FIRST DIVISION BARNES, P. J., PIPKIN and LAND, JJ.
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
June 20, 2023
In the Court of Appeals of Georgia A23A0628. SMARTT v. ELDRIDGE.
LAND, Judge.
J.P. Smartt, Jr., appeals from the grant of partial summary judgment to his
sister, Temple Smartt Eldridge, in this property dispute. J.P. argues that the trial court
erred in granting Temple’s motion for partial summary judgment, in not granting his
cross-motion for summary judgment, in not addressing his motion to strike the
contents of two affidavits filed by Temple, and in dismissing his motion to dismiss
as moot. We disagree and affirm.
“Summary judgment is appropriate when no genuine issues of material fact
remain and the moving party is entitled to judgment as a matter of law. On appeal, we
review a trial court’s grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the nonmovant.” (Citations and
punctuation omitted.) Stolte v. Hammack, 311 Ga. App. 710, 710 (716 SE2d 796)
(2011).
So viewed, the record shows that in 1976, J.P. and Temple’s mother acquired
title to a large tract of land in Walker County. In 1982, she divided her property
among her three children, J.P., Temple, and David K. Smartt, by executing three
separate warranty deeds. Temple’s deed contained a grant of a 50-foot perpetual
easement running from a public road to her property. This easement ran across the
south property line of the land conveyed to David in his deed. J.P.’s deed did not
contain any easement or right of way through either of his sibling’s properties
because his property had access at the time from an existing driveway that connected
his property to a public road. Each of the deeds also contained a clause that required
each sibling, in the event of a proposed sale of their property, to extend a right of
purchase to the other two siblings for the same price and terms as any bona fide offer
from a third party.
In 1983, the Georgia Department of Transportation (“GDOT”) filed a
condemnation action against all three siblings and a utility company in order to widen
a state highway. As part of the condemnation action, GDOT created a right-of-way
2 map designating the properties owned by the siblings as Parcel 19A, Parcel, 19B, and
Parcel 19, owned by J.P., David, and Temple, respectively. The condemnation created
a fifty-foot by fifty-foot strip of land jutting out from the standard road right of way
(the “Surplus Property”). It is undisputed that David, the owner of GDOT Parcel 19B,
was the fee simple owner of the Surplus Property at the time of its acquisition by
GDOT. The condemnation action also removed J.P.’s access to the road through his
own property, so GDOT constructed a new driveway that provided him with access
to the relocated state highway. This new driveway crosses through Parcel 19B and the
Surplus Property.
In 2001, David died, and his wife, Martha Smartt, succeeded to his interest in
real property by virtue of a deed of survivorship. In 2006, Temple purchased all of the
property formerly owned by David from Martha, and J.P. waived his right of first
refusal to purchase the property. In 2013, Temple expressed interest in purchasing the
Surplus Property from GDOT, and GDOT executed a quitclaim deed to Temple
“subject to any easement of record.” After the sale, Temple executed an easement to
J.P. and his daughter, granting them a perpetual, non-exclusive easement for ingress
and egress over and across the Surplus Property to State Route 193.
3 In 2017, J.P., through an attorney, wrote a letter to GDOT complaining that
Temple was allowed to purchase the Surplus Property without GDOT having first
given notice to him, stating that J.P. had a “legal interest” in “preserving unfettered
and unobstructed” access to his property through the driveway crossing the Surplus
Property. Shortly thereafter, in October 2017, a GDOT attorney, Mary Jo Volkert,
contacted Temple about J.P.’s letter, alleging that Temple had misrepresented J.P.’s
interest in purchasing the Surplus Property and demanding that Temple either convey
an easement to J.P. or quitclaim her interest in the Suprlus Property back to GDOT.
In May 2020, J.P. filed suit against Temple and GDOT to set aside the
quitclaim deed for the Surplus Property, arguing that GDOT failed to give notice to
J.P. when it sold the Surplus Property to Temple in violation of OCGA § 32-7-4. In
August 2020, Temple filed a motion for partial summary judgment and in September
2020, J.P. filed a cross-motion for summary judgment. In support of his motion for
summary judgment and in opposition to Temple’s motion for summary judgment, J.P.
filed an affidavit from a land surveyor stating that J.P. “owned abutting property” to
the Surplus Property. In January 2021, J.P. voluntarily dismissed GDOT as a party.
In October 2021, while the motions for summary judgment were still pending, Temple
filed a motion to dismiss, arguing that the relief requested by J.P. could not be granted
4 in the absence of GDOT as a party. On March 17, 2022, J.P. filed two motions to
strike the contents of two affidavits filed by Temple, including an affidavit executed
by Volkert stating that at the time she wrote the letter to Temple, she “had not
researched the chain of title to the [Surplus] Propert,” that she later learned that
Temple “had already granted an access easement to [J.P.] across the entire [Surplus]
Property” and that her October 2017 letter to Temple “was in error.”
On March 22, 2022, the trial court held a hearing on the pending motions, and
the parties agreed that Temple’s motion for partial summary judgment and motion to
dismiss would be heard first. After the hearing, the trial court entered an order
granting Temple’s motion for summary judgment and denying as moot her motion to
dismiss. The order did not rule on J.P.’s motions to strike.
1. As a preliminary matter, J.P. has waived his argument that the trial court
erred when it considered portions of the affidavits that were the subject of his motions
to strike. “It is the duty of a litigant to obtain a ruling on his motions or objections.”
(Punctuation and footnote omitted.) Shropshire v. Alostar Bank of Commerce, 314
Ga. App. 310, 313 (2) (a) (724 SE2d 33) (2012). At the May 2022 hearing, the trial
court stated that it had “received a motion to strike” but “[t]here is no indication in
the appellate record that [J.P.] made any effort to elicit a ruling from the trial court
5 with regard to [his] motion [to strike]” prior to filing his appeal. City of Sandy
Springs v. Mills, 331 Ga. App. 709, 714 (2) (771 SE2d 405) (2015).
2. J.P. argues that the trial court erred in granting summary judgment to Temple
because J.P. was an “owner/grantor” of the Surplus Property at the time of
conveyance to GDOT as well as the owner of abutting land to the Surplus Property,
and thus he was entitled to notice of the sale of the Surplus Property to Temple under
OCGA § 32-7-4 (a) (1).
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FIRST DIVISION BARNES, P. J., PIPKIN and LAND, JJ.
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
June 20, 2023
In the Court of Appeals of Georgia A23A0628. SMARTT v. ELDRIDGE.
LAND, Judge.
J.P. Smartt, Jr., appeals from the grant of partial summary judgment to his
sister, Temple Smartt Eldridge, in this property dispute. J.P. argues that the trial court
erred in granting Temple’s motion for partial summary judgment, in not granting his
cross-motion for summary judgment, in not addressing his motion to strike the
contents of two affidavits filed by Temple, and in dismissing his motion to dismiss
as moot. We disagree and affirm.
“Summary judgment is appropriate when no genuine issues of material fact
remain and the moving party is entitled to judgment as a matter of law. On appeal, we
review a trial court’s grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the nonmovant.” (Citations and
punctuation omitted.) Stolte v. Hammack, 311 Ga. App. 710, 710 (716 SE2d 796)
(2011).
So viewed, the record shows that in 1976, J.P. and Temple’s mother acquired
title to a large tract of land in Walker County. In 1982, she divided her property
among her three children, J.P., Temple, and David K. Smartt, by executing three
separate warranty deeds. Temple’s deed contained a grant of a 50-foot perpetual
easement running from a public road to her property. This easement ran across the
south property line of the land conveyed to David in his deed. J.P.’s deed did not
contain any easement or right of way through either of his sibling’s properties
because his property had access at the time from an existing driveway that connected
his property to a public road. Each of the deeds also contained a clause that required
each sibling, in the event of a proposed sale of their property, to extend a right of
purchase to the other two siblings for the same price and terms as any bona fide offer
from a third party.
In 1983, the Georgia Department of Transportation (“GDOT”) filed a
condemnation action against all three siblings and a utility company in order to widen
a state highway. As part of the condemnation action, GDOT created a right-of-way
2 map designating the properties owned by the siblings as Parcel 19A, Parcel, 19B, and
Parcel 19, owned by J.P., David, and Temple, respectively. The condemnation created
a fifty-foot by fifty-foot strip of land jutting out from the standard road right of way
(the “Surplus Property”). It is undisputed that David, the owner of GDOT Parcel 19B,
was the fee simple owner of the Surplus Property at the time of its acquisition by
GDOT. The condemnation action also removed J.P.’s access to the road through his
own property, so GDOT constructed a new driveway that provided him with access
to the relocated state highway. This new driveway crosses through Parcel 19B and the
Surplus Property.
In 2001, David died, and his wife, Martha Smartt, succeeded to his interest in
real property by virtue of a deed of survivorship. In 2006, Temple purchased all of the
property formerly owned by David from Martha, and J.P. waived his right of first
refusal to purchase the property. In 2013, Temple expressed interest in purchasing the
Surplus Property from GDOT, and GDOT executed a quitclaim deed to Temple
“subject to any easement of record.” After the sale, Temple executed an easement to
J.P. and his daughter, granting them a perpetual, non-exclusive easement for ingress
and egress over and across the Surplus Property to State Route 193.
3 In 2017, J.P., through an attorney, wrote a letter to GDOT complaining that
Temple was allowed to purchase the Surplus Property without GDOT having first
given notice to him, stating that J.P. had a “legal interest” in “preserving unfettered
and unobstructed” access to his property through the driveway crossing the Surplus
Property. Shortly thereafter, in October 2017, a GDOT attorney, Mary Jo Volkert,
contacted Temple about J.P.’s letter, alleging that Temple had misrepresented J.P.’s
interest in purchasing the Surplus Property and demanding that Temple either convey
an easement to J.P. or quitclaim her interest in the Suprlus Property back to GDOT.
In May 2020, J.P. filed suit against Temple and GDOT to set aside the
quitclaim deed for the Surplus Property, arguing that GDOT failed to give notice to
J.P. when it sold the Surplus Property to Temple in violation of OCGA § 32-7-4. In
August 2020, Temple filed a motion for partial summary judgment and in September
2020, J.P. filed a cross-motion for summary judgment. In support of his motion for
summary judgment and in opposition to Temple’s motion for summary judgment, J.P.
filed an affidavit from a land surveyor stating that J.P. “owned abutting property” to
the Surplus Property. In January 2021, J.P. voluntarily dismissed GDOT as a party.
In October 2021, while the motions for summary judgment were still pending, Temple
filed a motion to dismiss, arguing that the relief requested by J.P. could not be granted
4 in the absence of GDOT as a party. On March 17, 2022, J.P. filed two motions to
strike the contents of two affidavits filed by Temple, including an affidavit executed
by Volkert stating that at the time she wrote the letter to Temple, she “had not
researched the chain of title to the [Surplus] Propert,” that she later learned that
Temple “had already granted an access easement to [J.P.] across the entire [Surplus]
Property” and that her October 2017 letter to Temple “was in error.”
On March 22, 2022, the trial court held a hearing on the pending motions, and
the parties agreed that Temple’s motion for partial summary judgment and motion to
dismiss would be heard first. After the hearing, the trial court entered an order
granting Temple’s motion for summary judgment and denying as moot her motion to
dismiss. The order did not rule on J.P.’s motions to strike.
1. As a preliminary matter, J.P. has waived his argument that the trial court
erred when it considered portions of the affidavits that were the subject of his motions
to strike. “It is the duty of a litigant to obtain a ruling on his motions or objections.”
(Punctuation and footnote omitted.) Shropshire v. Alostar Bank of Commerce, 314
Ga. App. 310, 313 (2) (a) (724 SE2d 33) (2012). At the May 2022 hearing, the trial
court stated that it had “received a motion to strike” but “[t]here is no indication in
the appellate record that [J.P.] made any effort to elicit a ruling from the trial court
5 with regard to [his] motion [to strike]” prior to filing his appeal. City of Sandy
Springs v. Mills, 331 Ga. App. 709, 714 (2) (771 SE2d 405) (2015).
2. J.P. argues that the trial court erred in granting summary judgment to Temple
because J.P. was an “owner/grantor” of the Surplus Property at the time of
conveyance to GDOT as well as the owner of abutting land to the Surplus Property,
and thus he was entitled to notice of the sale of the Surplus Property to Temple under
OCGA § 32-7-4 (a) (1). We are unpersuaded.
When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.
(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a)
(751 SE2d 337) (2013). Additionally, we are required “to avoid a construction that
makes some language mere surplusage.” Slakman v. Continental Cas. Co., 277 Ga.
189, 190 (587 SE2d 24) (2003).
6 In relevant part, OCGA § 32-7-4 (a) (1) provides that where a department,
county, or municipality (here, GDOT) has held title to a property for less than 30
years and seeks to sell that property, the department
shall notify the owner of such property at the time of its acquisition or, if the tract from which the department . . . acquired its property has been subsequently sold, shall notify the owner of abutting land holding title through the owner from whom the department . . . acquired its property . . . . The notice shall be in writing delivered to the appropriate owner, or association or by publication if the owner’s or association’s address is unknown; and the owner or the association, as applicable, shall have the right to acquire, as provided in this subsection, the property with respect to which the notice is given.
(Emphasis supplied.) Thus, the plain language of OCGA § 32-7-4 (a) (1), requires
notice of the sale only to the party who owned of the Surplus Property at the time of
its acquisition by GDOT. If the tract from which GDOT acquired the Surplus
Property has subsequently been sold, however, the statute requires notice to the owner
of abutting land where the owner holds title to that land through the owner from
whom GDOT acquired the Surplus Property. To conclude that notice must be given
to all owners of abutting land regardless of how they acquired title would render the
rest of this sentence mere surplusage.
7 The record is clear that the Surplus Property was a part of Parcel 19B at the
time of its conveyance to GDOT, that Parcel 19B was owned by David at the time the
Surplus Property was conveyed to GDOT, and that Parcel 19B was subsequently sold
to Temple after the Surplus Property was conveyed to GDOT. J.P.’s own complaint
states that David was the fee simple owner of the Surplus Property. Thus, J.P. was not
the owner of the Surplus Property at the time it was acquired by GDOT and did not
require notice under the first prong of OCGA § 32-7-4 (a) (1). In any event, because
Parcel 19B was sold subsequent to GDOT’s acquisition of the Surplus Property, the
second prong of OCGA § 32-7-4 (a) (1) applies, which only requires notice of the
sale to be made to owners of abutting land who obtained title to the land abutting the
Surplus Property through the owner from whom GDOT acquired the Surplus
Property. Because J.P. acquired title to his property, Parcel 19A, from his mother,
GDOT did not violate OCGA § 32-7-4 (a) (1) when it sold the Surplus Property to
Temple without providing notice to J.P. Therefore the trial court did not err in
granting partial summary judgment to Temple.
3. J.P. argues that the trial court erred in dismissing Temple’s motion to dismiss
for failure to join GDOT as an indispensable party as moot. Because the trial court
did not err in granting summary judgment to Temple, this enumeration of error is
8 moot. See Brazeal v. Newpoint Media Grp., LLC, 331 Ga. App. 49, 49 n.1 (769 SE2d
763) (2015) (appellant’s enumeration of error regarding trial court’s ruling on motion
to dismiss was moot “because the trial court granted [appellee’s] cross-motion for
summary judgment on the same claims at issue in the motion to dismiss”).
Judgment affirmed. Barnes, P. J., and Pipkin, J., concur.