trespass claim in Georgia

2017See Rabun County v. Mountain Creek Estates, 280 Ga. 855, 857 (1) ( 632 SE2d 140 ) (2006).

2017See Rabun County v. Mountain Creek Estates, 280 Ga. 855, 857 (1) ( 632 SE2d 140 ) (2006).

2023“A person commits trespass when he knowingly and without authority enters upon the land of another after having received prior notice that such entry is 24 forbidden.” Pope v. Pulte Home Corp., 246 Ga. App. 120 (1) ( 539 SE2d 842 ) (2000); see also TMX Finance Holdings v. Drummond Financial Svcs., 300 Ga. 835, 837-838 (1) ( 797 SE2d 842 ) (2017) (holding in a case involving an injunction that the plaintiff was unlikely to succeed on the merits of a trespass claim because the record showed that the plaintiff did not have a right to exclude a defendant from parking lots that it shared with other

2023“A person commits trespass when he knowingly and without authority enters upon the land of another after having received prior notice that such entry is 24 forbidden.” Pope v. Pulte Home Corp., 246 Ga. App. 120 (1) ( 539 SE2d 842 ) (2000); see also TMX Finance Holdings v. Drummond Financial Svcs., 300 Ga. 835, 837-838 (1) ( 797 SE2d 842 ) (2017) (holding in a case involving an injunction that the plaintiff was unlikely to succeed on the merits of a trespass claim because the record showed that the plaintiff did not have a right to exclude a defendant from parking lots that it shared with other

2023“A person commits trespass when he knowingly and without authority enters upon the land of another after having received prior notice that such entry is 24 forbidden.” Pope v. Pulte Home Corp., 246 Ga. App. 120 (1) ( 539 SE2d 842 ) (2000); see also TMX Finance Holdings v. Drummond Financial Svcs., 300 Ga. 835, 837-838 (1) ( 797 SE2d 842 ) (2017) (holding in a case involving an injunction that the plaintiff was unlikely to succeed on the merits of a trespass claim because the record showed that the plaintiff did not have a right to exclude a defendant from parking lots that it shared with other

2023“A person commits trespass when he knowingly and without authority enters upon the land of another after having received prior notice that such entry is 24 forbidden.” Pope v. Pulte Home Corp., 246 Ga. App. 120 (1) ( 539 SE2d 842 ) (2000); see also TMX Finance Holdings v. Drummond Financial Svcs., 300 Ga. 835, 837-838 (1) ( 797 SE2d 842 ) (2017) (holding in a case involving an injunction that the plaintiff was unlikely to succeed on the merits of a trespass claim because the record showed that the plaintiff did not have a right to exclude a defendant from parking lots that it shared with other

2021Id. at 120-121 . 9 See Holman v. Burgess, 199 Ga. App. 61, 64 ( 404 SE2d 144 ) (1991) (a party is “not entitled to discover information concerning [another party’s] personal financial resources absent an evidentiary showing (by affidavit, discovery responses, or otherwise) that a factual basis existed for [the] punitive damage claim”). 18 It is true that based on the evidence in the record a jury would be authorized to find that Southern Fiber and Turton were innocent trespassers, in which case punitive damages would not be warranted.

2021Id. at 120-121 . 9 See Holman v. Burgess, 199 Ga. App. 61, 64 ( 404 SE2d 144 ) (1991) (a party is “not entitled to discover information concerning [another party’s] personal financial resources absent an evidentiary showing (by affidavit, discovery responses, or otherwise) that a factual basis existed for [the] punitive damage claim”). 18 It is true that based on the evidence in the record a jury would be authorized to find that Southern Fiber and Turton were innocent trespassers, in which case punitive damages would not be warranted.

2021See Dockens, 285 Ga. App. at 901 (2) (b); see also Griffin v. State Bank, 312 Ga. App. 87, 91 (1) (a) ( 718 SE2d 35 ) (2011) (“Misrepresentations are not actionable unless the complaining party was justified in relying thereon in the exercise of common prudence and diligence.”) (citation and punctuation omitted). (b) Representation that “Plaintiff wanted Defendant to leave the conduit and hand holes in place on Plaintiff’s property[.]” Southern Fiber and Turton also claim fraud based on Crenshaw’s statement that he wanted Southern Fiber to leave the conduit and hand holes in place on Woodstone

2021Foster v. Morrison, 177 Ga. App. 250, 250 (1) ( 339 SE2d 307 ) (1985). 11 “An owner of real property has the right to possess, use, enjoy, and dispose of it, and the corresponding right to exclude others from its use.” LN West Paces Ferry Assoc., LLC. v. McDonald, 306 Ga. App. 641, 643 (1) (a) ( 703 SE2d 85 ) (2010) (citation and punctuation omitted).

2021Foster v. Morrison, 177 Ga. App. 250, 250 (1) ( 339 SE2d 307 ) (1985). 11 “An owner of real property has the right to possess, use, enjoy, and dispose of it, and the corresponding right to exclude others from its use.” LN West Paces Ferry Assoc., LLC. v. McDonald, 306 Ga. App. 641, 643 (1) (a) ( 703 SE2d 85 ) (2010) (citation and punctuation omitted).

2021Foster v. Morrison, 177 Ga. App. 250, 250 (1) ( 339 SE2d 307 ) (1985). 11 “An owner of real property has the right to possess, use, enjoy, and dispose of it, and the corresponding right to exclude others from its use.” LN West Paces Ferry Assoc., LLC. v. McDonald, 306 Ga. App. 641, 643 (1) (a) ( 703 SE2d 85 ) (2010) (citation and punctuation omitted).

2021Foster v. Morrison, 177 Ga. App. 250, 250 (1) ( 339 SE2d 307 ) (1985). 11 “An owner of real property has the right to possess, use, enjoy, and dispose of it, and the corresponding right to exclude others from its use.” LN West Paces Ferry Assoc., LLC. v. McDonald, 306 Ga. App. 641, 643 (1) (a) ( 703 SE2d 85 ) (2010) (citation and punctuation omitted).

2021In addition, although Woodstone correctly notes that a claim for OCGA § 9-15-14 attorney fees must be sought via a motion and not by answer or counterclaim, Glass v. Glover, 241 Ga. App. 838, 839 ( 528 SE2d 262 ) (2000), this fact does not demand that Woodstone receive summary judgment because “a counterclaim [can] be converted into a motion based upon the oral request of counsel at a hearing or at trial[.]” Nesbit v. Nesbit, 295 Ga. App. 763, 765 ( 673 SE2d 272 ) (2009).

2021In addition, although Woodstone correctly notes that a claim for OCGA § 9-15-14 attorney fees must be sought via a motion and not by answer or counterclaim, Glass v. Glover, 241 Ga. App. 838, 839 ( 528 SE2d 262 ) (2000), this fact does not demand that Woodstone receive summary judgment because “a counterclaim [can] be converted into a motion based upon the oral request of counsel at a hearing or at trial[.]” Nesbit v. Nesbit, 295 Ga. App. 763, 765 ( 673 SE2d 272 ) (2009).

2021In addition, although Woodstone correctly notes that a claim for OCGA § 9-15-14 attorney fees must be sought via a motion and not by answer or counterclaim, Glass v. Glover, 241 Ga. App. 838, 839 ( 528 SE2d 262 ) (2000), this fact does not demand that Woodstone receive summary judgment because “a counterclaim [can] be converted into a motion based upon the oral request of counsel at a hearing or at trial[.]” Nesbit v. Nesbit, 295 Ga. App. 763, 765 ( 673 SE2d 272 ) (2009).

2021In addition, although Woodstone correctly notes that a claim for OCGA § 9-15-14 attorney fees must be sought via a motion and not by answer or counterclaim, Glass v. Glover, 241 Ga. App. 838, 839 ( 528 SE2d 262 ) (2000), this fact does not demand that Woodstone receive summary judgment because “a counterclaim [can] be converted into a motion based upon the oral request of counsel at a hearing or at trial[.]” Nesbit v. Nesbit, 295 Ga. App. 763, 765 ( 673 SE2d 272 ) (2009).

2021See Dockens, 285 Ga. App. at 901 (2) (b); see also Griffin v. State Bank, 312 Ga. App. 87, 91 (1) (a) ( 718 SE2d 35 ) (2011) (“Misrepresentations are not actionable unless the complaining party was justified in relying thereon in the exercise of common prudence and diligence.”) (citation and punctuation omitted). (b) Representation that “Plaintiff wanted Defendant to leave the conduit and hand holes in place on Plaintiff’s property[.]” Southern Fiber and Turton also claim fraud based on Crenshaw’s statement that he wanted Southern Fiber to leave the conduit and hand holes in place on Woodstone

2021See Dockens, 285 Ga. App. at 901 (2) (b); see also Griffin v. State Bank, 312 Ga. App. 87, 91 (1) (a) ( 718 SE2d 35 ) (2011) (“Misrepresentations are not actionable unless the complaining party was justified in relying thereon in the exercise of common prudence and diligence.”) (citation and punctuation omitted). (b) Representation that “Plaintiff wanted Defendant to leave the conduit and hand holes in place on Plaintiff’s property[.]” Southern Fiber and Turton also claim fraud based on Crenshaw’s statement that he wanted Southern Fiber to leave the conduit and hand holes in place on Woodstone

2021“Consent to travel on the property cannot be implied even if the landowner has knowledge that others, on occasion, trespass on it.” Trammell v. Baird, 262 Ga. 124, 125 ( 413 SE2d 445 ) (1992). 55 The trial court did not err in denying summary judgment to Southern Fiber and Turton based on these arguments. (d) Compliance with industry standards.

2021“Consent to travel on the property cannot be implied even if the landowner has knowledge that others, on occasion, trespass on it.” Trammell v. Baird, 262 Ga. 124, 125 ( 413 SE2d 445 ) (1992). 55 The trial court did not err in denying summary judgment to Southern Fiber and Turton based on these arguments. (d) Compliance with industry standards.

2018See Tookes v. Murray , 297 Ga. App. 765 , 768 (2), 678 S.E.2d 209 (2009) (the determination of whether a tort was sufficiently aggravating to authorize punitive damages is generally a jury question); Tyler v. Lincoln , 272 Ga. 118 , 121 (2), 527 S.E.2d 180 (2000) (recognizing that the failure to ameliorate a continuing trespass authorizes the jury to consider the facts and circumstances of the case and award attorney fees pursuant to OCGA § 13-6-11 when appropriate). 1 This is the second appearance of this case before this Court.

2018See Tookes v. Murray , 297 Ga. App. 765 , 768 (2), 678 S.E.2d 209 (2009) (the determination of whether a tort was sufficiently aggravating to authorize punitive damages is generally a jury question); Tyler v. Lincoln , 272 Ga. 118 , 121 (2), 527 S.E.2d 180 (2000) (recognizing that the failure to ameliorate a continuing trespass authorizes the jury to consider the facts and circumstances of the case and award attorney fees pursuant to OCGA § 13-6-11 when appropriate). 1 This is the second appearance of this case before this Court.

2018See OCGA § 51-9-1 ; Tacon , supra, 280 Ga. App. at 188 (2), 633 S.E.2d 599 .

2018See OCGA § 51-9-1 ; Tacon , supra, 280 Ga. App. at 188 (2), 633 S.E.2d 599 .

2018Jewell, Inc. v. Hancock , 226 Ga. 480 , 483 (2), 175 S.E.2d 847 (1970), Rinzler v. Folsom , 209 Ga. 549 , 552 (2), 74 S.E.2d 661 (1953), Bishop Eddie Long Ministries v. Dillard , 272 Ga. App. 894 , 901 (3), 613 S.E.2d 673 (2005). 29 (Emphasis supplied.) Rinzler , 209 Ga. at 552 (2), 74 S.E.2d 661 . 30 The dissent relies on Merlino v. City of Atlanta , 283 Ga. 186 , 189, 657 S.E.2d 859 (2008) to support its finding that a question of fact exists on the trespass claim and that an act of trespass can originate solely within the boundaries of one property if it affects another property.

2018Jewell, Inc. v. Hancock , 226 Ga. 480 , 483 (2), 175 S.E.2d 847 (1970), Rinzler v. Folsom , 209 Ga. 549 , 552 (2), 74 S.E.2d 661 (1953), Bishop Eddie Long Ministries v. Dillard , 272 Ga. App. 894 , 901 (3), 613 S.E.2d 673 (2005). 29 (Emphasis supplied.) Rinzler , 209 Ga. at 552 (2), 74 S.E.2d 661 . 30 The dissent relies on Merlino v. City of Atlanta , 283 Ga. 186 , 189, 657 S.E.2d 859 (2008) to support its finding that a question of fact exists on the trespass claim and that an act of trespass can originate solely within the boundaries of one property if it affects another property.

2015The trial court further determined that Land USA’s claims for ejectment and trespass failed as a matter of law because the electric line was within the public GDOT right-of-way and did not materially encumber the Property,3 the electric line was a necessary and constituent part of 3 See Faulkner v. Georgia Power Co., 243 Ga. 649 ( 256 SE2d 339 ) (1979). 3 Georgia Power’s service to the public4 and, as Land USA was neither the true owner of the Property nor in possession at the time the line was re-energized, it lacked standing to assert a trespass claim against Georgia Power.5 1.

2015The trial court further determined that Land USA’s claims for ejectment and trespass failed as a matter of law because the electric line was within the public GDOT right-of-way and did not materially encumber the Property,3 the electric line was a necessary and constituent part of 3 See Faulkner v. Georgia Power Co., 243 Ga. 649 ( 256 SE2d 339 ) (1979). 3 Georgia Power’s service to the public4 and, as Land USA was neither the true owner of the Property nor in possession at the time the line was re-energized, it lacked standing to assert a trespass claim against Georgia Power.5 1.

2014Accordingly, the trial court correctly found there was no claim for trespass under OCGA § 51-9-1.” Udoinyion v. Re/Max of Atlanta, 289 Ga. App. 580, 583 ( 657 SE2d 644 ) (2008) (citations omitted).

2014Accordingly, the trial court correctly found there was no claim for trespass under OCGA § 51-9-1.” Udoinyion v. Re/Max of Atlanta, 289 Ga. App. 580, 583 ( 657 SE2d 644 ) (2008) (citations omitted).

2008Auth., 193 Ga. App. 473 ( 388 SE2d 69 ) (1989) (“Where records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record and clearly identified in the affidavit, the affidavit is insufficient.”). 19 TSQ contends that McGuire waived its right to rely on Nemchik’s deposition by “failing] to cite to [such] testimony anywhere in the proceedings below” and asserts that McGuire “never argued that this evidence created a material issue of fact.” In fact, McGuire specifically stated in its second motion for summary judgment that it was relying upon Ne

2008Auth., 193 Ga. App. 473 ( 388 SE2d 69 ) (1989) (“Where records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record and clearly identified in the affidavit, the affidavit is insufficient.”). 19 TSQ contends that McGuire waived its right to rely on Nemchik’s deposition by “failing] to cite to [such] testimony anywhere in the proceedings below” and asserts that McGuire “never argued that this evidence created a material issue of fact.” In fact, McGuire specifically stated in its second motion for summary judgment that it was relying upon Ne

2008McGuire amended its complaint to seek attorney fees under this provision as well. 6 TSQ sought summary judgment as to liability for the trespass claim, leaving the amount of damages and attorney fees for trial. 7 See Carlisle v. Abend, 288 Ga. App. 150, 151 (1) ( 653 SE2d 388 ) (2007) (the appellant bears the burden of establishing error affirmatively in the record); Schmitt v. Jackson County, 267 Ga. App. 764, 766 (2) ( 601 SE2d 169 ) (2004). 8 The trial court’s order appears to address only Lee’s second affidavit. 9 Although the order did not indicate the date of the affidavit that the trial

2008McGuire amended its complaint to seek attorney fees under this provision as well. 6 TSQ sought summary judgment as to liability for the trespass claim, leaving the amount of damages and attorney fees for trial. 7 See Carlisle v. Abend, 288 Ga. App. 150, 151 (1) ( 653 SE2d 388 ) (2007) (the appellant bears the burden of establishing error affirmatively in the record); Schmitt v. Jackson County, 267 Ga. App. 764, 766 (2) ( 601 SE2d 169 ) (2004). 8 The trial court’s order appears to address only Lee’s second affidavit. 9 Although the order did not indicate the date of the affidavit that the trial

2008McGuire amended its complaint to seek attorney fees under this provision as well. 6 TSQ sought summary judgment as to liability for the trespass claim, leaving the amount of damages and attorney fees for trial. 7 See Carlisle v. Abend, 288 Ga. App. 150, 151 (1) ( 653 SE2d 388 ) (2007) (the appellant bears the burden of establishing error affirmatively in the record); Schmitt v. Jackson County, 267 Ga. App. 764, 766 (2) ( 601 SE2d 169 ) (2004). 8 The trial court’s order appears to address only Lee’s second affidavit. 9 Although the order did not indicate the date of the affidavit that the trial

2008McGuire amended its complaint to seek attorney fees under this provision as well. 6 TSQ sought summary judgment as to liability for the trespass claim, leaving the amount of damages and attorney fees for trial. 7 See Carlisle v. Abend, 288 Ga. App. 150, 151 (1) ( 653 SE2d 388 ) (2007) (the appellant bears the burden of establishing error affirmatively in the record); Schmitt v. Jackson County, 267 Ga. App. 764, 766 (2) ( 601 SE2d 169 ) (2004). 8 The trial court’s order appears to address only Lee’s second affidavit. 9 Although the order did not indicate the date of the affidavit that the trial

2008McGuire amended its complaint to seek attorney fees under this provision as well. 6 TSQ sought summary judgment as to liability for the trespass claim, leaving the amount of damages and attorney fees for trial. 7 See Carlisle v. Abend, 288 Ga. App. 150, 151 (1) ( 653 SE2d 388 ) (2007) (the appellant bears the burden of establishing error affirmatively in the record); Schmitt v. Jackson County, 267 Ga. App. 764, 766 (2) ( 601 SE2d 169 ) (2004). 8 The trial court’s order appears to address only Lee’s second affidavit. 9 Although the order did not indicate the date of the affidavit that the trial

2008McGuire amended its complaint to seek attorney fees under this provision as well. 6 TSQ sought summary judgment as to liability for the trespass claim, leaving the amount of damages and attorney fees for trial. 7 See Carlisle v. Abend, 288 Ga. App. 150, 151 (1) ( 653 SE2d 388 ) (2007) (the appellant bears the burden of establishing error affirmatively in the record); Schmitt v. Jackson County, 267 Ga. App. 764, 766 (2) ( 601 SE2d 169 ) (2004). 8 The trial court’s order appears to address only Lee’s second affidavit. 9 Although the order did not indicate the date of the affidavit that the trial

2008McGuire amended its complaint to seek attorney fees under this provision as well. 6 TSQ sought summary judgment as to liability for the trespass claim, leaving the amount of damages and attorney fees for trial. 7 See Carlisle v. Abend, 288 Ga. App. 150, 151 (1) ( 653 SE2d 388 ) (2007) (the appellant bears the burden of establishing error affirmatively in the record); Schmitt v. Jackson County, 267 Ga. App. 764, 766 (2) ( 601 SE2d 169 ) (2004). 8 The trial court’s order appears to address only Lee’s second affidavit. 9 Although the order did not indicate the date of the affidavit that the trial

2008McGuire amended its complaint to seek attorney fees under this provision as well. 6 TSQ sought summary judgment as to liability for the trespass claim, leaving the amount of damages and attorney fees for trial. 7 See Carlisle v. Abend, 288 Ga. App. 150, 151 (1) ( 653 SE2d 388 ) (2007) (the appellant bears the burden of establishing error affirmatively in the record); Schmitt v. Jackson County, 267 Ga. App. 764, 766 (2) ( 601 SE2d 169 ) (2004). 8 The trial court’s order appears to address only Lee’s second affidavit. 9 Although the order did not indicate the date of the affidavit that the trial

2008McGuire amended its complaint to seek attorney fees under this provision as well. 6 TSQ sought summary judgment as to liability for the trespass claim, leaving the amount of damages and attorney fees for trial. 7 See Carlisle v. Abend, 288 Ga. App. 150, 151 (1) ( 653 SE2d 388 ) (2007) (the appellant bears the burden of establishing error affirmatively in the record); Schmitt v. Jackson County, 267 Ga. App. 764, 766 (2) ( 601 SE2d 169 ) (2004). 8 The trial court’s order appears to address only Lee’s second affidavit. 9 Although the order did not indicate the date of the affidavit that the trial

2008McGuire amended its complaint to seek attorney fees under this provision as well. 6 TSQ sought summary judgment as to liability for the trespass claim, leaving the amount of damages and attorney fees for trial. 7 See Carlisle v. Abend, 288 Ga. App. 150, 151 (1) ( 653 SE2d 388 ) (2007) (the appellant bears the burden of establishing error affirmatively in the record); Schmitt v. Jackson County, 267 Ga. App. 764, 766 (2) ( 601 SE2d 169 ) (2004). 8 The trial court’s order appears to address only Lee’s second affidavit. 9 Although the order did not indicate the date of the affidavit that the trial

2007See Brand v. Montega Corp., 233 Ga. 32, 33 (1) ( 209 SE2d 581 ) (1974) (when facts giving rise to trespass and nuisance claims were “one and the same,” and where jury was properly charged on deprivation of use and enjoyment, trial court’s grant of directed verdict and refusal to charge on nuisance claim did not harm plaintiff). 2.

2007See Brand v. Montega Corp., 233 Ga. 32, 33 (1) ( 209 SE2d 581 ) (1974) (when facts giving rise to trespass and nuisance claims were “one and the same,” and where jury was properly charged on deprivation of use and enjoyment, trial court’s grant of directed verdict and refusal to charge on nuisance claim did not harm plaintiff). 2.