAIRSTON.
• Court: Georgia Court of Appeals

O'NEILL v. HAIRSTON.

No. A22A0811

Court of Appeals of Georgia, Third Division

July 25, 2022

DOYLE P. J., REESE, J., and SENIOR APPELLATE JUDGE PHIPPS

Phipps, Senior Appellate Judge.

Defendant Rosemary O'Neill^[1] appeals the trial court's grant of partial summary judgment to plaintiff Cheree Hairston in this boundary dispute between neighboring property owners. On appeal, O'Neill argues that the trial court erred in finding there are no genuine issues of material fact as to the boundary line location between the two properties and whether a fence she erected extends onto Hairston's property. For the reasons that follow, we agree and reverse.

A trial court may grant summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). Thus, "on appeal from the grant or denial of a motion for summary judgment, the issue is whether there is any genuine issue of fact." King v. Ingram 250 Ga. 887, 888 (302 S.E.2d 105) (1983). "When a plaintiff moves for summary judgment, [s]he has the burden of establishing the absence or non-existence of any defense raised by the defendant." 905 Bernina Avenue Coop v. Smith/Burns LLC, 342 Ga.App. 358, 361 (1) (802 S.E.2d 373) (2017) (citation and punctuation omitted). This Court reviews a grant or denial of summary judgment de novo construing the evidence in the light most favorable to the nonmovant. Id.

So viewed, the evidence shows that O'Neill and Hairston are owners of adjoining real property. At some point, O'Neill erected a wooden fence that purportedly encroaches on Hairston's property. In August 2019, Hairston sued O'Neill. The complaint sought (1) a declaratory judgment finding that, among other things, O'Neill's fence is located on Hairston's property, (2) an injunction barring O'Neill from trespassing on Hairston's property, (3) damages for trespass, and (4) attorney fees. Hairston included with her complaint a survey from a registered land surveyor dated May 30, 2019, purportedly depicting the boundary line between the parties' properties. O'Neill answered and counterclaimed for damages allegedly resulting from Hairston allowing her dogs to roam in O'Neill's yard. O'Neill also requested bad faith attorney fees.

In July 2021, Hairston moved for summary judgment, claiming she was "entitled to judgment as a matter of law on the issues of location of the boundary line between the properties, trespass, and injunctive relief." She also argued that O'Neill's fence constitutes a "spite" fence, erected solely to injure her. Hairston attached to her motion a copy of the May 30, 2019 land survey purportedly marking the boundary line between the parties' properties, as well as an affidavit averring that O'Neill erected the fence on Hairston's property and that the fence blocks access to her property.

O'Neill responded to Hairston's motion. Her response included an affidavit and photographs that she claimed "show colored surveyor flags marking the boundary line and [also] show the wooden fence is on [her] side of the [property] line."^[2] In her affidavit, O'Neill averred as follows: (a) she has "personal knowledge of the corners of the property that [she] own[s] from living there for about 19 years"; (b) a number of years earlier, Hairston's husband hired a surveyor who installed a marker stake with red tape between Hairston's property and O'Neill's property; (c) the marker stake purportedly is shown on Hairston's submitted survey "as a diamond shape"; (d) O'Neill tied a string to the marker stake and pulled the string to the corner of Hairston's property labeled "point of beginning" on Hairston's survey; (e) photographs showing the marker stake and the pulled string (attached to O'Neill's affidavit) show that O'Neill's fence does not encroach on Hairston's property. According to O'Neill's affidavit, her photographs show that the fence is on her side of the property line. O'Neill also testified by deposition that the fence is on her side of the property line and that she received permission from the city building inspector to erect the fence.

In addition to this evidence, O'Neill submitted during discovery a 1994 survey, as well as a February 6, 2019 survey by the same land survey company that performed the May 2019 survey. O'Neill argued at the motion for summary judgment hearing that the February 2019 survey contains "some differences" from the May 2019 survey.

The trial court held a hearing and granted partial summary judgment to Hairston, finding as follows: (1) the May 30, 2019 survey presented by Hairston "accurately reflects the location of the boundary lines between the parties' respective properties"; (2) O'Neill's fence extends beyond the boundary of her property and onto Hairston's property; and (3) the portion of the fence extending onto Hairston's property constitutes a trespass. The court ordered O'Neill to remove the portion of her fence extending onto Hairston's property and enjoined O'Neill from trespassing on Hairston's property or blocking access to Hairston's property from the main road. The court found that Hairston was entitled to a jury trial on compensatory damages, denied Hairston's motion for summary judgment as to whether the fence constitutes a "spite" fence, and specifically stated that it was not addressing O'Neill's counterclaims. O'Neill appeals the trial court's ruling that her fence extends beyond the boundary of her propery.

In related enumerations of error, O'Neill asserts that the trial court erred in finding there are no genuine issues of material fact regarding the location of the boundary line and whether her fence extends onto Hairston's property. According to O'Neill, the trial court improperly rejected her evidence and gave conclusive weight to Hairston's evidence. We agree.

In Georgia, surveys or plats made by a county surveyor pursuant to OCGA § 36-7-12 are presumptive evidence of the facts set out therein.^[3] However, if a survey does not meet the requirements of OCGA § 36-7-12, "it carries no presumptive value as evidence of the facts, although, if verified by oral testimony, it is admissible as a part of and as illustrative of such oral testimony for whatever it may be worth." Durden v. Kerby, 201 Ga. 780, 782 (1) (41 S.E.2d 131) (1947). This rule

is in accord with the generally accepted practice of admitting plats or diagrams for whatever they may be worth; not as original, independent evidence, but on the theory that they are nothing more than verified pictorial representations of matters about which the witness has properly testified, and as being a desirable expediency by which to illustrate the witness's testimony as to the location of the land thus represented.

Id.; accord Clark v. Stafford, 239 Ga.App. 69, 70 (522 S.E.2d 6) (1999).

Here Hairston does not assert that her survey was conducted in accordance with OCGA § 36-7-12. She, nonetheless, maintains...