Plantation At Bay Creek Homeowners Ass'n, Inc. v. Glasier

349 Ga.App. 203

825 S.E.2d 542

The PLANTATION AT BAY CREEK HOMEOWNERS ASSOCIATION, INC.

v.GLASIER et al.

A18A2151

Court of Appeals of Georgia.

March 6, 2019

Lueder Larkin & Hunter, John T. Lueder, David C. Boy IV, for appellant.

Prebula & Associates, Mary A. Prebula, for appellees.

Doyle, Presiding Judge.

The Plantation at Bay Creek Homeowners Association, Inc. ("the HOA"), sued Allan and Glendee Glasier, who owned a home in the community, seeking equitable reformation of the revised plat of the Glasiers' property and injunctive relief preventing the Glasiers from interfering with the rights of the HOA and its members to use a purported pedestrian easement providing access from a cul-de-sac to a lake located behind the Glasiers' property. The Glasiers filed an answer and counterclaim including eight counts: quiet title (Count 1); a declaratory judgment as to the revised plat (Count 2); breach of quiet enjoyment (Count 3); an injunction prohibiting any person from crossing their property without permission (Count 4); trespass (Count 5); theft by taking (Count 6); intentional infliction of emotional distress (Count 7); and attorney fees and expenses pursuant to OCGA § 13-6-11 (Count 8). After the parties filed cross-motions for partial summary judgment, a court-appointed special master issued a report concluding that there was no easement across the Glasiers' property. The trial court adopted the special master's report; denied the HOA's summary judgment motion as to its claims; granted summary judgment to the Glasiers as to their counterclaims for quiet title, declaratory judgment, and injunctive relief; and denied the parties' cross-motions for summary judgment as to the Glasiers' remaining counterclaims. The HOA appeals. For the reasons that follow, we affirm the denial of the HOA's summary judgment motion as to its claims, affirm the ruling regarding the Glasiers' counterclaims 1-6 and 8, and reverse the denial of summary judgment to the HOA on the Glasiers' counterclaim for intentional infliction of emotional distress.

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 a judgment as a matter of law. When a plaintiff moves for summary judgment, he has the burden of establishing the absence or non-existence of any defense raised by the defendant. When a defendant moves for summary judgment, he has the burden of 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. We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Because this opinion addresses cross-motions for summary judgment, we will construe the facts in favor of the nonmoving party as appropriate.¹

So viewed, the record shows that the Bay Creek subdivision, which is located in Gwinnett County, is comprised of three neighborhoods. The subdivision plat, which was recorded on April 29, 2000, shows a 21.59-acre recreation area, which includes a retention pond (referred to as a lake), a pool, a playground, and pickle ball and tennis courts. The lake is bordered entirely on one side with lots; the only road to the recreation area is outside of the subdivision.

On October 9, 2003, Karen Kilbourne purchased Lot 47 from the developers, which lot abuts a cul-de-sac on the northwest corner and the lake on the south boundary line. Revisions 1, 2, and 3 of the plat² for the subdivision, which were filed in 2000, 2001, and 2004, depict Lot 47 as follows:

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During her ownership of Lot 47, Kilbourne disputed the existence of a pedestrian easement on her property and repeatedly denied access to those who attempted to access the lake via her property without permission, including calling the police multiple times. In or around 2007, after complaints from Kilbourne, the HOA advised its members that there was no access to the lake through Lot 47, and it had a sign erected on the lot line between Lots 46 and 47 that said "NO LAKE ACCESS/NO PARKING."³

On November 27, 2012, the Glasiers purchased the home and property on Lot 47 from Kilbourne. The warranty deed provides that the conveyance is "subject to all ... easements and restrictions of record affecting said bargained premises," but it does not specifically mention a pedestrian easement. At the time of the purchase, the "NO LAKE ACCESS" sign was still in the yard. In April 2014, the HOA president, Charles Lorentz, entered the Glasiers' yard without their permission and took the sign. Soon thereafter, people crossed over the Glasiers' property to access the lake on approximately 100 occasions.⁴ When Mrs. Glasier spoke with the people traversing her property, some of them stated that the HOA told them they could access the lake through the Glasiers' property. The Glasiers protested the removal of the sign to an HOA board member, at which time they learned that the HOA planned to install a concrete pad for access from the cul-de-sac to the lake. The Glasiers also installed personal "No Trespassing" signs on their property, but the HOA required the Glasiers to remove them.

Mrs. Glasier contacted Sam Evans, the original surveyor, about the easement issue. After looking at his records, Evans advised her that "he didn't see anything that would show an easement" and that the label "10' PEDESTRIAN ESMT" on the plat for Lot 47 was an error and was not supposed to be there. Mrs. Glasier then presented the information from Evans to the Gwinnett County Department of Planning ("the County"), which approved a revised plat prepared by Evans after investigating the matter.⁵ The revised plat, which removed the label "10' PEDESTRIAN ESMT" from Lot 47, was recorded.

On March 23, 2015, the HOA sued the Glasiers seeking injunctive relief and equitable reformation of the revised plat to reinstate the original plat. The Glasiers asserted their counterclaims against the HOA, and after the parties filed cross-motions for partial summary judgment, the special master issued a report concluding that there was no easement across the Glasiers' property. The trial court then adopted the special master's report, denied the HOA's summary judgment motion as to its claims, granted summary judgment to the Glasiers as to their counterclaims for quiet title, declaratory judgment, and injunctive relief, and denied the parties' cross-motions for summary judgment as to the Glasiers' remaining counterclaims. This appeal followed.

1. Declaratory judgment and injunctive relief . The HOA contends that the trial court erred by adopting the special master's findings of fact and conclusions of law and by granting summary judgment to the Glasiers as to their counterclaims for declaratory judgment and injunctive relief. We disagree.

Concurrent findings by a trial court and special master are entitled to great deference on appeal. Findings of fact will not be reversed unless they are clearly erroneous, and as long as there is any evidence in the record to support a particular finding, it will not be disturbed. By contrast, conclusions of law by a trial court and special master are subject to de novo review on appeal.⁶

Here, the special master concluded that the term "10' PEDESTRIAN ESMT" on the plat for Lot 47 "is void for uncertainty of description." This conclusion is supported by the evidence.

Although the law does not require legal perfection in the description of an easement, the description must be sufficiently full and definite to afford means of identification. While it is not necessary that the instrument should embody a minute or perfectly accurate description of the land, yet it must furnish the key to the identification of the land intended to be conveyed by the grantor. If the premises are so referred to as to indicate the grantor's intention to convey a particular tract of land, extrinsic evidence is admissible to show the precise location and boundaries of such tract. The test as to the sufficiency of the description of property contained in a deed is whether or not it discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of the land therein referred to, so that its identification is practicable.⁷

"The question of whether or not a description is sufficient to convey property[ ] is one of law for the courts to decide."⁸

The phrase "10' PEDESTRIAN ESMT" appears horizontally across Lot 47. There are no lines, arrows, or other markings connecting the phrase to the plat, and it is unclear if "10'" applies to the length or width of any purported easement or if the easement is uniform in either of those dimensions. Thus, the plat

provides no means to identify the quantity or location of the easement intended to be conveyed. The description does not clearly identify the dimensions of the easement or where it begins, leads, or ends. [And t]here is nothing in the record to support the [HOA's] contention that the [plat] shows the location of the intended easement.⁹

Moreover, as the special master concluded, the plat provides no key for determining the location of the easement "such that extrinsic evidence may be added to determine its precise location."¹⁰

Accordingly, the trial court did not err by granting summary judgment to the Glasiers on their counterclaims for a declaratory judgment and injunctive relief.¹¹

2. Quiet title . Based on our holding in Division 1, the trial court did not err by granting summary judgment to the Glasiers on their counterclaim for quiet title and by denying the HOA's summary judgment motion as to that claim.

3. The HOA's claims . For the same reason, the trial court did not err by denying the HOA's summary judgment motion as to its claims for equitable reformation of the plat and injunctive relief.

4. Trespass . The HOA argues that the trial court erred by denying its motion for summary...