Sherman v. Thomas-Lane American Legion Post 597
330 Ga. App. 618
Ga. Ct. App.2015Background
- Sherman appeals trial court’s grant of summary judgment to Post 597 on prescriptive title under OCGA § 44-5-163.
- Post 597 purchased Lot 3 in Norris Gunby Subdivision; Lot 3 adjoins Sherman’s Lot 1.
- Post 597 asserts about 35 years of exclusive, public possession up to a fence line behind a concrete building.
- Buildings and maintenance occurred 1985–1994; fence removed in 2009; Sherman purchased land and surveyed in 2011, claiming Post 597 encroachment.
- Post 597 sought declaratory judgment in 2012 and the trial court granted summary judgment; Sherman appeals the ruling.
- Opinion reverses the grant of summary judgment due to issues surrounding the boundary description and lack of certitude linking the fence line to the claimed boundary.]
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of response and waiver of evidence | Sherman argues timely response; otherwise no waiver | Post 597 contends waiver of right to present evidence | Waiver found for affidavits and response; no automatic grant of summary judgment |
| Adequacy of possession to establish prescription | Post 597 possessed land adversely for prescriptive title | Possession was casual or permissive, not adverse | No reversible error on notice/possession; evidence supports public, continuous possession |
| Evidence linking fence line to boundary | Fence line behind concrete building defines boundary | Survey describes boundary but not proven to match fence line | Summary judgment reversed due to lack of certitude linking fence line to boundary |
| Certitude standard on boundary in summary judgment | Post 597 met certitude to prevail | Record lacks evidence establishing exact boundary distance | Trial court failed to show no genuine issue; reversal on boundary issue |
Key Cases Cited
- C. D. Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783 (1972) (nonmovant may rely on movant’s failure to remove fact questions; timely response required for opposition)
- Henderson v. Caughran, 182 Ga. App. 657 (1987) (opposition must be timely; rules governing responses to motions)
- Brown v. Williams, 259 Ga. 6 (1989) (notice requirements for opposing affidavits; 30-day deadline)
- Nichols v. Frey, 185 Ga. App. 829 (1988) (necessity of certitude in moving party’s proof; burden on opposing affidavits)
- Bogart v. Wisconsin Inst. for Torah Study, 321 Ga. App. 492 (2013) (certitude standard for summary judgment evidence)
- Tolnas v. Pope, 212 Ga. 50 (1955) (early authority on possessory rights and boundaries)
- Walker v. Sapelo Island Heritage Auth., 285 Ga. 194 (2009) (considerations on possession and notice in boundary disputes)
- Proctor v. Heirs of Jernigan, 273 Ga. 29 (2000) (actual notice not required absent permission-based possession; notice doctrine)
- Revocable Trust of Timothy W. Griffin v. Timberlands Holding Co. Atlantic, Inc., 328 Ga. App. 33 (2014) (reaffirmation of summary judgment standards)