The Superior Court of Floyd County denied Navajo Construction, Inc.’s motion for summary judgment on its trespass claim against Allen and Amy Brigham and granted the Brighams’ cross-motion for summary judgment on that claim. In the same order, the trial court denied the Brighams’ motion for summary judgment on Navajo’s negligence claim. Navajo appeals, contending the trial court misconstrued the law regarding a continuing trespass. For the reasons which follow, we affirm the denial of Navajo’s motion for summary judgment and reverse the grant of the Brighams’ cross-motion for summary judgment on Navajo’s trespass claim. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins , 261 Ga. 491 405 SE2d 474 1991. We apply a de novo standard of review to an appeal from a grant of summary judgment and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Citation omitted. Ponder v. Brooks , 256 Ga. App. 596, 597 569 SE2d 267 2002. Viewed in this light, the record shows the following undisputed facts. In 2001, Russell Hall Construction, Inc. built a “spec” house on a lot its principal owned in a new subdivision. Russell Hall made all decisions regarding the dimensions of the house and its placement on the lot. On October 30, 2001, without first obtaining a survey of the property, the Brighams bought the house from Russell Hall. On October 9, 2002, Navajo purchased the lot next door to the Brighams’ home, intending to build a spec house on it. Navajo did not obtain a survey of the parcel before purchasing it. On April 30, 2003, a survey showed that the Brighams’ home encroached on Navajo’s lot by approximately 2 feet; the fence line encroached over 5 feet. Navajo filed suit against Russell Hall and the Brighams, asserting claims for trespass and negligence. Russell Hall filed no answer and initiated bankruptcy liquidation proceedings, staying the action against it.
In ruling on cross-motions for summary judgment, the trial court found “there is no evidence the Brighams had any responsibility for where or how the house and fence were constructed, nor is there any evidence that Defendant Russell Hall was acting as an agent of the Brighams. Therefore, as a matter of law, Defendants Allen and Amy Brigham cannot be found liable for Defendant Russell Hall Construction’s trespass.”
