Zywiciel v. Historic Westside Village Partners LLC

An easement existed in a section of road running between the parties' properties because both properties descended from same original subdivision described on the recorded plat, despite the fact that the plaintiffs' deeds contained no reference to either the plat or the road.

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Both of these appeals turn on a dispute over whether an easement exists in a section of road abandoned by the City of Atlanta to facilitate the Atlanta Development Authority’s plans for a $120 million mixed-use development, Historic Westside Village. The cases are consolidated for our review. The section of road at issue formerly was known as Harwell Street, N.W., and runs between property owned by defendants-appellants Robert N. Zywiciel and Precious J. Muhammad at what is now 19 Joseph E. Lowery Boulevard, N.W. “19 Joseph E. Lowery”, and property owned by plaintiff-appellee Atlanta Westside Village Partners, LLP “Atlanta Westside” and developed by plaintiff-appellee Historic Westside Village Partners, LLP “Historic Westside” at 37 Joseph E. Lowery Boulevard, N.W. “37 Joseph E. Lowery”.

Zywiciel and Muhammad are represented by separate counsel and filed separate appeals from the trial court’s denial of their motion for partial summary judgment and grant of Historic Westside’s cross-motion for summary judgment. Zywiciel and Muhammad both allege that the trial court erred, inter alia, when it found: 1 that Historic Westside and Atlanta Westside have an easement; 2 that this easement was not extinguished by the actions of the City of Atlanta; and 3 that Zywiciel and Muhammad were guilty of laches in delaying their opposition to Historic Westside’s and Atlanta Westside’s use of the easement. Zywiciel alone asserts error as to the trial court’s finding that his counterclaims fail, and additionally appeals from the trial court’s grant, over both his and Muhammad’s objection below, of Historic Westside’s motion to add Atlanta Westside as a party plaintiff. Finally, Zywiciel alone appeals from the trial court’s denial of his motions to extend discovery and for reconsideration of that denial. For the reasons that follow, we affirm in Case No. A11A1582, and in Case No. A11A1243, we affirm and the case is remanded for further proceedings consistent with this opinion.

Zywiciel v. Historic Westside Village Partners LLC

An easement existed in a section of road running between the parties' properties because both properties descended from same original subdivision described on the recorded plat, despite the fact that the plaintiffs' deeds contained no reference to either the plat or the road.

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