                           THIRD DIVISION
                            MILLER, P. J.,
                    MCFADDEN, P. J., and MCMILLIAN, 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


                                                                     March 16, 2017




In the Court of Appeals of Georgia
 A16A1692. VIF/VALENTINE FARMS BUILDING ONE, LLC et
     al. v. WRIGHT.

      MCMILLIAN, Judge.

      This case arises out of a boundary dispute involving a 60.85-acre tract of land

(the “Tract”) with alleged boundaries once marked by hog wire fencing. This is the

third appearance of this case in this Court, and the facts underlying the dispute are

fully summarized in this Court’s opinion in the first appeal. Wright v. VIF/Valentine

Farms Bldg. One, LLC, 308 Ga. App. 436, 436-37 (1) (708 SE2d 41) (2011) (“Wright

I”).1 We give a brief background here to identify the parties and the issues on appeal.




      1
        In the second appeal, this Court vacated the trial court’s order granting
summary judgment on Wright’s slander of title claim because it was entered while the
first appeal was pending. We remanded the case with the instruction that the trial
court reconsider its ruling in light of the opinion in Wright I.
      Prior to 1992, Dr. Herbert E. Valentine, Jr. and the family of J. B. Wright

owned large contiguous tracts of rural property in Jackson County. Wright I, 308 Ga.

App. at 436 (1). This litigation arises out of a dispute regarding the proper boundary

between these two properties, which we described in Wright I:

      In dispute is the position of the boundary running from [a] beech tree
      stump to an agreed southern endpoint. The appellees contend the
      boundary continues on a precisely straight line for 717.10 feet from the
      beech tree stump to the southern endpoint, and that, as late as the 1990s,
      a hog wire fence existed along this line. Wright alleges that errors in the
      Valentine chain of title and associated surveys fail to reflect that
      beginning at the beech tree stump, the property line runs along or
      parallel to a different hog wire fence built by his father in the 1950s that
      curved to the west, carving out a 0.86-acre, crescent-shaped area ending
      at the southern endpoint [the “Disputed Property”], and that this fence
      existed until the defendants destroyed it, which precipitated this
      litigation.


Id.

      In 1992, Valentine sold all of his property to Possum Creek Properties, L.P.

(“PCP”), a Valentine family-controlled limited partnership. Wright I, 308 Ga. App.

at 437. PCP decided to use this property to create an industrial park, and to that end,

it entered into an agreement to sell a portion of the land, i.e., the Tract, which


                                           2
encompasses the Disputed Property,2 to Grove Street Partners, LLC (GSP). GSP later

assigned its interest in the sales agreement to Valentine Farms Land, LLC (“VFL”),

and PCP conveyed the Tract to VFL in 2005. Id. VFL, in turn, conveyed its interest

in the Tract to VIF/Valentine Farms Building One, Inc. (“VIF”). Id.3

      In October 2007, after development of the Tract began and a warehouse was

constructed on the property, Wright filed the complaint4 in this case against the

Valentine Interests and WDI, alleging, inter alia, that the warehouse encroached on

his property. Wright I, 308 Ga. App. at 438 (1). After the suit was filed, on December

28, 2007, VIF transferred its interest in the Tract to First Industrial Investment, Inc.

(“FI, Inc.”), and Wright subsequently added FI, Inc. as a defendant in the lawsuit. Id.



      2
       The conveyed property’s boundary lines “did not recognize and extended past
the hog wire fence asserted by Wright” as the traditional and proper boundary
between his property and the old Valentine property. Wright I, 308 Ga. App. at 437.
      3
         Valentine’s estate was substituted for Valentine as a party defendant in this
case following his death on January 6, 2009. The estate and PCP will be referred to
collectively herein as the “Valentine Interests.” In the first appeal, this Court referred
to GSP, VFL, and VIF, none of which are related to or controlled by the Valentine
family, collectively, as the “Warehouse Development Interests.” 308 Ga. App. at 437
(1). In this appeal, we shorten that reference to “WDI.” We will refer to the Valentine
Interests and WDI collectively as the “Defendants.”
      4
       Wright dismissed an earlier lawsuit without prejudice before filing the
complaint in this litigation. Wright I, 308 Ga. App. at 437-38 (1).

                                            3
      In Wright I, Wright appealed the trial court’s order granting summary judgment

to the Valentine Interests. The trial court found that because the Valentine Interests

had relinquished title and control of the Tract, they could not be liable for any

trespass on Wright’s land by their successors in title. 308 Ga. App. at 438. This Court

reversed the grant of summary judgment, however, finding that because there was

some evidence that the Valentine Interests had sold land they did not own, a jury

issue existed as to whether they could be liable in trespass. Id. at 441 (1).

      Wright also contended that the trial court erred in issuing two orders imposing

sanctions on him for spoliation of evidence. The record showed that Wright had

admitted performing work on the Disputed Property, including digging in the area

with a backhoe and removing some hog wire fencing into a nearby debris pile, in

contravention of an order of the trial court, even though he knew that the hog wire

fence and natural features and contours of the property were important evidence in

the boundary line dispute. Wright I, 308 Ga. App. at 442 (2) (a). This Court affirmed

the trial court’s finding of spoliation, concluding that it was supported by some

evidence and thus was not clearly erroneous. Id. at 443 (2) (a).

      As sanctions for this spoliation, the trial court dismissed Wright’s claims,

including a claim for ejectment, against FI, Inc. Wright I, 308 Ga. App. at 443 (2) (b).

                                           4
The trial court also ordered that “the jury be instructed as to a rebuttable presumption

that the existence of the underbrush, vegetation and hog wire fence would have been

harmful to Wright in connection with the Warehouse Development Interests’

defenses.” Id. This Court upheld the trial court’s imposition of these sanctions,

finding that the trial court “properly considered the relevant requirements for

applying sanctions and weighed the prejudice to the defendants against Wright’s

culpability.” Id. at 444 (2) (b).

      In this appeal, the Valentine Interests and WDI appeal the trial court’s denial

of their joint motion to limit Wright’s claims for damages. Defendants assert that the

dismissal of Wright’s claims against FI, Inc. should also limit his claims for damages

against them, asserting that (1) Wright’s damages for trespass5 should be limited to

the date the trial court dismissed his ejectment claim against FI, Inc.; (2) Wright

should be precluded from recovering the cost of restoring trees on the Disputed

Property “post-ejectment”; and (3) he should also be precluded from recovering


      5
        Although Wright also asserted a slander of title claim, following the remand
from the second appeal, the trial court granted summary judgment on Wright’s
slander of title claim against the Valentine Interests and GSP. Wright did not appeal
the order regarding GSP and although Wright cited the order regarding the Valentine
Interests in his Notice of Appeal, he did not enumerate that ruling as error in his
related appeal in this case.

                                           5
mesne profits, or in the alternative, that the recovery of such profits should be capped

as of the date his ejectment claim against FI, Inc. was dismissed. The trial court

construed this portion of the Defendant’s Joint Motion as a motion for partial

summary judgment6 and denied the motion on those grounds without explanation.

      Our standard of review of the denial of summary judgment is well established.

      Summary judgments enjoy no presumption of correctness on appeal, and
      an appellate court must satisfy itself de novo that the requirements of
      OCGA § 9-11-56 (c) have been met. In our de novo review of the grant
      [or denial] of a motion for summary judgment, we must view the
      evidence, and all reasonable inferences drawn therefrom, in the light
      most favorable to the nonmovant.


(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a)

(697 SE2d 779) (2010).

      Defendants describe the gist of their motion to limit Wright’s damages as

asserting that

      the Spoliation Order judicially established the boundary line between
      the properties by denying [Wright’s] right to challenge it as to the party
      that he identified in [this case] as the Disputed [Property]’s current

      6
       The Defendants invited the trial court to treat the Joint Motion as one for
summary judgment to the extent it considered matters outside the pleadings, and
Wright submitted additional documentation as exhibits to his brief in opposition.

                                           6
      owner, and because that is true, no trespass could have possibly
      occurred after the claim to eject that defendant was dismissed.


      The trial court entered the Spoliation Order, dismissing “all counts and claims

for relief” against FI, Inc. based on Wright’s willful spoliation of evidence on March

27, 2009, and on May 14, 2009, it entered a final order and judgment dismissing all

claims against FI, Inc. with prejudice. This Court later affirmed those orders in Wright

I. 308 Ga. App. at 444 (2) (b). The Defendants argue that the dismissal of Wright’s

ejectment claim prevented any claim for damages arising thereafter based on any

assertion by Wright of an interest in the Disputed Property. We agree.

      Under OCGA § 9-11-41 (b), a dismissal “operate[s] as an adjudication upon

the merits unless the court in its order for dismissal specifies otherwise.” Although

the dismissal order in this case was issued as a sanction for spoliation of evidence,

Georgia courts have held that orders dismissing claims or striking pleadings as a

sanction for willful discovery violations function as an adjudication on the merits

unless the order specifies otherwise. Bagwell v. Bagwell, 290 Ga. 378, 380 (721 SE2d

847) (2012) (dismissal of husband’s petition for modification as a sanction for his

failure to comply with discovery constituted an adjudication on the merits); Georgia

Cash America, Inc. v. Greene, 318 Ga. App. 355, 358 (1) (734 SE2d 67) (2012) (trial

                                           7
court’s order striking arbitration defense for discovery violations was an adjudication

on the merits); Brantley v. Sparks, 167 Ga. App. 323, 324 (306 SE2d 337) (1983)

(sanction of dismissal of complaint based on a finding of willful violation of

discovery order operates as an adjudication on the merits). We see no reason to treat

a dismissal based on spoliation any differently.

       Therefore, because neither the Spoliation Order nor the judgment issued

thereon provide otherwise, the dismissal of Wright’s claims against FI, Inc. operated

as an adjudication on the merits of his ejectment claim. And in Georgia, “[a] judgment

in ejectment shall be conclusive as to the title between the parties thereto unless the

jury awards the plaintiff less than the fee.” OCGA § 44-11-13. Thus, the entry of

judgment on the Spoliation Order established title in the Disputed Property in favor

of FI, Inc., thus eliminating Wright’s claim of right to the property as of May 14,

2009, and we find that Wright has no claim for damages against the Defendants

arising after that date.

       Moreover, it is well settled that a plaintiff in an ejection action must establish

that he has title to the disputed property in order to set out a prima facie case. See

Mathews v. Cloud, 294 Ga. 415, 417 (1) (754 SE2d 70) (2014) (plaintiff carried

burden of showing good record title to establish prima facie ejectment case); Evans

                                           8
v. Elder, 219 Ga. 566, 567 (134 SE2d 803) (1964) (“It is fundamental that the

plaintiff must, in order to recover, show that the legal title, or its equivalent, as well

as a right of entry at the time the suit is filed, rests in him[.]”) (citation and

punctuation omitted); OCGA § 44-11-1 (“A plaintiff in ejectment must recover on the

strength of his own title and not on the weakness of the defendant’s title.”). See also

OCGA § 44-2-22 (a prima-facie case respecting title to land requires proof of good

record title for a period of 40 years). Since Wright has no ground to assert a claim for

ejectment, it necessarily follows that he cannot pursue a claim for “post-ejectment”

damages for the replacement of trees on the Disputed Property.

      Likewise, we find that Wright no longer has a claim for mesne profits, which

is an element of damages that must be pled as a separate count in an ejectment action.

See OCGA § 44-11-7 (a). Wright cites no authority to support a claim for mesne

profits independent of a claim for ejectment, nor have we uncovered any. To the

contrary, OCGA § 44-11-7 (b) provides that “[n]o plaintiff in ejectment shall have

and maintain a separate action in his behalf for the recovery of mesne profits7 which


      7
        “Mesne profits” are “intermediate profits – that is, the profits which accrue
between two given times, and is defined as the value of use or occupation of land
during the time it is held by one in wrongful possession of it.” 3 Ga. Jur. Property §
30:9 (updated March 2017).

                                            9
may have accrued to him from the premises in dispute.” See also 3 Ga. Jur. Property

§ 30:9 (updated March 2017) (“An action for mesne profits is available only when

there has been an ouster of the plaintiff, as this is a prerequisite to an action in

ejectment, and there can be no recovery or damages unless there is recovery of the

land.”).

      Accordingly, we reverse the trial court’s denial of the Defendant’s Joint Motion

as to Wright’s claim for damages.8

      Judgment reversed. McFadden, P. J., concurs. Miller, P. J., concurs in

judgment only.




      8
         Nothing in this opinion is intended to address other damages that Wright may
still be able to recover on any remaining claims.

                                         10
 A16A1692. VIF/VALENTINE FARMS BUILDING ONE, LLC et

       al. v. WRIGHT.

      MILLER, Presiding Judge, concurring in judgment only.

      While I concur with the result reached by the majority in this case, I do not

agree with all that is said. Accordingly, I concur in the judgment only, and as a result,

the majority’s opinion is not binding precedent. See Court of Appeals Rule 33 (a).
