R. C. Acres, Inc. v. Cambridge Faire Properties, LLC

THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, 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.
http://www.gaappeals.us/rules/

March 30, 2015

In the Court of Appeals of Georgia
A14A1688. R. C. ACRES, INC. v. CAMBRIDGE FAIRE
PROPERTIES, LLC et al.
A14A1689. MOMMIES PROPERTIES, LLC v. R. C. ACRES, INC.
A14A2102. BOSE v. R. C. ACRES, INC.

BOGGS, Judge.

These appeals arise from litigation involving the location and extent of an

easement of access to real property, and alleged damages as a result of interference

with the easement. In 2009, R. C. Acres, Inc. (“R. C.”) filed a complaint seeking to

quiet title to an alleged easement of access to its land and for damages against

Cambridge Faire Properties, LLC and Mommies Properties, LLC as owners of

adjoining parcels. After numerous amendments and motions to join parties and to

intervene, the case proceeded to trial in 2013 as to appellees Mommies Properties,

LLC, Vinay Bose, and Patricia Whitney d/b/a Flowered Rock Farm (“the M. P.
defendants”) and Cambridge Faire LLC, Dewey White, and White Repair &

Contracting Co. (“the Cambridge defendants”), as well as other entities not parties to

this appeal.1

In a bifurcated trial, the jury returned two detailed special verdicts. The first

verdict marked the easement’s original and ultimate locations, and the second

awarded damages to R. C. against the Cambridge defendants for interference with its

easement, but found in favor of the M. P. defendants.2 Judgment was entered on the

jury’s verdicts, and the parties filed various post-trial motions. But before any rulings

were made by the trial court, R. C. filed its notice of appeal. Mommies Properties and

Bose also filed conditional cross-appeals of the trial court’s order denying their

motions for sanctions for the alleged spoliation of evidence.3

1
The trial court entered default judgment against two defendants, 20 West Land
Co. LLC and Silver Creek Development, and they are not parties to this appeal. It also
directed a verdict against the Cambridge defendants as to liability for interference
with the easement. R. C. reached a post-trial settlement with the Cambridge
defendants, and they likewise are not parties to this appeal.
2
The jury also declined to award punitive damages against any defendant, and
found in favor of the M. P. defendants on the issue of trespass to realty, and in favor
of R. C. on the defendants’ counterclaims, as well as in favor of a third-party
defendant who is not a party to this appeal.
3
Appellees Bose and Whitney, appearing pro se, filed briefs incorporating the
brief of Mommies Properties in Case No. A14A1688.

2
 Because the trial court abused its discretion in limiting the jury’s consideration

of evidence showing earlier locations of the easement at issue, and further erred in

ruling that the new Georgia Evidence Code limited cross-examination to the scope

of direct, we reverse in part in Case No. A14A1688. We also vacate the judgment in

part and remand for the trial court to conform that part of the judgment to the jury’s

verdict. But because the trial court did not abuse its discretion in denying the motions

for sanctions, we affirm in Case Nos. A14A1689 and A14A2102.

Case No. A14A1688

1. R. C. contends that in preparing the special verdict form for submission to

the jury, the trial court improperly limited the jury’s consideration of the easement to

its original and its ultimate locations only. As a result, R. C. contends that the jury

was unable to consider the award of damages with respect to intermediate locations

of the easement with which it alleged that the defendants interfered.

“The form of a verdict and the submission of a special verdict are within the

discretion of the trial court, and, absent an abuse of that discretion, the court’s choice

will not be overturned.” (Citations, punctuation, and footnote omitted.) Certain

Underwriters at Lloyd’s of London v. Rucker Constr., Inc., 285 Ga. App. 844, 851-

852 (4) (648 SE2d 170) (2007); see also OCGA § 9-11-49. But the special verdict

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form must be “adequately crafted to elicit a decision on the issues before the court.

[Cit.]” Glisson v. Glisson, 265 Ga. 239, 240 (4) (454 SE2d 508) (1995). Because

some evidence was presented at trial that the easement was relocated by agreement

of the parties to several different routes during the period in question, the trial court

abused its discretion in refusing to submit this disputed question of fact to the jury,

and we therefore must reverse.

A brief summary of the relevant evidence is necessary for consideration of this

issue. At trial, R. C. presented testimony that it owns a parcel of property on the

Chattahoochee River in Forsyth County. The parcel is landlocked, and was originally

part of a larger tract of land with access to a nearby highway, owned by the Rives

Corporation (“Rives”) at the time R. C. acquired its parcel from Rives, but later

divided into two tracts and conveyed to others. One tract was transferred to the White

defendants; the other was developed as an equestrian property by an intermediate

owner, Silver Creek Development, and eventually transferred to M. P. defendants

Mommies Properties and Bose.4

4
Mommies Properties quit-claimed a portion of its property to Bose, its
property manager, after this litigation began. Defendant Whitney is the tenant
operating the stable on the property.

4
 At the time of the sale to R. C. in 1985, Rives granted “a sixty foot wide

easement which runs parallel to the south boundary line” of the property. The deed

did not describe the easement location in more detail; instead, it explicitly provided:

“a relocated easement of ingress and egress will be obtained between the parties

hereto, their respective heirs and assigns subsequent to the date of this conveyance.”

A Rives officer testified that this agreement was made so that the parties involved

could later agree upon a mutually convenient location.

A major issue at trial was whether the easement was relocated by agreement

between the parties or their predecessors in title. While the M. P. defendants contend

the evidence showed that the easement was never relocated with respect to their

property, citing portions of the record, R. C. points to evidence in the record,

including surveys, deeds, and testimony, showing that the easement was relocated by

agreement to an existing roadway on the property, known as “Woods Road” or “Old

Woods Road.” Testimony was presented that this route was used from R. C.’s

acquisition of the property in 1985 until 2005, by R. C. and others, including a lessee

of R. C. which operated a model airplane club on the land, and the Army Corps of

Engineers, which used the roadway to access a dam release warning horn on the river.

R. C. presented surveys referenced in the various deeds which identified this roadway

5
as its easement. Some evidence was also presented to show that after the equestrian

complex was developed in 1998 by Silver Creek, a predecessor in title to the M. P.

defendants, a barn blocked a portion of this existing roadway, and a gravel drive was

installed around it.

The location of the easement became an issue after Mommies Properties

purchased the stable property in 2005 and blocked access to R. C.’s property,

informing R. C. by e-mail that it could no longer use the roadway. R. C. presented

evidence that after matters reached this impasse, it began negotiations with both the

M. P. defendants and the Cambridge defendants to move the easement to a location

agreeable to all the parties. Testimony was presented that a location was agreed upon,

and that R. C. constructed a roadway at its expense, referred to by the parties as the

“New Road.” This roadway, however, was also blocked by defendants, and this action

followed.

At trial, while preparing the special verdict forms, the parties discussed with

the trial court whether they should provide for the jury to find multiple locations of

the easement over time. The trial court observed, “this is just a matter whether this

easement’s been relocated by agreement, where was it originally and has it been

relocated by agreement. Whether somebody went around the barn for, you know, two

6
or three years is not . . . it has nothing to do with the question of whether this

easement has been relocated by the parties.” Counsel for R. C. objected, pointing out

that the evidence as presented could support a finding that “between 1995 and 2008,

R. C. Acres by agreement with Silver Creek located that easement on Woods Road,

either through the barn or later by agreement to go around the barn. And that then

there was another relocation to the new road . . . in 2008.” After some discussion and

further objection by R. C., the trial court ruled, “[A]s a matter of law, I’m finding that

. . . this easement didn’t move around like a dot moving around, no. If it was relocated

once, it was relocated once. And that’s it. And I’m finding that as a matter of law.”

The trial court, in formulating the special verdict form, in essence removed

from the jury’s consideration the issue of any intermediate locations of the easement.

This was error as a matter of law. Georgia follows the majority rule that “an easement

with a fixed location cannot be substantially changed or relocated without the express

or implied consent of the owners of both the servient estate and the dominant estate,

absent reservations contained in the instrument creating the easement.” (Citations and

footnote omitted.) Herren v. Pettengill, 273 Ga. 122, 123 (2) (538 SE2d 735) (2000).

It follows that when that consent is given, the easement may be relocated. Here, the

original deed explicitly provided that the easement would be relocated by the parties.

7
And nothing in Georgia law prohibits the relocation of an easement by agreement

more than once. In Calhoun GA NG, LLC v. Century Bank, 320 Ga. App. 472, 476

(1) (740 SE2d 210) (2013), we held that the parties’ agreement contemplated

relocation of an easement “from time to time,” dependent upon the future

construction or alteration of buildings and walkways on the servient property.

It follows that R. C. and the prior owners of the servient tract could have

agreed to relocate the easement to the “Woods Road,” and that R. C. and subsequent

owners of the servient tract could later agree to relocate the easement once more to

the “New Road.” Whether and when they did so was a question properly submitted

to the jury, and the trial court erred as a matter of law in removing this issue from the

jury’s consideration.

We note that the trial court was correct in reasoning that the first and last

locations of the easement were the only ones relevant to the first half of the bifurcated

trial. Its ruling therefore was not error with respect to the first verdict, in which the

jury established the final location of the easement as of the time of trial. But the

evidence also demonstrated that this was not the only location relevant to the separate

question of whether the defendants had interfered with R. C.’s easement, which was

the subject of the second half of the bifurcated trial. Evidence that the easement was

8
located along the “Woods Road” for a period of time was directly relevant to the

jury’s consideration of whether the defendants interfered with R. C.’s easement of

access to its property during that time, and removal of that question from

consideration was harmful error. This is confirmed by the jury’s question to the trial

court during deliberations: “Will our answer to number two [on the special verdict

form] be the final easement?” The court’s answer was, “Yes, it will be.” The jury

returned the special verdict form with two lines marked “Deeded Easement” and

“New-Relocated Road” as of “Fall 2008.” It appears from its question and its

completion of the special verdict form that the jury understood from the evidence

presented that the easement was relocated more than once, but that its decision was

limited by the special verdict form to only the initial and final locations of the

easement, including on the question of damages.

“Although the jury are the best doctors of doubt that we know, they can be

lulled, as here, into rendering an inaccurate diagnostic award when presented with

misleading symptoms. It then becomes the duty of an appellate court to intervene with

a correct judicial prescription.” (Citation and punctuation omitted.) CSX Transp. v.

Levant, 200 Ga. App. 856, 865 (1) (410 SE2d 299) (1991) (Birdsong, J., dissenting);

rev’d, 262 Ga. 313 (417 SE2d 320) (1992) (quoting dissent with approval). We

9
therefore must reverse and remand for a new trial limited to the issue of liability of

the remaining defendants with respect to all intermediate locations of the easement

for which some evidence has been shown.

2. Because it may occur on retrial, we also consider R. C.’s assertion that the

trial court improperly limited its cross-examination of a defense witness. Counsel for

R. C. asked this witness some general questions regarding the system of land

surveying in Georgia. Counsel for the M. P. defendants objected that the witness was

not qualified as an expert, and the following exchange occurred:

The Court: Well, cross has exceeded – certainly exceeded the
scope of direct. What do you say to that, [counsel]?
Counsel for R. C.: Well, Your Honor, I don’t know of a rule that
restricts me to the scope of direct. But I’m not asking him for opinions,
I’m asking him for facts about surveying at this point.
Counsel for Cambridge: Your Honor, for the record, the White
defendants will object to this line of questioning. It clearly exceeds the
very last –
The Court: I think we’re now under the new rules of evidence. .
. . [It] used to be correct that it wasn’t restricted. I believe under the new
rules of evidence, you’re now restricted to the scope of direct. I don’t
think you can go beyond the scope of direct.
Counsel for R. C.: Then I have no further questions.

This was error. Federal Rule of Evidence 611 (b) indeed limits cross-

examination to the scope of direct: “Scope of Cross-Examination. Cross-examination

10
should not go beyond the subject matter of the direct examination and matters

affecting the witness’s credibility. The court may allow inquiry into additional matters

as if on direct examination.” But this is one of several instances of the Georgia

Evidence Code’s divergence from the federal rules. The Code section in question,

OCGA § 24-6-611 (b)5, does not track the federal rule but instead provides:

A witness may be cross-examined on any matter relevant to any issue in
the proceeding. The right of a thorough and sifting cross-examination
shall belong to every party as to the witnesses called against the party.
If several parties to the same proceeding have distinct interests, each
party may exercise the right to cross-examination.

“Where a provision of the new Evidence Code differs in substance from the

counterpart federal rule, as interpreted by federal courts, we must correspondingly

presume that the General Assembly meant the Georgia provision to be different.”

(Footnote omitted, emphasis in original.) Parker v. State, ___ Ga. ___ (3) (a) (Case

No. S14G1005, decided Feb. 16, 2015).

The long-standing Georgia rule is that

5
Because this case was tried in 2013, Georgia’s new Evidence Code applies.
Ga. L. 2011, p. 99, §101.

11
 [t]he right of cross examination is a substantial right, the preservation of
which is essential to the proper administration of justice and extends to
all matters within the knowledge of the witness, the disclosure of which
is material to the controversy. This right should not be abridged. It is the
duty of the court both to protect a witness under cross-examination from
being unfairly dealt with, and to allow a searching and skillful test of his
intelligence, memory, accuracy and veracity. As a general rule, it is
better that cross-examination should be too free than too much
restricted. The right of cross-examination in this state includes
questioning a witness about subjects relevant to any of the issues in the
case, not simply those matters elicited on direct examination.

(Citations and punctuation omitted.) James v. State, 260 Ga. App. 536, 536-537 (1)

(580 SE2d 334) (2003). See also Stone v. State, 250 Ga. 718, 720 (300 SE2d 500)

(1983) (“The trial court erred in ruling that defendant could not seek this information

on cross-examination simply because it had not been brought out during direct.”)

3. Finally, R. C. complains that the judgment entered below with respect to the

location of the easement does not sufficiently identify or describe the easement,

preventing it from obtaining marketable title.6 In the first part of the bifurcated trial,

the jury was asked to locate both the original and the final location of the easement

6
We note that the trial court did not have the opportunity to rule on R. C.’s
pending Motion to Amend Judgment before the notice of appeal was filed.

12
on a plat provided as part of the special verdict form. During the preparation of the

form, R. C. proposed that the jurors be given clear choices based upon a survey as to

the location of the easement, rather than drawing a line, because “they obviously

won’t be able to make a survey with a colored marker, and we will be left to guess

where on the ground that the jury indicated to locate the easement.” The M. P.

defendants responded that “[t]he Court has authority to interpret the verdict in

connection with future proceedings,” and asserted that it was within the trial court’s

power to discern the jury’s intent based upon the surveys admitted into evidence. The

trial court concluded that it would take the jury’s mark and “interpret that location”

to scale.

The jurors drew two lines on the plat with a marker, labeling one “Deeded

Easement” and the other “New-Relocated Road,” but the trial court in its judgment

did not reduce to scale the location of the line indicating the “New-Relocated Road.”

Nor was it made clear in the judgment whether the easement would follow the exact

metes and bounds of the “New-Relocated Road” as built, or the line as drawn by the

jury on the survey. The trial court had previously determined that the width of the

easement was 60 feet, but that also was not incorporated in the judgment on the jury

verdict.

13
 Judgment and execution shall conform to the verdict, and a judgment
may be amended by order of the court to conform to the verdict upon
which it is predicated, even after an execution issues. The judgment
must conform to the reasonable intendment of the verdict upon which
it is based, as determined by an inspection of the record, including the
verdict and pleadings. Consequently, the trial court was required to
examine the record and determine if [the jury’s intent] plainly appeared
upon the face of the record.

Kaufman Dev. Partners v. Eichenblatt, 324 Ga. App. 71, 75-76 (3) (749 SE2d 374)

(2013).

A description of property “is sufficiently certain when it shows the intention

of the grantor, as to what property is conveyed, and makes its identification

practicable. When this appears, the exact location and boundaries of the land may be

shown by extrinsic evidence.” (Citation and punctuation omitted.) Norton Realty &

Loan Co. v. Bd. of Ed. of Hall County, 129 Ga. App. 668, 674-675 (4) (200 SE2d

461) (1973). In Norton, we held that the necessary information was provided in a

judgment incorporating a specific plat in evidence, and that the width of the easement

could be supplied from other pleadings in the case. Id. Here, in contrast, while the

evidence exists in the record and the trial court indicated its intention to incorporate

it in the judgment, it did not do so. In such circumstances, we may vacate the

14
erroneous part of the judgment and direct that the trial court conform it to the jury’s

verdict. Pinkerton & Laws v. Macro Constr., 226 Ga. App. 169, 172 (4) (b) (485

SE2d 797) (1997).

We therefore vacate the portion of the trial court’s judgment regarding the

ultimate location of the easement, and remand with the direction that the trial court

amend the judgment to conform to the jury’s verdict and the evidence, to make the

description of the easement sufficiently certain.

Case Nos. A14A1689 and A14A2102

In these appeals, conditioned upon reversal in the main appeal, Mommies

Properties LLC and Bose complain of the trial court’s denial of their motions for

sanctions due to alleged spoliation of evidence by R. C. At issue is a poster or

enlargement, described by cross-appellants as an “oversized exhibit board,” that was

used during a hearing on a temporary restraining order in 2009. Former counsel for

R. C. displayed the board for the court, stating, “This is a plat of the property, and

that’s the Old Woods Road (indicating) on the second page. It’s a blow up of the

same property showing the Old Woods Road that crosses the property of Mommie’s

and Cambridge.” But he did not identify it as an exhibit or offer it in evidence. During

cross-examination, former counsel for Mommies marked the board as “Plaintiff’s

15
Exhibit No. 1,” but also did not offer it in evidence. The court reporter’s transcript

shows that “Exhibit No. 1” for the Petitioner was “Not Admitted.” The trial court

stated in its written order that it reviewed this board in considering the application for

a TRO, and that it appeared to be a plat prepared by Rochester and Associates, a

surveyor.7 At some time before trial in 2013, however, the board disappeared.8

In September of 2013, Mommies Properties and Bose moved for sanctions,

seeking the ultimate sanction of dismissal and arguing that the absence of this board

prejudiced their case. By affidavit filed with his motion, Bose, who was a witness at

the 2009 hearing though not yet a party, identified certain inscriptions or markings

that he claimed to have observed on the missing board. Based on this testimony,

Mommies Properties and Bose contended that the board contained information “that

the other indisputable facts show were false,” that this information contradicted

deposition testimony, and that they were deprived of the opportunity to cross-examine

witnesses regarding inconsistencies between the board and other surveys.

7
An officer of Rochester & Associates testified by affidavit that every plat, map
and survey in its possession had been produced.
8
At the time of the hearing on the TRO, R. C. was represented by a different
law firm.

16
 At the hearing on the motions, the trial court noted that the TRO was sought

under a completely different theory, that of prescriptive easement, and that the court

had ruled that theory out on summary judgment because the alleged easement did not

satisfy the requirements for prescription. It further observed that the missing exhibit

was obviously favorable to R. C. because R. C. presented it, and to the extent that

Mommies Properties and Bose sought to impeach R. C.’s witness with inconsistent

allegations, the verified complaint executed by that witness was the proper method

for doing so. In its written order, the trial court observed that the argument raised by

Mommies Properties and Bose is the exact opposite of that ordinarily raised in a

spoliation argument, because they contended they were harmed by the disappearance

of a document that they acknowledged helped R. C.’s case. The trial court concluded

that the missing exhibit supported R. C.’s contentions and “would also be very

helpful to Plaintiff at trial in explaining its shifting theories in light of the questions

which will surely be posed by the Defendants.” The court also found that for purposes

of showing contradictory or shifting theories of recovery the missing exhibit was

“surplusage,” and “remotely, at best, favorable to the Defendants and not, as they

claim, the linchpin of their case.”

17
 “Spoliation refers to the destruction or failure to preserve evidence that is

necessary to contemplated or pending litigation. Such conduct creates the

presumption that the evidence would have been harmful to the spoliator.” (Citation

and punctuation omitted.) Clayton County v. Austin-Powell, 321 Ga. App. 12, 16 (2)

(740 SE2d 831) (2013). “The trial court has wide discretion in resolving spoliation

issues, and we will not disturb its ruling absent abuse.” (Citations and punctuation

omitted.) Allen v. Zion Baptist Church, 328 Ga. App. 208, 217 (3) (761 SE2d 605)

(2014).

Assuming without deciding that a visual aid or demonstrative exhibit prepared

by counsel, see OCGA § 9-10-183, constitutes “evidence” that could be deemed

subject to spoliation, we cannot say that the trial court abused its discretion in

denying cross-appellants’ motion. In Allen, supra, we observed that the trial court did

not abuse its discretion in determining that destroyed records were cumulative of

testimony to the same effect, nor in determining that the movants “had established no

significant connection between the allegedly spoliated evidence and the success or

failure of their . . . claims.” 328 Ga. App. at 217 (3). The trial court viewed the exhibit

in question at the TRO hearing, and concluded that it was either cumulative or

18
primarily favorable to R. C., and thus its disappearance was not sufficiently harmful

to warrant sanctions. We cannot say that it abused its discretion in so deciding.

Judgment reversed in part and vacated and remanded in part in Case No.

A14A1688. Judgment affirmed in Case No. A14A1689 and Case No. A14A2102.

Barnes, P. J., and Branch, J., concur.

19