                                 FOURTH DIVISION
                                  DILLARD, C. J.,
                               RAY, P. J., and SELF, J.

                     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


                                                                      August 8, 2017




In the Court of Appeals of Georgia
 A17A1338. WOOTEN, et al. v. WILLIAMS, et al.
 A17A1339. WILLIAMS, et al. v. WOOTEN, et al.
 A17A1340. WILLIAMS, et al. v. WOOTEN, et al.

      RAY, Presiding Judge.

      Olin Wooten, Guy P. Brown, and Perry Brown1 (collectively “Wooten”) filed

an action seeking to establish a private way over and across the property of Darrell

and Bonnie Williams (collectively “the Williamses”). Wooten also sought the

removal of any obstructions that had been placed on the alleged private way. The

Williamses filed a response and counterclaim, alleging that certain actions by Wooten

had deprived them of the use and enjoyment of their property. After a trial, a jury

returned a verdict finding that Wooten had established a prescriptive easement across

      1
          G. P. Brown, LLC was later substituted as a party plaintiff in place of Guy P.
Brown.
the Williamses’ property, but the jury also awarded $5,000 in damages against Olin

Wooten and in favor of the Williamses on their counterclaim. The trial court

subsequently entered a judgment based on the verdict. Neither the verdict nor the

judgment specified the location of the prescriptive easement or directed the removal

of obstructions from the right of way. These cross-appeals ensued. In Case No.

A17A1338, Wooten contends that the Williamses were not entitled to recover

damages for any interference with the use and enjoyment of their property resulting

from the prescriptive easement, and that the trial court erred: (i) in failing to conform

its judgment to the verdict and evidence; (ii) in failing to direct the Williamses to

remove the obstructions from the right of way; and (iii) in refusing to allow a rebuttal

witness to testify at trial. In Case Nos. A17A1339 and A17A1340, the Williamses

bring two identical appeals from the trial court’s denial of their motions for directed

verdict and for judgment notwithstanding the verdict, arguing that Wooten failed to

prove the location and width of the right of way and was therefore not entitled to a

prescriptive easement. We consolidate the appeals for the purposes of review. For the

reasons that follow, we affirm in part, reverse in part, vacate in part, and remand with

direction in Case No. A17A1338, and we affirm in Case No. A17A1340. We dismiss

the identical appeal in Case No. A17A1339 as redundant.

                                           2
                                 Case No. A17A1338

      1. As a preliminary matter, we take up the Williamses’ motion to dismiss

Wooten’s appeal in Case No. A17A1338, which argues that we lack jurisdiction

because Wooten filed the notice of appeal on the same day that the Williamses filed

a motion for judgment notwithstanding the verdict. We see no basis for dismissal.

      Upon examination of the record, we note that Wooten’s notice of appeal was

filed at 1:15 p.m. on September 26, 2016, and that the Williamses’ motion for

judgment notwithstanding the verdict was filed 19 minutes later, at 1:34 p.m. In

dealing with the co-existence of a timely notice of appeal and a subsequent timely

motion for post-judgment relief, our Supreme Court has held that:

      [e]ven though a notice of appeal may divest the trial court of
      jurisdiction, we conclude that such divestiture does not become effective
      during the period in which a motion for [judgment notwithstanding the
      verdict] may be filed. In the event a motion for [judgment
      notwithstanding the verdict] is timely filed . . . , the effectiveness of the
      divestiture of jurisdiction is then delayed until the motion for [judgment
      notwithstanding the verdict] is ruled upon and a notice of appeal to the
      ruling has been filed or the period for appealing the ruling has expired.


(Citations omitted; emphasis supplied.) Housing Authority of City of Atlanta v.

Geeter, 252 Ga. 196, 197 (312 SE2d 309) (1984). Accord Jones v. State, 309 Ga.

                                           3
App. 149, 149-150 (1) (709 SE2d 593) (2011) (where notice of appeal had not yet

ripened when subsequent motion for new trial was timely filed, the trial court’s

jurisdiction to hear the motion for new trial was preserved).

      As both parties are seeking post-judgment relief, we conclude that this rule

controls the instant case. Here, the timely notice of appeal was filed on the same day

and just minutes before the timely motion for judgment notwithstanding the verdict.

Furthermore, we note that the trial court has since ruled on the Williamses’ motion

for judgment notwithstanding the verdict, denying the motion in its entirety, and the

Williamses have now appealed from the trial court’s ruling. Therefore, the

Williamses’ motion to dismiss is denied. Wooten’s request for attorney fees regarding

the motion to dismiss is also denied.

      2. At trial, Wooten objected to the trial court’s decision to allow the

Williamses’ claim for damages for deprivation of the use and enjoyment of their

property to remain for the jury’s consideration in the event the jury found that Wooten

had established a prescriptive easement. On appeal, Wooten contends that the jury’s

finding that Wooten had established a prescriptive easement precludes the Williamses

from recovering damages for their claim. This argument fails.



                                          4
      Here, the record shows that the Williamses’ claim for damages arises out of

Olin Wooten’s intimidation, threats of physical harm, and acts which interfered with

the Williamses’ use and enjoyment of their property, not Wooten’s use of the disputed

private way. Specifically, the evidence shows that, on one occasion, Olin Wooten

went upon the Williamses’ property and informed Mr. Williams that he had a gun,

and he asked Mr. Williams to get a gun so that the two could resolve their differences

right then and there. On several other occasions, Olin Wooten would pull his vehicle

onto the Williamses’ property and just sit there.

      It is well-settled that

      [w]hen a deprivation of use and enjoyment [of property] has occurred,
      a plaintiff may recover both nominal damages and whatever the jury
      determines the defendant ought to pay, in view of the discomfort and
      annoyance to which the plaintiff and his family have been subjected by
      the [defendant’s actions].


(Citations and punctuation omitted.) Davis v. Overall, 301 Ga. App. 4, 6 (1) (686

SE2d 839) (2009).

      Based on the pleadings and the foregoing evidence, the jury was authorized to

find that Olin Wooten’s harassment deprived the Williamses of the peaceful use and




                                          5
enjoyment of their property, separate and apart from Wooten’s claim for a

prescriptive easement. Accordingly, we find no error.

      3. Wooten next contends that the trial court erred in denying the motion to

amend the judgment to conform the pleadings, verdict, and evidence. Specifically,

Wooten argues that the judgment should be conformed: (i) to include a particular plat

tendered into evidence to designate the location and size of the access road upon

which the jury awarded Wooten a prescriptive easement; and (ii) to order the

Williamses to remove the obstructions that they placed across the access road, as pled

in the complaint. We shall address each issue in turn.

      (a) Wooten first argues that the judgment should be amended to incorporate a

certain plat that was tendered into evidence to establish the location of the

prescriptive easement. We agree.

      We note that Wooten’s attorney prepared the initial jury verdict form and did

not object to the final version that was submitted to the jury, and the verdict form did

not ask the jury to determine the location and size of the prescriptive easement.

Ordinarily, the failure to object to the verdict form waives any error relating to the

manner in which questions on a verdict form are submitted to the jury. See Auto-

Owners Ins. Co. v. Dolan, ___ Ga. App. ___ , *3 (2) (Case No. A17A0408, decided

                                           6
June 28, 2017). However, we also acknowledge that “[a] judgment must conform to

the verdict, [OCGA § 9-12-9]; and likewise it must follow the true meaning and intent

of the finding of the jury. . . . In determining whether a judgment conforms to the

verdict, the judgment must be construed with reference to the pleadings and the

evidence.” (Citations omitted.) Taylor v. Taylor, 212 Ga. 637, 638 (1) (94 SE2d 744)

(1956).

      Here the evidence shows that the property of both parties lies adjacent to the

Little Ocmulgee River in Wheeler County. The Williamses’ property at issue in this

case consists of two parcels, Parcel 2 and Parcel 5, which are the last lots before one

reaches Wooten’s property. A public road leads to the Williamses’ property, but

terminates approximately 240 feet shy of Wooten’s property line.

      At trial, several plats of survey of the property at issue were tendered into

evidence and submitted to the jury. The most recent plat was prepared in 2006 and

recorded in Plat Book 7, Page 362 of the Wheeler County Records (hereinafter

referred to as “the Perry Brown plat”). The Perry Brown plat indicates that an access

road 20 feet in width runs through the Williamses’ property into Wooten’s property.

The Perry Brown plat also provides the precise directional bearings and the length of

the specific portions of the access road, designated as L18 and L19, that runs through

                                          7
the Williamses’ property. Furthermore, we note that the evidence is undisputed that

there is a metal gate across the access road where it enters into Wooten’s property.

Based on the placement of the gate and the directional bearings, length, and width of

the portions of the access road designated as L18 and L19, we conclude that the

location and size of access road has been sufficiently established by the Perry Brown

plat. However, our analysis does not end here.

      We note that there were other plats of survey that were tendered into evidence

which appear to contradict the location and size of the access road that was indicated

in the Perry Brown plat. However, those plats were prepared years before the Perry

Brown plat. Furthermore, both Olin Wooten and Guy Brown testified that the location

and size of the access road that they used for decades was that which is shown in the

Perry Brown plat. Brown further testified that he observed Wheeler County road

crews grading and maintaining the portions of the road bed designated as L18 and

L19 as reflected in the surveyor’s note on the Perry Brown plat.

      Notably, there is no evidence to indicate that the course or size of the access

road that Wooten had used for decades had changed. Although Olin Wooten testified

that they kept the access road maintained to a width of 50 to 60 feet, he explained that

they only used the existing dirt road and that they maintained both sides of the road

                                           8
to shore up and support the existing road bed. Similarly, Thomas Wooten testified

that they maintained approximately 30 feet in order to keep supporting dirt on both

sides of the existing road.2

      Lastly, in its charge to the jury, the trial court stated, in pertinent part, that in

order “[t]o establish a private way over another’s land, the party claiming the right

must demonstrate . . . that the private way was not more than 20 feet.” (Emphasis

supplied.)

      Although the underlying facts in Floyd v. Thurman, 242 Ga. 428 (249 SE2d

230) (1978), are not identical to those presented in this case, we find that the holding

in Floyd is instructive. In Floyd, the central issue in the dispute between the parties

was the location of the boundary line between their properties. Id. at 428 (1). After

trial, the jury returned a verdict that simply stated that “[w]e the jury find in favor of

the defendants.” Id. at 428 (2). The form of the verdict was previously agreed on by

the parties. Id. On appeal, the plaintiff contended that the verdict and the resulting

judgment were void because the jury failed to make a factual finding as to where the

disputed boundary line was actually located, and that the judgment was void because

      2
          Another witness, Keith Rentz, testified that the access road was “probably 12
[to] . . . 15 [feet]” wide, but he acknowledged that he did not measure it and that it
was “[p]robably somewhere in that neighborhood.”

                                            9
it described that boundary line in its judgment based on information gleaned from a

plat that had been tendered into evidence. Id. Our Supreme Court held that:

      [I]n view of the pleadings and the issues made by the evidence, this
      verdict was not uncertain. The survey used by the judge in describing
      the boundary line in the judgment was that [which was] relied upon by
      the appellees [during] the trial, and the finding by the jury in their favor
      was a finding that this was the correct line.


(Citations omitted.) Id.

      In light of the trial court’s instruction to the jury in this case that a prescriptive

easement cannot exceed 20 feet, as well as the uncontradicted testimony of Olin

Wooten and Guy Brown confirming that the access road that they had used for

decades was accurately depicted in the Perry Brown plat, the jury’s finding that a

prescriptive easement had been established over roadway located on the lands3 of the

Williamses is consistent only with the access road depicted in the Perry Brown plat.

Accordingly, we conclude that the judgment should be amended to conform with the

evidence and to “follow the true meaning and intent of the finding of the jury.”

Taylor, supra at 638 (1) (citation omitted). Therefore, the trial court’s denial of

      3
       The verdict form used the plural term “lands.” The only plat in evidence in
which the access road appears to run across two of the Williamses’ properties (Parcel
2 and Parcel 5) is the Perry Brown plat.

                                            10
Wooten’s motion to amend the judgment is reversed, the portion of the judgment

regarding the establishment of the prescriptive easement is vacated, and the case is

remanded to the trial court with direction that it enter an amended judgment which

incorporates the Perry Brown plat, as recorded in Plat Book 7, Page 362 of the

Wheeler County Records, to establish the location and size of the prescriptive

easement.

      (b) Wooten also contends that the judgment should be amended to require that

the Williamses remove all of the obstructions from the prescriptive easement, as pled

in the complaint. We disagree.

      Here, the jury was presented with two issues to resolve in the jury verdict form:

(i) whether Wooten had established a prescriptive easement over the roadway located

on the lands of the Williamses; and (ii) whether Wooten had interfered with the

Williamses’ peace, happiness, or feelings. The jury was not asked to find what

obstructions blocked the prescriptive easement or to require the removal of any such

obstructions. “A verdict may be amended in mere matter of form after the jury has

dispersed. However, after a verdict has been received and recorded and the jury has

dispersed, it may not be amended in matter of substance[.]” OCGA § 9-12-7. Here,

an amendment of the judgment and verdict to make findings as to what obstructions

                                         11
had been placed on the right of way and to direct the removal of those obstructions

would constitute a substantive change in the jury’s findings.

      Moreover, we find no error in the trial court’s conclusion that Wooten has the

viable alternative of petitioning the probate court to remove any obstructions that the

Williamses placed on the prescriptive easement which render the access road unfit for

use. See OCGA § 44-9-59 (a) (“In the event the owner . . . of land over which a

private way may pass . . . obstructs, closes up, or otherwise renders the private way

unfit for use, the party . . . injured by the obstructions . . . may petition the judge of

the probate court in the county where the private way has been in use to remove the

obstructions”).

      For the above reasons, the trial court did not err in failing to amend the

judgment with regard to this issue.

      4. In light of our holding in Division 3 (a) above, we need not address

Wooten’s remaining enumeration of error.

                                  Case No. A17A1340

      5. In two related enumerations of error, the Williamses argue that the trial court

erred in denying their motions for directed verdict and for judgment notwithstanding



                                           12
the verdict, arguing that Wooten failed to prove the location and width of the right of

way and was therefore not entitled to a prescriptive easement. We disagree.

      On appeal from the denial of a motion for a directed verdict or for
      j.n.o.v., we construe the evidence in the light most favorable to the party
      opposing the motion, and the standard of review is whether there is any
      evidence to support the jury’s verdict.


(Citation and punctuation omitted.) Park v. Nichols, 307 Ga. App. 841, 845 (2) (706

SE2d 698) (2011).

      Based on our holding and the evidence set forth in Division 3 (a), the trial court

did not err.

                                Case No. A17A1339

      6. In Case No. A17A1339, the Williamses’ brief simply adopts the brief that

they filed in Case No. A17A1340. As they are asserting the same errors as those

asserted in Case No. A17A1340, we therefore dismiss Case No. A17A1339 as

redundant. See First Southern Bank v. C & F Svcs., Inc., 290 Ga. App. 305, 309 (5)

(659 SE2d 707) (2008).

          Judgment affirmed in Case No. A17A1340; judgment affirmed in part,

reversed in part, vacated in part, and remanded with direction in Case No.

A17A1338; and appeal dismissed in Case No. A17A1339. Dillard, C. J., and Self, J.,

concur.

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