FOLEY COMMONS PROPERTY OWNERS ASSOCIATION, INC. v. CATHERINE M. KRAMARICH

• Court: Court of Appeals of Georgia
• Decided: November 3, 2022
• Docket: A22A1157
• Status: Published

Opinion

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

November 3, 2022

In the Court of Appeals of Georgia A22A1157. FOLEY COMMONS PROPERTY OWNERS ASSOCIATION, INC. v. KRAMARICH et al.

PHIPPS, Senior Appellate Judge.

Following a bench trial in this dispute over the ownership of, and right of

access to, part of an approximately 20-foot-wide alleyway in Athens, the trial court

entered a verdict and final judgment in favor of respondents Catherine Kramarich and

Alan Lantz and against petitioner Foley Commons Property Owners Association, Inc.

Foley appeals, contending that the trial court erred by: (i) finding that the alleyway

was neither (a) “unopened” nor (b) “abandoned” by Kramarich and other adjoining

landowners; and (ii) failing to find that Foley acquired prescriptive title to the

disputed part of the alleyway either as a private way or by adverse possession. Because the trial court’s rulings are supported by some evidence and there has been

no showing of legal error, we affirm.

The alleyway at issue in this appeal runs roughly from east to west between

Pinecrest Drive (on the east) and Northview Drive (on the west) and north of, and

largely parallel to, Morton Avenue in Athens. Foley owns developed real property on

the western side of Pinecrest Drive, immediately north of the alleyway (the “Foley

Property”). Kramarich owns developed real property on the northern side of Morton

Avenue, immediately south of the alleyway, and roughly 200 feet west of Pinecrest

Drive (the “Kramarich Property”).1 The portion of the alleyway at issue in this appeal

runs approximately 200 feet between Pinecrest Drive (on the east) and the

northeastern corner of the Kramarich Property (on the west).

This case began in October 2018, when Foley filed a petition for declaratory

and injunctive relief, naming Kramarich and Lantz as respondents, and seeking, in

relevant part: (i) an injunction barring Kramarich and Lantz from accessing the

alleyway; (ii) a declaration that Foley owns the disputed part of the alleyway; (iii) a

declaration that the alleyway is closed to vehicular traffic; and (iv) monetary

1 When this lawsuit began in October 2018, Kramarich and Lantz jointly owned the Kramarich Property. In March 2020, Lantz conveyed his interest in the property to Kramarich.

2 damages.2 The case proceeded to a bench trial, following which the trial court entered

a verdict and final judgment in favor of Kramarich and Lantz on each of Foley’s

claims for relief. This appeal followed.

1. We first address Foley’s contention that the trial court erred by failing to find

that Foley acquired prescriptive title to the disputed part of alleyway either (a) as a

private way by seven years’ uninterrupted use or (b) via adverse possession for seven

years under color of title.3 Where, as here, an appeal is filed from the entry of

judgment following a bench trial, “we apply a de novo standard of review to any

questions of law decided by the trial court, but will defer to any factual findings made

by that court if there is any evidence to sustain them.” Central Mtg. Co. v. Humphrey,

328 Ga. App. 474, 475 (759 SE2d 896) (2014) (citation and punctuation omitted). For

the reasons that follow, we discern no reversible error in the challenged rulings.

(a) Private way. “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

2 While Kramarich asserted two counterclaims in her answer, she dismissed them before trial. 3 On appeal, Foley has abandoned the claim asserted in its complaint that it acquired prescriptive title to the disputed part of the alleyway via adverse possession for 20 years, under OCGA § 44-5-163.

3 law.” OCGA § 44-5-160. As relevant here, OCGA § 44-9-1 provides, “The right of

private way over another’s land may arise from . . . prescription by seven years’

uninterrupted use through improved lands . . . .” A plaintiff seeking to establish a

private way in that manner bears the burden of showing, inter alia, that he or a

predecessor-in-title kept in repair and used for seven uninterrupted years an alleged

private way no more than twenty feet wide. Floyd v. Chapman, 353 Ga. App. 434,

436-437 (1) (838 SE2d 99) (2020).

Importantly, Foley does not identify, and research has not revealed, any legal

authority suggesting that one who has acquired a private way, without more, may

exclude others therefrom. Cf. OCGA § 44-9-1 (referring to “[t]he right of private way

over another’s land”) (emphasis supplied). And each of Foley’s claims for relief is

premised on the proposition that it owns, or otherwise has the right to exclude others

from, the disputed part of the alleyway.4 But because Foley has not shown that any

4 To the extent that Foley’s claim for monetary damages did not require a finding that it either owns or has the right to exclude others from the disputed part of the alleyway, Foley has waived any appellate challenge it may have to the verdict and judgment against it in that regard by failing to raise any such challenge in its appellate briefs. See Gresham v. Harris, 349 Ga. App. 134, 138 (1), n. 10 (825 SE2d 516) (2019) (concluding that the appellant waived any claim that the trial court erred in making a certain finding “by failing to enumerate it as an error and provide any supporting argument” on appeal); Karlsberg v. Hoover, 142 Ga. App. 590, 594 (236

4 such rights would arise out of a private way (at least on the facts of this case),

whether a private way has been established is irrelevant to Foley’s claims for relief.

This contention thus presents nothing for us to review.

(b) Adverse possession. 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 of another”; (ii) did not originate in fraud, with exceptions not

relevant here; (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 other exceptions

also not relevant here.

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

SE2d 520) (1977) (“[A]n appellant is required in its initial brief to file an argument which supports any enumerations of error it does not wish to waive.”).

5 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). 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).

The evidence here authorized the trial court to find that Foley did not meet its

burden of showing that it acquired written title to the disputed part of the alleyway.

Foley acquired the Foley Property via an August 2008 Limited Warranty Deed

executed by Pinecrest Six, LLC, as the grantor. Exhibit “A” to the August 2008 deed

describes the property being conveyed as a parcel of land “designated as ‘0.803

Acres’” in a June 27, 2008 plat of survey recorded in Plat Book G, page 122-B, of the

county real estate records. Exhibit “A” then lays out a metes and bounds description

of the property.

6 A comparison of the metes and bounds description of the Foley Property with

the cross-referenced June 2008 plat shows that the property’s southern boundary is

defined as follows: “BEGINNING at an iron pin located South 76 degrees 27 minutes

44 seconds West 21.88 feet from the intersection of the rights-of-way of Burnett

Street and Pinecrest Drive (40’ R/W); running thence South 82 degrees 51 minutes

00 seconds West 197.05 feet to an iron pin . . . .” And in the June 2008 plat, the

alleyway lies entirely to the south of that boundary. This evidence was sufficient for

the trial court to find that Foley did not obtain color of title to the disputed part of the

alleyway. See OCGA § 44-5-167 (“Possession under a duly recorded deed shall be

construed to extend to all the contiguous property embraced in such deed.”)

(emphasis supplied); Sitterli v. Csachi, 344 Ga. App. 671, 672 (1) (811 SE2d 454)

(2018) (“At a bench trial, the trial court can determine when essential facts have not

been proved. The trial court’s determination as a trier of fact will be reversed only

where the evidence demands a contrary finding.”) (citation and punctuation omitted).

Foley contends, however, that its color-of-title claim is supported by a March

2007 Limited Warranty Deed in which Robert B. Pease, III, as grantor, conveyed to

Pinecrest Six (the grantor in the August 2008 deed to Foley) three tracts of land that

ultimately became the Foley Property. But Pinecrest Six is not a party to this action.

7 What matters for purposes of Foley’s claim of adverse possession under color of title

is whether the subsequent August 2008 deed conveyed the alleyway to Foley. And,

as stated above, there was some evidence supporting the trial court’s conclusion that

Foley was not conveyed the alleyway in the August 2008 deed (and thus does not

own it), regardless of whether Pease or Pinecrest Six ever owned it. The March 2007

deed does not change that.

Finally, Foley also highlights the trial testimony of Ronnie Dale Hughes, who

owns one of six townhomes on the Foley Property. According to Foley, Hughes

testified that Pinecrest Six conveyed the disputed part of the alleyway to Foley in

2008. Even assuming, however, that Foley’s description of Hughes’s testimony is

accurate, the trial court, as the factfinder, was entitled to find that any such testimony

contradicted the August 2008 deed and to resolve that discrepancy against Foley. See

Brooks v. Green, 277 Ga. 722, 723 (1) (594 SE2d 629) (2004) (in a bench trial, it was

for the trial court, as the finder of fact, to resolve conflicts in the evidence as to

whether certain land was conveyed in a deed); Cousin v. Tubbs, 353 Ga. App. 873,

875 (1) (840 SE2d 85) (2020) (“as the factfinder, it is the trial court’s duty to

reconcile seemingly conflicting evidence”) (citation and punctuation omitted).

8 Consequently, the trial court did not clearly err when it rejected Foley’s claim that it

owns the disputed part of the alleyway.

2. Foley also contends that the trial court erred by finding that the alleyway was

neither (a) “unopened” nor (b) “abandoned” by Kramarich and similar landowners.

While Foley’s argument on this issue is not the model of clarity, it appears to assert

that: (i) any rights Kramarich may have had to the disputed part of the alleyway are

in the nature of an easement; and (ii) Kramarich and her predecessors-in-interest

abandoned such rights, as shown by an extensive period of nonuse and evidence that

the western end of the alleyway — the end opposite the disputed portion — is closed

off by trees, brush, and structures.

We first note that the trial court made no explicit findings that the alleyway was

neither “unopened” nor “abandoned,” likely because the parties affirmatively agreed

that the court would not issue findings of fact and conclusions of law with its verdict

and judgment. In any event, pretermitting whether such findings necessarily are

implicit in the court’s verdict and judgment, they are immaterial on the procedural

posture of this case. That is because, given our ruling in Division 1 that the trial court

did not err when it rejected Foley’s claims that it acquired title to the disputed part of

9 the alleyway, Foley lacks standing to challenge any easement rights that Kramarich

may have to that part of the alleyway.

Each of the claims raised in Foley’s complaint and at issue in this appeal rests

on the proposition that it has the right to exclude Kramarich and others from the

disputed (i.e., paved) part of the alleyway because it owns that part of the alleyway.5

In Division 1, we affirmed the trial court’s ruling that Foley did not meet its burden

of showing that it acquired title to the disputed part of the alleyway by adverse

possession, which was Foley’s sole claim to ownership. And Foley identifies no other

basis for its claimed right to exclude Kramarich from the disputed part of the

alleyway.6 See generally Floyd, 353 Ga. App. at 438 (2) (“The term ‘property’

includes not only the land possessed, but also the rights of the owner in relation to

that land. The owner has the rights to possess, use and dispose of the property and the

corresponding right to exclude others from using the property.”) (citation and

punctuation omitted); accord GeorgiaCarry.Org v. Atlanta Botanical Garden, 306

Ga. 829, 844 (834 SE2d 27) (2019) (Peterson, J., concurring) (observing that “the

5 See note 4, above. 6 As stated above, Foley has not shown that its claim regarding a private way gives rise to the right to exclude others. See Division 1 (a), above.

10 right to exclude others from one’s property” is “one of the most essential sticks in the

bundle of rights that are commonly characterized as property”) (citations and

punctuation omitted).

Regardless of whether any rights Kramarich may have to the disputed part of

the alleyway are in the nature of an easement, Foley lacks standing to challenge any

such rights absent the authority to exclude others therefrom. See New Cingular

Wireless PCS v. Dept. of Revenue, 308 Ga. 729, 732 (843 SE2d 431) (2020) (“[T]o

maintain an action, a party must establish standing to sue on the ground asserted,

which requires showing an injury in fact that was caused by the breach of a duty owed

by the defendants to the plaintiffs and that will be redressed by a favorable decision

from the court.”) (citation and punctuation omitted); Equitable Life Assur. Society v.

Tinsley Mill Village, 249 Ga. 769, 770, 771 (2) (294 SE2d 495) (1982) (concluding

that an unincorporated association lacked standing to bring an action for negligent

construction and maintenance of culverts and injunctions prohibiting others from

maintaining a nuisance and developing any upstream properties, because the

association had “shown no right of possession to any of the property claimed to have

been damaged”); Moses v. Traton Corp., 286 Ga. App. 843, 844-845 (1)-(2) (650

SE2d 353) (2007) (concluding that the plaintiff in a trespass action lacked standing

11 because: (i) his interest in the property was “not one whereby he [could] assert that

he possesse[d] the land to the exclusion of others”; and (ii) “the subject property

[was] not within the lot described in [his] deed”); see also generally OCGA § 9-11-17

(a) (“Every action shall be prosecuted in the name of the real party in interest.”);

Phillips v. Selecto Scientific, 308 Ga. App. 412, 412-413 (1) (707 SE2d 615) (2011)

(observing that “[t]he real party in interest is the person, who, by the substantive

governing law, has the right sought to be enforced” and that “a person may only

challenge a ruling that has adversely affected his or her own rights”) (citation and

punctuation omitted). As a result, Foley’s claim that the trial court erred by finding

that the alleyway was neither “unopened” nor “abandoned” by Kramarich presents

nothing for us to review, as it is immaterial to the outcome of this appeal on the facts

and procedural posture of this case.7 See, e.g., City of Atlanta v. Atlanta Independent

School System, 307 Ga. 877, 880 (838 SE2d 834) (2020) (because the jurisdiction of

7 We note that our ruling here is a limited one: that Foley has not met its appellate burden of showing that the trial court erred by rejecting Foley’s claim that it acquired title to the disputed part of the alleyway via adverse possession. In so ruling, we express no opinion on who owns any of the alleyway, whether any such owner or owners may have the right to exclude others from some or all of the alleyway, and/or whether Kramarich’s rights to the alleyway — if any — are in the nature of an easement or other property right.

12 the courts of this state “is confined to justiciable controversies, . . . the courts may not

properly render advisory opinions”) (citation and punctuation omitted).

Judgment affirmed. Doyle, P. J., and Reese, J., concur.