Davis v. Foreman
311 Ga. App. 775
Ga. Ct. App.2011Background
- Tibsen & Fair developed Dogwood Forest in Charlton County and recorded a first plat showing a 0.394-acre common area for residents, deeded to the HOA.
- Tibsen later recorded a second plat omitting the original common area, creating a 0.310-acre common area and incorporating the original area into a new lot sold to Marion Davis.
- Plaintiffs claimed an easement in the original 0.394-acre common area by deeds referencing the first plat and sought declaratory judgment and injunctive relief against the developers and Davis.
- Trial court denied the plaintiffs’ initial summary judgment motion but noted well-established law that sale of a lot referencing a plat with a common area completes the easement grant, while preserving a fact issue on abandonment.
- Plaintiffs renewed their summary judgment motion with Foreman’s affidavit denying any HOA discussions or documents transferring, trading, or abandoning the original common area.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Davis waived or abandoned the original easement. | Davis contends HOA/defendants abandoned the original easement by exchanging plats. | There was no express abandonment; no agreement or documents to transfer the easement. | No triable issue; abandonment not shown; summary judgment proper. |
| Whether the trial court could grant a renewed summary judgment after an earlier denial. | Renewed motion with expanded record supports entitlement to summary judgment. | Earlier denial precludes renewal or shows disputed facts. | Trial court did not err; renewed motion properly considered. |
| Whether the plaintiffs acquired an express easement by sale of lots referencing the first plat. | Purchasers obtain an irrevocable easement by plat reference and deed. | Second plat extinguishes or alters the prior easement rights by replacement. | Plaintiffs acquired an original easement; cannot be diminished without express abandonment. |
| Whether law-of-the-case or res judicata bars reconsideration. | Denial of interlocutory appeal could bind the issues. | Interlocutory denial does not create res judicata for nonfinal rulings. | Law-of-the-case/Res judicata principles do not bar the renewed summary judgment. |
Key Cases Cited
- Patterson v. Powell, 257 Ga. App. 336, 571 S.E.2d 400 (2002) (plat-based easements contemplate subsequent ownership and use rights)
- Smith v. Bruce, 241 Ga. 133, 244 S.E.2d 559 (1978) (sale of lots with plat reference completes grant of easement)
- Hampton Ridge Homeowners Assn. v. Marett Properties, 265 Ga. 655, 460 S.E.2d 790 (1995) (express abandonment through HOA action when developer retains rights)
- Continental Corp. v. Dept. of Transp., 185 Ga. App. 792, 366 S.E.2d 160 (1988) (law-of-the-case rule and appellate binding effect in later proceedings)