THIRD DIVISION DOYLE, P. J., REESE, J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
August 16, 2022
In the Court of Appeals of Georgia A22A1111. BC EAV, LLC v. HAVLIK.
PHIPPS, Senior Appellate Judge.
In this dispute over the boundaries of a parcel of developed real property on
McPherson Avenue in Atlanta (the “McPherson Property”), plaintiff (and defendant-
in-counterclaim) BC EAV, LLC appeals from a trial court order that (a) denied BC
EAV’s objection to and motion to reject a special master’s report and
recommendations and (b) thereby effectively granted summary judgment to defendant
(and plaintiff-in-counterclaim) Gwendolyn Havlik. On appeal, BC EAV contends that
it, rather than Havlik, was entitled to summary judgment. Because the special master
and trial court correctly concluded that no disputed issues of material fact remain and
that Havlik’s predecessor-in-interest acquired prescriptive title to the disputed part
of the McPherson Property by adverse possession, we affirm the trial court’s rulings. The record shows that G. M. Wright conveyed the McPherson Property to
Jessie and Erby Harper in 1965.1 The description of the property included in Wright’s
1965 warranty deed provides that its northernmost boundary is approximately 94 feet
north of McPherson Avenue. In June 1991, the DeKalb County Probate Court issued
a Certificate of Order of Year’s Support granting Erby Harper’s undivided one-half
interest in the McPherson Property to Jessie Harper, as Erby Harper’s widow. The
property’s description in the 1991 certificate again provides that its northern
boundary is approximately 94 feet north of McPherson Avenue.
In July 1993, a quitclaim deed again granting the McPherson Property to Jessie
Harper was executed by an individual identified as Weldon Way. The property
description included in Way’s quitclaim deed provides that the northernmost property
line is approximately 144 feet north of McPherson Avenue. Neither party has
uncovered any evidence (other than the July 1993 quitclaim deed) that Way ever held
any interest in the McPherson Property or in the 50-foot-wide tract between 94 feet
and 144 feet north of McPherson Avenue (the “50-Foot Extension”).
In April 2003, Michael and Patrick Mock bought the McPherson Property from
the executor of Jessie Harper’s estate. The property description included in the April
1 Erby Harper at times is referred to in the record as “Kirby” Harper.
2 2003 executor’s deed provides that the northern boundary of the property is
approximately 144 feet north of McPherson Avenue. John Fay bought the McPherson
Property from the Mocks in May 2005. The property description attached to the
Mocks’ May 2005 warranty deed again provides that the northernmost property line
is approximately 144 feet north of McPherson Avenue. A property description
attached to a security deed executed by Fay at that time similarly provides that the
northern boundary is approximately 144 feet north of McPherson Avenue. Fay
erected a fence enclosing his backyard — including the 50-Foot Extension —
sometime before December 2008. The fence — which is visible from McPherson
Avenue — has remained in place since then.
Havlik bought the McPherson Property from Fay in April 2017. The property
description attached to Fay’s April 2017 limited warranty deed (the “2017 Limited
Warranty Deed”) again provides that the northernmost property line is approximately
144 feet north of McPherson Avenue.
In October 2019, BC EAV entered into a purchase and sale agreement to buy
nine parcels of property in Atlanta from R.E.M.A. US Investments, LLC. The
transaction was completed in January 2020. One of the parcels, with a parcel number
ending in “074,” overlaps the 50-Foot Extension in the McPherson Property.
3 In March 2020, BC EAV sued Havlik, asserting claims for a declaratory
judgment, quiet title, and trespass and injury to real estate. BC EAV sought, in
relevant part: (i) a declaration that the conveyance of the 50-Foot Extension to Havlik
is ineffectual; (ii) a cancellation of the 2017 Limited Warranty Deed; (iii) a decree in
equity ordering Havlik to remove all encroachments upon BC EAV’s property; and
(iv) submission of the case to a special master. Havlik answered, asserted a
counterclaim for adverse possession under color of title, and also sought the
appointment of a special master. The trial court thereafter appointed a special master
to, inter alia, prepare a report and recommendation for the court’s consideration.
Following discovery, BC EAV moved for summary judgment, contending that
Havlik cannot establish that she acquired prescriptive title to the 50-Foot Extension
via adverse possession because neither she nor her predecessor-in-title ever had a
legitimate claim of right to the property, as both Havlik and Fay had actual and
constructive knowledge that the 50-Foot Extension was not a part of the McPherson
Property. Havlik also moved for summary judgment, asserting with respect to her
adverse possession claim, as relevant to this appeal, that she and Fay both took title
to the McPherson Property (including the 50-Foot Extension) in good faith, with no
notice of forgery or fraud.
4 The special master issued a detailed report recommending that Havlik’s motion
for summary judgment be granted and that BC EAV’s motion be denied. BC EAV
thereafter filed objections to and a motion to reject the report and recommendations,
which the trial court denied, thereby effectively granting summary judgment to
Havlik and denying summary judgment to BC EAV. This appeal followed.
“We review de novo a grant or denial of summary judgment, viewing the
evidence and all reasonable conclusions and inferences drawn from it in the light
most favorable to the nonmovant.” Henry v. Griffin Chrysler Dodge Jeep Ram, 362
Ga. App. 459, 460 (868 SE2d 827) (2022).
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the movant meets this burden, the nonmovant cannot rest on his pleadings, but rather must point to specific evidence giving rise to a triable issue.
Id. at 460-461 (citations and punctuation omitted); see OCGA § 9-11-56 (c), (e). In
that vein, “speculation which raises merely a conjecture or possibility is not sufficient
to create even an inference of fact for consideration on summary judgment.” Ellison
5 v. Burger King Corp., 294 Ga. App. 814, 819 (3) (a) (670 SE2d 469) (2008) (citation
and punctuation omitted). “Because this opinion addresses cross-motions for
summary judgment, we will construe the facts in favor of the nonmoving party as
appropriate.” Plantation at Bay Creek Homeowners Assn. v. Glasier, 349 Ga. App.
203, 204 (825 SE2d 542) (2019) (citations and punctuation omitted).
In two related enumerations of error, BC EAV contends on appeal that the trial
court erred by granting summary judgment to Havlik and denying summary judgment
to BC EAV. According to BC EAV, Havlik cannot establish title by prescription to
the 50-Foot Extension via adverse possession under color of title because any
possible claim to the extension “originated in fraud,” and, BC EAV argues, Fay
therefore “had no good faith claim of ownership” of the extension when he took
possession of the McPherson Property. We disagree.
“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. Under OCGA § 44-5-161 (a), a party may establish prescriptive title by
adverse possession where the possession: (i) is “in the right of the possessor and not
6 of another”; (ii) did not originate in fraud, except as provided in OCGA § 44-5-162;2
(iii) is “public, continuous, exclusive, uninterrupted, and peaceable”; and (iv) is
“accompanied by a claim of right.” Accord Simmons v. Community Renewal &
Redemption, 286 Ga. 6, 6 (1) (685 SE2d 75) (2009); Ga. Power Co. v. Irvin, 267 Ga.
760, 761-762 (1) & n. 2 (482 SE2d 362) (1997). And under OCGA § 44-5-164,
“[p]ossession of real property under written evidence of title in conformance with the
requirements of Code Section 44-5-161 for a period of seven years shall confer good
title by prescription to the property” (with exceptions not relevant here), unless “the
written title is forged or fraudulent and . . . the person claiming adverse possession
had actual notice of such forgery or fraud when he commenced his possession.”
Moreover, “[p]rescriptive title may be obtained by tacking on successive
possession in the chain of title . . . .” Nebb v. Butler, 257 Ga. 145, 145 (357 SE2d
257) (1987); see OCGA § 44-5-172 (“An inchoate prescriptive title may be
transferred by a person in possession to his successor so that successive possessions
may be tacked to make out the prescription.”). Adverse possession under color of title
2 OCGA § 44-5-162 provides that “(a) [i]n order for fraud to prevent the possession of property from being the foundation of prescription, such fraud must be actual or positive and not merely constructive or legal”; and “(b) [w]hen actual or positive fraud prevents or deters another party from acting, prescription shall not run until such fraud is discovered.”
7 therefore may be established by showing that one or more predecessors-in-interest
satisfied all of the requirements of OCGA § 44-5-164 for the requisite seven-year
period. See Wisenbaker v. Warren, 196 Ga. App. 551, 553-554 (3) (396 SE2d 528)
(1990).
For purposes of adverse possession, the concept of “color of title” entails “a
writing upon its face professing to pass title, but which does not do it, either from
want of title in the person making it, or from the defective conveyance that is used —
a title that is imperfect, but not so obviously so that it would be apparent to one not
skilled in the law.” Ponder v. Ponder, 275 Ga. 616, 619 (2) (571 SE2d 343) (2002)
(citation and punctuation omitted). Thus, “[t]o entitle the possessor to the benefit of
his color of title, there must be a writing[,] it must purport to convey the property to
the possessor[,] it must contain such a description of the property as to render it
capable of identification, and the possessor must in good faith claim the land under
it.” Irvin, 267 Ga. at 765 (1) (c) (citation, punctuation, and emphasis omitted). For
example, “a quitclaim deed, taken in good faith, is within itself sufficient color of title
upon which to base prescription.” Miles v. Blanton, 211 Ga. 754, 758 (88 SE2d 273)
(1955).
8 If a person buys land in good faith, believing he is obtaining a good title, and enters into possession thereof, and remains there continuously, uninterruptedly, peaceably, etc. for seven years, that possession ripens into a good title, whether the title he purchased originally was good or not. The very object of the doctrine of prescription is to make a bad title good when the necessary requisites have been complied with. When an adverse possessor has held for the requisite period and his prescriptive title ripens, it extinguishes all other inconsistent titles and itself becomes the true title.
Barfield v. Vickers, 200 Ga. 279, 281 (36 SE2d 766) (1946) (citations and
punctuation omitted).
Because good faith is a prerequisite to acquiring title by prescription under
color of title pursuant to OCGA § 44-5-164, “one holding possession under color of
title, which he knows was fraudulently procured, can not acquire prescriptive title
regardless of the period of time such possession is held.” Armour v. Peek, 271 Ga.
202, 203 (2) (517 SE2d 527) (1999) (citation and punctuation omitted, emphasis
supplied). Thus, for fraud to “vitiate the good faith requirement and prevent the
running of the period of prescription,” it must be “not legal but moral fraud,” i.e., “a
consciousness of doing wrong.” Ponder, 275 Ga. at 619 (2) (citation and punctuation
omitted). In other words, “[t]o defeat prescriptive title, the fraud of the party claiming
9 thereunder must be such as to charge his conscience. He must be cognizant of the
fraud, not by constructive but by actual notice.” Id. (citation and punctuation
omitted); see OCGA § 44-5-162 (a).
Notably, “[d]irect evidence of bona fides is not required. A presumption of
good faith arises from adverse possession.” Barfield, 200 Ga. at 281 (citations and
punctuation omitted); accord Childs v. Sammons, 272 Ga. 737, 739 (2) (534 SE2d
409) (2000) (good faith is presumed absent evidence that the claim of possession
originated in fraud); Chancey v. Ga. Power Co., 238 Ga. 397, 398 (1) (233 SE2d 365)
(1977) (“possession originating in fraud will not be presumed”); see also OCGA
§ 44-5-162 (a); Goodrum v. Goodrum, 283 Ga. 163, 163 (657 SE2d 192) (2008) (“a
person who claims title by virtue of adverse possession under color of title must have
actual notice of any alleged fraud before that fraud will defeat his adverse possession
claim”). In that regard, a deed purporting to convey fee simple title constitutes
sufficient color of title for purposes of acquiring title by prescription, even if,
unknown to the parties at the time of the transaction, the grantor did not own the
property. See Gigger v. White, 277 Ga. 68, 70-71 (1) (586 SE2d 242) (2003).
The burden of establishing prescriptive title by adverse possession lies on the
party claiming it, Kelley v. Randolph, 295 Ga. 721, 722 (1) (763 SE2d 858) (2014),
10 whereas the burden of establishing fraud is on the party opposing adverse possession,
Barfield, 200 Ga. at 281. Whether adverse possession has been established is a mixed
question of law and fact: the underlying facts constituting adverse possession
generally are to be decided by the factfinder, whereas whether the proven (or, in this
case, undisputed) facts constitute adverse possession is a question of law for the
court. See Irvin, 267 Ga. at 766 (2).
1. BC EAV’s contention that Fay “had no good faith claim of ownership” of
the 50-Foot Extension when he took possession of the McPherson Property because
any such claim “originated in fraud” is misplaced because there is no record evidence
that Fay had actual knowledge of any alleged fraud. The 2005 warranty deed executed
by the Mocks, which includes the 50-Foot Extension in the property description,
constitutes “color of title” for purposes of adverse possession. See Ponder, 275 Ga.
at 619 (2); Irvin, 267 Ga. at 765 (1) (c). In an attempt to establish a disputed factual
issue as to whether Fay had actual knowledge that the color of title was fraudulently
procured, BC EAV highlights a survey of the McPherson Property attached to the
Seller’s Property Disclosure Statement that the Mocks provided to Fay in 2005. The
survey — the date of which is illegible — identifies the property owner as one
11 “Edward L. Mauldin”3 and depicts an L-shaped structure and a smaller, rectangular
structure on a lot that extends approximately 94 feet north of McPherson Avenue.
When viewed in context with the entirety of the disclosure, it is apparent that the
survey was provided for the primary purpose of showing the outline of the original
structure, to which the Mocks had added approximately 350 square feet.
Moreover, the documents attached to the Mocks’ disclosure statement also
included a second, undated survey of the McPherson Property that identifies Jessie
Harper as the client and includes the 50-Foot Extension within the property’s
boundaries.4 And in the body of the disclosure statement, the Mocks marked the space
designated for “No” in response to the question “Are you aware of any
encroachments, unrecorded easements, or boundary line disputes with respect to the
Property?” When viewed in their entirety — and pretermitting whether there is any
3 Given that Mauldin does not appear in either of the chains of title identified by the parties (and discussed above), the survey identifying him as the property owner most likely occurred before G. M. Wright conveyed the McPherson Property to Jessie and Erby Harper in 1965. 4 According to the special master, the parties agree that the Jessie Harper survey was prepared in 2001. That survey also depicts a dashed line at the site of the original northern boundary line, with the abbreviation “IPF” at either end of the dashed line. Neither party points to any record evidence shedding any light on these markings in their appellate briefs.
12 record evidence indicating that title to the 50-Foot Extension in fact may have been
procured by fraud — the disclosure statement and its attachments, at best, give rise
only to a speculative inference that Fay had the required actual notice of any such
fraud. “And where, as here, an inference is founded on speculation, it is without
evidentiary value,” because “[i]nferences must be based on probabilities rather than
mere possibilities.” Handberry v. Manning Forestry Svcs., 353 Ga. App. 150, 158 (1)
(836 SE2d 545) (2019) (citation and punctuation omitted). Rather, “when a party
relies on inferences to prove a point, not only must those inferences be factually
based, they must tend in some proximate degree to establish the conclusion sought
and render less probable all inconsistent conclusions.” Id. (citation and punctuation
omitted). Consequently, the Mauldin survey is insufficient to give rise to a disputed
factual issue with respect to whether Fay had actual notice that title to the 50-Foot
Extension was procured by fraud.
2. BC EAV also contends that Fay “had actual knowledge of these title issues
in 2006,” based on communications in which he engaged with his title insurance
provider after he saw one or more red survey flags posted in his backyard at that time.
But pretermitting whether those events were sufficient to put Fay on notice of a
potential boundary line issue, the relevant question is whether he “had actual notice
13 of [a] forgery or fraud when he commenced his possession.” OCGA § 44-5-164
(emphasis supplied); see Childs, 272 Ga. at 739 (2) (good faith is presumed absent
evidence that the claim of possession originated in fraud); Barfield, 200 Ga. at 281
(possession may ripen into good title “[i]f a person buys land in good faith”)
(citations and punctuation omitted, emphasis supplied). Because anything Fay may
have learned about a potential boundary issue after 2005 is irrelevant to the question
of whether his claim originated in actual fraud, this contention does not impact the
outcome here.
3. In what appears to be an alternative argument, BC EAV maintains that
neither Havlik nor Fay can establish a good faith claim to the 50-Foot Extension
because there are disputed issues of material fact with respect to whether Fay had
actual knowledge of the boundary discrepancy. For the reasons discussed above,
however, whether Fay may have known of a potential boundary line discrepancy
when he acquired the McPherson Property is immaterial absent record evidence from
which a factfinder could conclude that he “had actual notice of [a] forgery or fraud
when he commenced his possession.” OCGA § 44-5-164 (emphasis supplied); see
Childs, 272 Ga. at 739 (2); Barfield, 200 Ga. at 281. As a result, this claim similarly
does not impact our rulings here.
14 4. We also disagree with BC EAV’s contention that our decision in Ponder,
275 Ga. 616, is dispositive of the outcome in this case. In Ponder, we concluded that
issues of fact remained with respect to whether the parties claiming adverse
possession (a) “took possession with implied knowledge that there was a tenancy in
common with [another claimant] as a joint heir” of the prior owner, id. at 618 (1), and
(b) “swore falsely to [a] petition for no administration” of the prior owner’s estate by
failing to disclose all known heirs, “and thus lacked the requisite good faith for their
claim to ripen into prescriptive title,” id. at 619 (2). Setting aside the fact that our
decision in Ponder required application of a statute governing cotenancies, see
OCGA § 44-6-123; Ponder, 275 Ga. at 618 (1) — an issue not present here —
disputed issues of fact remained in Ponder with respect to whether the parties
claiming adverse possession took possession via fraud. See 275 Ga. at 619 (2). Here,
however, the record evidence gives rise only to a speculative inference that Fay had
actual notice of any potential fraud in the acquisition of the 50-Foot Extension. See
Division 1, above. Our rulings in Ponder therefore have no application to the facts
in this case.
5. BC EAV further asserts that Fay’s and Havlik’s failure to pay property taxes
on the 50-Foot Extension also shows the absence of good faith. But even if neither
15 Fay nor Havlik has paid property taxes on the 50-Foot Extension, BC EAV points to
no record evidence establishing that Fay knew, when he acquired the McPherson
Property, that the taxes being assessed for the property did not account for the 50-
Foot Extension, much less that any such knowledge would be sufficient to establish
actual knowledge of fraud in the acquisition of the extension. See OCGA § 44-5-164;
Childs, 272 Ga. at 739 (2); Barfield, 200 Ga. at 281. Consequently, this contention
also has no bearing on our decision.
6. Finally, we note that BC EAV does not contend that any disputed issues of
material fact remain with respect to whether Fay’s and Havlik’s possession was
“public, continuous, exclusive, uninterrupted, and peaceable,” OCGA § 44-5-161 (a)
(3), and under color of title for the requisite seven-year period, see OCGA § 44-5-
164. We therefore affirm the grant of summary judgment to Havlik on these issues.
For each of the above reasons, BC EAV has not met its burden of showing that
the trial court erred when it granted summary judgment to Havlik and denied
summary judgment to BC EAV, and we affirm the trial court’s rulings.
Judgment affirmed. Doyle, P. J., and Reese, J., concur.