Mitchell v. Mitchell

555 S.E.2d 436, 274 Ga. 633, 2001 Fulton County D. Rep. 3484, 2001 Ga. LEXIS 904

• Court: Supreme Court of Georgia
• Decided: November 19, 2001
• Docket: S01A1177
• Status: Published

Opinions

Thompson, Justice.

Gene Mitchell owned land in Lamar County. He died in 1991. Seven years before his death, Gene drew a diagram of the property showing how he intended to divide it equally among his children. Pursuant to that diagram, Gene deeded five acre parcels of land to each one of his five children. Thereafter, Gene showed Richard the land upon which he wanted Richard to build a house. Richard built a house on the parcel of land which his father showed him. Gene and some or all of Richard’s siblings helped Richard build the house; no one ever told Richard to stop building the house.

A few months after Gene died, Richard’s siblings claimed that Richard built his house on the wrong lot. They filed suit in 1997 against Richard and his wife for declaratory and equitable relief. Defendants counterclaimed for damages to be awarded in the “enlightened conscience” of the jury.

At trial, plaintiffs established that the house was not built on the land which was deeded to Richard. Nevertheless, the jury rendered a verdict giving defendants (1) the property upon which Richard built the house and (2) the sum of $1,000, or the amount of taxes which Richard paid on the parcel of land he was deeded,¹ whichever is greater. The verdict was made the judgment of the court. Following the denial of their motion for a new trial, plaintiffs appeal.

1. Under the peculiar circumstances of this case, it cannot be said the court erred in awarding defendants the property upon which the house was built and now stands. See generally OCGA § 23-1-3. After all, this is not a case in which both parties are equally blameless. Cf. Miceli v. Riley, 436 NYS2d 72 (1981). Although plaintiffs did not know that Richard built his house on the wrong lot, they were not prevented from ascertaining that fact; they participated in the construction of the house and made no complaint about its location until Gene, their father, died; then they waited nearly six years to file suit for declaratory and equitable relief. Given plaintiffs’ failure to act in an appropriate and timely manner when they knew, or should have known, that Richard’s house was built on the wrong lot, we believe that the trial court, in the exercise of its inherent equity power, see generally Hague v. Pitts, 262 Ga. 777 (425 SE2d 636) (1993), chose the most equitable solution to this conflict.

The trial court’s solution is not antagonistic to the law. Compare Dolinger v. Driver, 269 Ga. 141 (4) (498 SE2d 252) (1998). It simply provides a just solution to a case in which the legal remedy, if one exists,² is not “ ‘as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity.’ ” Sherrer v. Hale, 248 Ga. 793, 797 (2) (285 SE2d 714) (1982).

2. An award of damages cannot be based on speculation, conjecture, or guesswork. Turner v. Connor, 192 Ga. App. 348 (385 SE2d 19) (1989). The award of damages in this case is not supported by the evidence and must be reversed.

Judgment affirmed in part and reversed in part.

All the Justices concur, except Sears, P. J., Hunstein and Carley, JJ, who dissent.

1 Richard testified that he paid property taxes on the parcel of land he was deeded, as well as the parcel of land upon which he built his house, but he did not give specifics as to the amounts he paid on either parcel.

2 Inasmuch as OCGA § 44-11-9 does not expressly apply to this case, its application in this case would necessitate the use of equitable principles. See Beavers v. Weatherly, 250 Ga. 546, 548 (299 SE2d 730) (1983).