text:
    A17A0319.
    FOX v. NORFOLK SOUTHERN CORPORATION et al.
    (802 SE2d 319)
   Branch, Judge.

This appeal arises out of a right-of-way owned by Norfolk Southern Railroad Company and bisecting a parcel of land owned by C. Randall Fox. After the railroad constructed a passing side track running parallel to the existing track situated in the right-of-way, Fox sued Norfolk Southern Corporation and Norfolk Southern Railroad Company in Gordon County Superior Court, asserting claims for inverse condemnation and trespass. Fox now appeals from the trial court’s order granting summary judgment to Norfolk Southern, as well as the order denying Fox’s motion for reconsideration. Fox contends that the trial court erred in finding both that the Railroad constructed the passing track within its right-of-way and that Fox has not acquired any part of that right-of-way by adverse possession. Additionally, Fox asserts that the trial court erroneously found that his claim for inverse condemnation of his property situated to the east of the railroad tracks is preempted by federal law. For reasons explained more fully below, we find no error in the trial court’s grant of summary judgment to Norfolk Southern on Fox’s inverse condemnation and trespass claims related to the Railroad’s right-of-way, and we therefore affirm the grant of summary judgment on those claims. We further find, however, that the trial court erred in granting Norfolk Southern summary judgment on Fox’s claim for inverse condemnation of his property to the east of the railroad tracks. We therefore reverse that part of the trial court’s order which found that this claim was preempted by federal law.

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). “In reviewing a grant or denial of summary judgment, we owe no deference to the trial court’s ruling and we review de novo both the evidence and the trial court’s legal conclusions.” GAPIII v. Seal Indus., 338 Ga. App. 101, 102 (789 SE2d 321) (2016). Moreover, we construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. SKC, Inc. v. eMag Solutions, 326 Ga. App. 798 (755 SE2d 298) (2014).

Here, the relevant facts are largely undisputed, and they show that Fox owns a piece of real property in Gordon County that is bisected by an active railroad track. The property, which totals approximately 160 acres, originally consisted of three separate tracts of land, which the parties have referred to as Tracts 1, 2, and 3. The western boundary of Tract 1 fronts on Old Dalton Road, and Fox uses Tract 1 to access Tracts 2 and 3. Tract 1 is bounded on the east by the Railroad’s right-of-way, and Tracts 2 and 3 are bounded on the west by that right-of-way. To access Tracts 2 and 3, therefore, Fox must travel east over the tracks situated in the right-of-way. Fox does this by means of a private railroad crossing that appears to have been in existence as long as the tracks themselves.

In 1868, Norfolk Southern’s predecessor-in-interest obtained title to the right-of-way in fee simple, and the deed conveying the property describes it as

a strip of land along such line as may be adopted by the [Railroad] of sufficient width through said lot of land . .. [to] build said rail road as well as all side tracks and turn outs and necessary and sufficient for all purposes of keeping up and repairing the same not to exceed fifty feet from the center of the main line to each side making said strip not to exceed one hundred feet — full width together with all the rights and appurtenances to said strip of land. . . .

The deed further provides that the Railroad “shall construct and keep in repair all necessary stock gaps and road crossings” and that “the land owner may cultivate the soil as close to the track as the ditches will permit.” The deed was recorded in April 1871. The railroad tracks were constructed in approximately 1870 and have been in use since that time.

In 1915, the Railroad conducted a survey of all its real property to create a valuation map for filing with the Interstate Commerce Commission (“ICC”). Fox’s land is depicted on the 1916 valuation map, and the map shows the location of the right-of-way granted in the 1868 deed. The map further shows that the right-of-way is 100 feet wide, 50 feet on each side of the track, measured from the track’s centerline. The Railroad filed a second valuation map in 1927, and that valuation map also reflects that the Railroad has a 100-foot right-of-way bisecting what is now Fox’s land.

Fox purchased the property in question in fall 2001, acquiring Tracts 1 and 3 from Total Investment Properties and acquiring Tract 2 from Edmond Holland and Ted Fuller. Neither of the deeds transferring title to Fox contain metes and bounds descriptions, but the deed conveying title to Tracts 1 and 3 incorporates by reference a plat of survey dated September 9,1991, and recorded at Plat Book 23, page 35. The deed conveying title to Tract 2 incorporates by reference a September 2001 survey done for Fox in conjunction with his purchase of all three tracts and recorded at Plat Book 40, page 7. The September 2001 survey depicts all three tracts and both the 1991 and the 2001 surveys show that the Railroad owns a 100-foot right-of-way that lies between Tract 1 and the remaining property.

The train tracks bisecting Fox’s property are part of Norfolk Southern’s “H” line. In approximately 2007, Norfolk Southern began to plan the construction of a new passing side track, to run parallel to the existing tracks on the H line, including those tracks bisecting Fox’s property. As part of that process, the Railroad’s engineering department decided that the optimal design for the new passing track would require the Railroad to acquire an additional 40 feet of width adjacent to its existing right-of-way. Norfolk Southern thereafter began approaching property owners, including Fox, about purchasing from each of them the additional right-of-way requested by the engineering department. In May 2007, representatives of Norfolk Southern met with Fox, provided him with a plat showing the additional property the Railroad was seeking to purchase, and offered to buy the land for $25,000. According to Fox, he told the Railroad he would give them the property if they would provide him with a written guarantee that no train would block his private crossing for more than 30 minutes at a time. The Railroad responded that it could not provide such a written guarantee, and Fox therefore declined to sell them any additional right-of-way Engineers at the Railroad then reconfigured the plans for the passing track so that the portion bisecting Fox’s property would fit entirely within the existing right-of-way.

The new passing track became operational in January 2008, and according to Fox, trains routinely sit on the new track and block the private railroad crossing that serves his property for up to 24 hours at a time. The blockages are so frequent that Fox, who had previously grazed cattle on the land, can no longer use the property for that purpose. In September 2010, Fox filed the current lawsuit, alleging that based on both the language of the 1868 deed and historical use, the Railroad’s right-of-way was only 45 feet wide. Fox therefore contended that the construction of the side track on property outside of a 45-foot strip constituted an inverse condemnation of and trespass against his property Norfolk Southern removed the case to federal court, asserting that Fox’s trespass claim was preempted by federal law and asking the court to exercise supplemental jurisdiction over his claim for inverse condemnation. To support its preemption argument, the Railroad relied on the Interstate Commerce Commission Termination Act of 1995 (“ICCTA”), 49 USCS § 10501 et seq. That statute vests exclusive jurisdiction in the Surface Transportation Board with respect to legal remedies related to “the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities . . . 49 USCS

§ 10501 (b) (2). Specifically, Norfolk Southern argued that Fox’s trespass claim sought a remedy related to the construction and operation of a side track because if he prevailed on that claim, the Railroad would be required either to abandon the track or to pay Fox to operate the track. In response, Fox contended that he was seeking damages only for the initial taking of his property and that “[this] trespass claim is duplicative of [the] inverse condemnation claim [because both are] legal vehicle [s] to ensure that [Fox] is compensated for the loss of his property” Based on this representation, the federal court found that Fox’s claims were not preempted because

[t]he issue of whether [the Railroad] wrongfully took [Fox’s] [p]roperty does not relate to the regulation of the Railroad or affect the operation and use of the Railroad. [The Railroad] could continue operating [its] side track and would have to compensate [Fox] only for the initial wrongful taking.

The federal court therefore remanded the case to the state court.

Following extensive discovery, Norfolk Southern moved for summary judgment, arguing that because the passing side track was constructed entirely within its 100-foot right-of-way, Fox could not prevail on his claims for trespass and inverse condemnation. After a hearing, the trial court granted the Railroad’s motion and entered judgment in its favor. Fox then filed a motion for reconsideration and sought to file an additional affidavit. In his motion for reconsideration, Fox asserted for the first time that Norfolk Southern’s unreasonable interference with his private right of access across the railroad tracks had resulted in the inverse condemnation of that portion of his property situated to the east of the tracks. The trial court accepted the affidavit for filing, and held a hearing on the motion for reconsideration. The trial court thereafter denied the motion, finding that the additional affidavit did not create a factual question as to whether the Railroad had taken Fox’s property for construction of the side track. The court further found that Fox’s claim for the inverse condemnation of his property east of the railroad tracks (Tracts 2 and 3) was preempted by the ICCTA. Fox now appeals the grant of summary judgment in favor of Norfolk Southern and the denial of his motion for reconsideration.

1. Before addressing the merits of this appeal, we consider whether we have jurisdiction over the same. As noted above, the trial court granted summary judgment in favor of Norfolk Southern on Fox’s claim for the inverse condemnation of his property to the east of the railroad tracks after finding that this claim was preempted by federal law. “The preemption doctrine is a product of the Supremacy Clause, see U. S. Const., Art. VI, Cl. 2, which invalidates state laws that interfere with, or are contrary to, federal law.” Norfolk Southern R. Co. v. Zeagler, 293 Ga. 582, 598 (3) (a) (748 SE2d 846) (2013) (citation and punctuation omitted). And under Georgia law, our Supreme Court has exclusive jurisdiction over appeals “involving construction of the Constitution of the State of Georgia and of the United States and all cases in which the constitutionality of a law, ordinance, or constitutional provision has been called into question.” Atlanta Independent School System v. Lane, 266 Ga. 657 (1) (469 SE2d 22) (1996); Ga. Const. of 1983, Art. VI, Sec. VI, Par. II. Accordingly, it is well established that appellate jurisdiction lies exclusively with the Supreme Court of Georgia in cases where a party asserts an affirmative claim of preemption. Thus, where a plaintiff sues seeking declaratory or injunctive relief based on an assertion that a Georgia law, ordinance, or regulation is void in its entirety because it is preempted by federal law, appellate jurisdiction lies in the Supreme Court. See, e.g., Ward v. McFall, 277 Ga. 649, 651 (1) (593 SE2d 340) (2004) (direct appeal to the Supreme Court where plaintiff sought a declaration that the child support guidelines set forth in OCGA § 19-6-15 (b) were preempted and therefore unconstitutional); Davis v. State, 248 Ga. 783-784 (286 SE2d 430) (1982) (direct appeal to the Supreme Court from denial of defendant’s motion to dismiss indictment, in which defendant asserted that the Georgia statute punishing “criminal issuance of a bad check” was preempted in its entirety by federal law). Similarly, our Supreme Court has held that it has exclusive appellate jurisdiction where a plaintiff seeks relief based on an argument that preemption precludes the application of an otherwise valid state law in a specific category of cases. See Babies Right Start v. Ga. Dept. of Pub. Health, 293 Ga. 553, 554-555 (1) (748 SE2d 404) (2013) (appellate jurisdiction was in the Supreme Court where the plaintiff sought both a declaration that Georgia’s Administrative Procedure Act could not apply to an ALJ’s ruling regarding vendor eligibility to participate in the federal WIC program and accompanying injunctive relief).

Traditionally, however, this Court has exercised appellate jurisdiction in those cases that do not involve an affirmative claim of preemption — i.e., where preemption is raised as a defense and where that defense does not involve a direct constitutional challenge to an entire statute, ordinance or regulation on preemption grounds. In other words, we have exercised jurisdiction in those cases where a defendant argues that the plaintiff’s otherwise cognizable state law claim is preempted under the circumstances of the particular case. See Perry v. Intl. Longshoremen Assn. Local No. 1414, 295 Ga. App. 799, 801 (2) (673 SE2d 302) (2009) (holding that the individual appellants — current and former union members — could not prevail on their defense that federal law preempted the award of amounts each allegedly owed the union); Parks v. Hyundai Motor America, 294 Ga. App. 112, 113-114 (1) (668 SE2d 554) (2008) (affirming grant of summary judgment in favor of defendants based on finding that plaintiffs’ state law tort claims for defective design and failure to warn were preempted by federal regulations promulgated under the National Traffic and Motor Vehicle Safety Act of 1966); Continental PET Technologies v. Palacias, 269 Ga. App. 561, 562 (1) (604 SE2d 627) (2004) (rejecting employer’s defense that the federal Immigration Reform and Control Act of 1986 and regulations promulgated thereunder preempted Georgia law “for employment purposes relating to workers’compensation”); Smith v. Mitchell Constr. Co., 225 Ga. App. 383, 386 (1) (481 SE2d 558) (1997) (affirming grant of summary judgment to defendants and holding that plaintiff’s state law tort claims resulting from judgment creditor’s violation of bankruptcy stay were preempted by federal bankruptcy law); Central of Ga. R. Co. v. Market, 200 Ga. App. 851, 851-852 (2) (410 SE2d 437) (1991) (finding plaintiff’s state law negligence claims based on the railroad’s alleged failure to equip its locomotive with adequate safety and warning devices and the alleged operation of that locomotive at excessive speeds were preempted by federal law). But see Poloney v. Tambrands, Inc., 260 Ga. 850, 851 (1) (412 SE2d 526) (1991) (direct appeal to Supreme Court from trial court’s grant of partial summary judgment to defendant based on its finding that federal regulations “expressly preempt state tampon warning label requirements for toxic shock syndrome, including those that emanate from state tort law”).

As the foregoing demonstrates, the preemption defense cases in which we have exercised jurisdiction have not required us to determine “the constitutionality of a [specific] law, ordinance, or constitutional provision.” Instead, they required us to apply well-settled principles of law to determine whether federal law preempts state law in a specific case, thereby barring the plaintiff’s state law cause of action. See generally City of Philadelphia v. New Jersey, 430 U. S. 141, 142 (97 SCt 987, 51 LE2d 224) (1977) (in explaining its decision to remand the case to allow the New Jersey Supreme Court to resolve the question of whether federal law preempted a state statute before it addressed whether that statute discriminated against or unduly burdened interstate commerce, the Court noted that while preemption is “ultimately a question under the Supremacy Clause, analysis of pre-emption issues depends primarily on statutory and not constitutional interpretation”) (citation omitted). And it appears that our Supreme Court has approved of our exercise of jurisdiction in such cases, at least implicitly. See Perry, 295 Ga. App. 799 (appeal transferred to Court of Appeals from Supreme Court, even though the asserted defense was based, in part, on preemption); Allen v. Wright, 282 Ga. 9, 11-12 (1) (644 SE2d 814) (2007) (addressing a preemption defense and affirming this Court’s finding that HIPAA preempted OCGA § 9-11-9.2, which required a medical release form to be filed with a complaint alleging medical malpractice; the Supreme Court made no comment regarding this Court’s exercise of appellate jurisdiction); Advance PCS v. Bauer, 280 Ga. 639 (632 SE2d 95) (2006) (addressing a preemption defense and reversing this Court’s decision that plaintiff’s state law claims were not preempted by ERISA; the opinion raises no question regarding this Court’s exercise of jurisdiction).

Despite our exercise of jurisdiction in appeals involving the assertion of a preemption defense, the Supreme Court’s relatively recent decision in Babies Right Start warrants closer consideration. In Babies Right Start, the appeal was originally filed in this Court, but we transferred the case to the Supreme Court, presumably based on the fact that it involved an affirmative claim of preemption. The opinion noted the transfer and broadly stated that the plaintiff’s “preemption argument brings the appeal under our constitutional question jurisdiction” and that “the Court of Appeals lack[ed] jurisdiction” over the appeal. 293 Ga. at 554 (1) (emphasis supplied). Although this language arguably could indicate that the Supreme Court has exclusive appellate jurisdiction whenever a preemption question is raised (whether by a plaintiff seeking affirmative relief or by a defendant seeking to avoid liability under traditional state tort or property law), we are mindful that the case involved an affirmative claim of preemption which this Court historically has transferred. Further, this Court has continued to exercise jurisdiction in cases involving a preemption defense. See Midville River Tract v. Central of Ga. R. Co., 339 Ga. App. 546, 549-550 (1) (794 SE2d 192) (2016), cert. denied, Case No. S17C0712 (May 30, 2017) (affirming grant of summary judgment in favor of railroad defendants based on a finding that the Federal Railroad Safety Act preempted plaintiff’s state law negligence claims); PLIVA, Inc. v. Dement, 335 Ga. App. 398, 401-402 (1) (a) (780 SE2d 735) (2015) cert. granted, Case No. S16C0685 (September 6, 2016) (appeal withdrawn February 10, 2017) (reversing trial court’s finding that plaintiff’s state law negligence claims based on inadequate warnings on prescription drugs were preempted by federal law). In light of that fact, and given that this case involves a preemption defense rather than an affirmative claim of preemption and does not require us to decide whether a specific statute, ordinance, or regulation is preempted in its entirety by federal law, we have presumed to exercise jurisdiction over this appeal. We do so, however, cognizant of the fact that the ultimate responsibility for construing Georgia’s constitutional provisions regarding appellate jurisdiction rests with the Supreme Court and not this Court. See Saxton v. Coastal Dialysis & Med. Clinic, 267 Ga. 177, 178 (476 SE2d 587) (1996).

2. We turn now to the merits of Fox’s appeal. In his first claim of error, Fox does not dispute that Norfolk Southern constructed the passing track entirely within the 100-foot right-of-way it claims under the 1868 deed. He contends, however, that the Railroad does not, in fact, hold title to that entire right-of-way and that the trial court erred in concluding otherwise. Specifically, Fox argues that under the language of the 1868 deed, the Railroad’s right-of-way “was determined by the sighting of the new railroad,” and that the “railroad as built stretches no more than [45] feet from ditch to ditch.” Fox further contends that the Railroad never used any land beyond the ditches before building the side track. Given these facts, Fox argues that the right-of-way to which Norfolk Southern holds title is, in fact, only 45 feet wide. We disagree.

(a) As an initial matter, we note that it appears that Fox’s argument on this issue is foreclosed by OCGA § 46-8-100. Enacted in 2008, that statute provides, in relevant part:

A railroad company organized and incorporated as provided in this chapter shall be empowered:
(3) To acquire, purchase, hold, and use all such real estate and other property as may be necessary for the construction and maintenance of said road and of the stations,.. . and all other accommodations necessary to accomplish the object of the corporation; and to condemn, lease, or buy any land necessary for its use; provided, however, that to the extent an issue arises over the dimensions of any such acquisition by a railroad corporation or railroad company which occurred prior to 1913, such dimensions shall be determined by reference to the documen ts evidencing any such transaction and by examining the official map of the railroad filed with the In terstate Commerce Commission pursuant to the Railroad Valuation Act of March 1, 1913, Stat. 701, as amended, and such depictions contained on such official railroad map shall be conclusive as to the dimensions of any acquisition as of the date of such railroad map; . . .

(Emphasis supplied.) Under the plain terms of this statute, the 1913 valuation map showing the Railroad’s 100-foot right-of-way is conclusive evidence as to the dimensions of that right-of-way

In an effort to avoid this statute, Fox argues that because this version of OCGA § 46-8-100 did not become effective until after the construction of the side track, it cannot apply to this dispute because such an application would “retroactively” deprive Fox of his vested rights in the disputed property To prevail on this argument, however, Fox was obligated to come forward with some evidence showing that he does, in fact, have an ownership interest in the property at issue — either by virtue of title or by acquisition through adverse possession. As is shown below, however, Fox has failed to present any such evidence.

(b) Fox argues that the language of the 1868 deed, which granted Norfolk Southern’s predecessor in interest “a strip of land ... of sufficient width” on which to build the railroad, not to exceed 100 feet, shows that the deed conveyed to the Railroad only that land which the company actually utilized at the time it built the tracks. Put another way, Fox argues that under the terms of the 1868 deed, the width of the right-of-way was determined by the space physically occupied by the Railroad when it constructed the tracks, that title to the unclaimed portion of the 100-foot right-of-way remained with the landowner, and that title to that property subsequently passed to him. This argument, however, finds no support in the record.

For purposes of determining Fox’s taking claim, the relevant question is whether Fox, in fact, holds title to the property in question. And in this case, the record shows that he does not. As noted above, although Fox’s deeds of title do not contain a metes and bounds description of the property he was purchasing, each deed incorporates by reference a plat of survey And under Georgia law, “a deed incorporating a recorded plat by reference as the legal description [of the property] has the same effect as if written out in the deed.” Jones v. Bowen, 244 Ga. App. 300, 302 (535 SE2d 501) (2000). Thus, because each of the surveys incorporated into Fox’s deeds shows the Railroad as having a 100-foot right-of-way, the evidence demonstrates that Fox did not take title to any portion of that right-of-way In other words, regardless of any ambiguity found in the 1868 deed, the record shows that by the time Fox purchased the property, the Railroad held title to a 100-foot right-of-way and that Fox purchased his land with knowledge of that fact. Accordingly, Fox’s claim that he holds title to any part of the 100-foot right-of-way is without merit.

(c) Despite the foregoing, Fox argues that in its responses to his Requests to Admit, Norfolk Southern admitted it did not own the property on which it constructed the side track, and that it is bound by the those admissions. We disagree.

Norfolk Southern first contacted Fox by letter about purchasing the additional 40 feet of width adjacent to its right-of-way. Attached to the letter was part of a plat copied from a tax map and showing the Railroad’s right-of-way bisecting Fox’s property. In addition to depicting Norfolk Southern’s 100-foot right-of-way, the plat also showed the additional right-of-way (totaling one-half acre) that Norfolk Southern proposed to acquire from Fox. On the plat an arrow is drawn, pointing to a corner near where the existing right-of-way and the proposed additional right-of-way would meet, with the notation “south edge of the culvert.” It cannot be determined from the drawing whether the south edge of the culvert is within the 100-foot right-of-way or within the proposed additional right-of-way. It is undisputed, however, that the property on which Norfolk Southern built the new side track includes the south edge of the culvert.

Fox attached a copy of the plat sent to him by the Railroad to his second Requests to Admit and asked Norfolk Southern to admit that it offered to purchase the property shown on the plat; that the Railroad offered to purchase the property because it did not own that property; that Fox refused to sell the property to Norfolk Southern; and that the Railroad was now in possession of at least part of the property According to the parties, Norfolk Southern admitted that it “offered to purchase the 40 foot strip” shown on the plat; that it offered to purchase this property because it did not own the same; and that Fox refused to sell the Railroad this property Norfolk Southern denied, however, that it was in possession of any of the property it had offered to purchase from Fox.

Fox contends that the proposed offer Norfolk Southern made to him shows that the existing right-of-way did not extend past the south edge of the culvert. Based on this interpretation of the plat attached to the offer, Fox reasons that the Railroad’s admission that it did not own the property it proposed to buy from Fox constitutes an admission that Norfolk Southern did not own any property beyond the culvert. As noted above, however, it is impossible to determine from the plat the precise location of the southern edge of the culvert. Moreover, the plat does not constitute a survey, and there is no evidence it was taken from a survey And the option to purchase that the Railroad proposed to have Fox sign and that accompanied its written offer provided, in relevant part, “The area and legal description of the premises [to be purchased] shall be determined by an accurate field survey as soon as practicable after the execution of this option . . . Additionally, Norfolk Southern denied that it built outside its right-of-way; the plat shows that the Railroad has a 100-foot right-of-way; and Fox does not dispute that if the right-of-way is 100 feet wide, the passing track is situated on Railroad property In light of this evidence, Norfolk Southern’s admission that it did not own the property it proposed to buy from Fox does not create a disputed question of fact as to whether the Railroad’s right-of-way is 100 feet wide.

3. Fox argues that even if the Railroad did acquire title to a 100-foot right-of-way, he has gained ownership of a portion of that property (including the portion on which the side track is situated) through adverse possession. One who is claiming title by adverse possession bears the burden of showing that while acting under a claim of ownership, he has been in “public, continuous, exclusive, uninterrupted, and peaceable” possession of the land in question for a period of at least 20 years. OCGA §§ 44-5-161 (a) (3), 44-5-163; Arnold v. Shackelford, 219 Ga. 839, 843 (2) (136 SE2d 384) (1964). The question of whether the facts as alleged by the claimant are sufficient to support a claim of adverse possession is one of law to be determined by the court. Henson v. Tucker, 278 Ga. App. 859, 861 (1) (630 SE2d 64) (2006). Here, we agree with the trial court that even to the extent they are supported by evidence, the facts asserted by Fox cannot support his adverse possession claim.

Fox relies on two facts to support his claim of prescriptive title: the existence of a long-standing “hog wire” fence that he contends was situated within the 100-foot right-of-way and the use of the right-of-way by one of his purported predecessors in title, William Collins. Neither of these facts, however, supports a claim of adverse possession.

First, assuming that the fence is located within the Railroad’s right-of-way, there is no evidence that the fence was constructed or maintained under a claim of right — i.e., for the purpose of allowing Fox and his predecessors to claim title to the Railroad’s property Fox testified that the fence was there when he purchased the property, and he estimated that it had been there for decades because in places it was covered in vines, the wire was rusted to the point it was crumbling, and many of the posts were rotting and falling over. The fence was not exclusive to Fox’s property but continued onto the property of a neighbor who, like Fox, kept cattle. And Fox acknowledged that whoever constructed the fence may have done so to keep cattle off the tracks. The surveyor Fox hired offered similar testimony, acknowledging that he could not tell if the fence was placed to delineate property lines, and that it was possible that the fence had been erected to keep cattle off the tracks.

Fox further testified that he did not know who erected the fence and that it could have been either a prior property owner or the Railroad. Additionally, Fox opined that to the extent the fence was in the Railroad’s right-of-way, its placement may have resulted from the fact that the 1868 deed gave the landowner the right to utilize the property within the right-of-way for agricultural purposes. Finally, in his affidavit, Collins stated that during the 15 years he owned land adjacent to the right-of-way, he maintained an “existing fence” and also maintained a gate in the fence “to allow access across the railroad crossing bordering my property.” Collins further averred that “[t]he purpose of this fence and the locked gate was to prevent intrusions and, trespass on the railroad right of way as well as to secure my property” (Emphasis supplied.) Thus, Collins’s affidavit establishes that he was not using the fence or the gate to assert ownership of the Railroad’s right-of-way

Moreover, as Fox acknowledged in his testimony, the 1868 deed gave the landowner a limited right to use the land within the right-of-way And Fox has presented no evidence that any use of the Railroad’s right-of-way by Fox and his predecessors was anything other than permissive. See Woods v. Brannen, 208 Ga. 495, 496 (1) (67 SE2d 702) (1951). Permissive possession, however, “cannot be the foundation of a prescription until an adverse claim [of ownership] and actual notice [of that claim] to the other party.” OCGA § 44-5-161 (b). See also Drew v. DeKalb County, 239 Ga. 35, 37 (2) (235 SE2d 528) (1977). For Fox’s use of the land to establish adverse possession, therefore, he and his predecessors-in-interest were required to provide actual notice to Norfolk Southern of their adverse claim to that land. Woods, 208 Ga. at 496 (1) (where a deed conveying a right-of-way to a railway company reserved to the landowner the right to cultivate the land up to the tracks “until . . . needed for railway purposes,” the landowner’s subsequent possession of land within the right-of-way was permissive and could not ripen into prescriptive title in the absence of an adverse claim and actual notice to the railway of that claim). See also Drew, 239 Ga. at 37 (2) (landowner’s adverse possession claim as to a railroad’s right-of-way failed, where the evidence showed that her use of that land “originated by permission and that she had given no actual notice to the railroad, or its predecessors in title, of any adverse claim by her to the portion used”). To provide notice of an adverse claim, the use and occupation of the land in question must be “so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another.” Henson, 278 Ga. App. at 862 (1) (punctuation and footnote omitted). See also Arnold, 219 Ga. at 843 (2). In this case, however, no evidence shows that the fence served to exclude Norfolk Southern from its right-of-way. With respect to this issue, Norfolk Southern’s track supervisor testified that while Norfolk Southern was aware of the fence, it did not consider the fence an encroachment on its right-of-way because the fence did not interfere with the Railroad’s access to its property.

4. In his motion for reconsideration, Fox argued for the first time that the Railroad’s construction and use of the passing track had resulted in an unreasonable interference with his right of access to his property east of the railroad tracks and that a question of fact existed as to whether this interference had resulted in a taking of that property. The trial court heard argument on this issue and subsequently denied the MFR, based in part on its finding that Fox’s claim for the inverse condemnation of Tracts 2 and 3 was preempted by federal statutory law. Fox challenges this ruling on appeal. We agree with Fox that the trial court erred in finding that his claim for the alleged taking of Tracts 2 and 3 was preempted by federal law. Given this fact, and because the record shows a question of fact as to whether the Railroad’s interference with Fox’s access to his property constitutes a taking of the same, we reverse that part of the trial court’s order.

(a) We first note that, despite Norfolk Southern’s assertions to the contrary, any unreasonable interference with Fox’s ability to access Tracts 2 and 3 can support a claim for inverse condemnation. Under Georgia law, a claim for inverse condemnation arises whenever a governmental or public entity creates a condition with respect to private property that results in a taking of that property Ga. Dept. of Transp. v. Jackson, 322 Ga. App. 212, 215 (744 SE2d 389) (2013). See also Waters v. DeKalb County, 208 Ga. 741, 744 (1) (69 SE2d 274) (1952). Georgia law further recognizes that “[t]he right of access, or easement of access, to a public road is a property right which arises from the ownership of land contiguous to a public road, and the landowner cannot be deprived of this right without just and adequate compensation . . . MARTA v. Dairy, 235 Ga. 568, 575 (I) (220 SE2d 905) (1975). Thus, a taking of property occurs whenever an entity with the power of eminent domain substantially interferes with a landowner’s means of ingress and egress to his property, and “[t]he measure of damages is any diminution in the market value of the property by reason of such interference.” Dept. of Transp. v. Robinson, 260 Ga. App. 666, 667 (1) (580 SE2d 535) (2003).

With respect to such a taking, we note that it is irrelevant that the landowner’s access from the public road depends on one or more easements he may have over the property of another — including an easement across railroad tracks. See Jackson, 322 Ga. App. at 212. In Jackson, we affirmed a jury verdict in favor of the plaintiff on his inverse condemnation claim against the DOT, which resulted from the DOT’s closure of a driveway that ran from a state highway “across a tract of land with no record ownership and over a railroad crossing before reaching Jackson’s property” Id. Finding that the evidence supported the conclusion that Jackson had established a prescriptive easement over the driveway, including the railroad crossing, we found that the evidence also supported Jackson’s claim for inverse condemnation, based on the DOT’s taking of his easement. Id. at 215-216.

Moreover, an inverse condemnation claim is available even when the interference with a property owner’s access results from changes made to property owned entirely by the party causing the interference. See Louisville and Nashville R. Co. v. Merchants’ and Farmers’ Bank, 166 Ga. 310 (2) (a) (143 SE 506) (1928) (where railroad’s relocation of its tracks within its right-of-way resulted in local businesses losing ingress and egress to their property, the railroad had affected a taking of that property and was required to compensate the bu siness owners); Athens Terminal Co. v. Athens Foundry and Machine Works, 129 Ga. 393, 401 (3) (58 SE 891) (1907) (railroad required to compensate property owner for the taking of its property where the new track, built entirely on property owned in fee simple by the railroad, interfered with the “right of egress and ingress to the lot owned in fee simple by the Foundry Company”); Robinson, 260 Ga. App. at 667 (1); DeKalb County v. Glaze, 189 Ga. App. 1 (375 SE2d 66) (1988). Robinson involved the DOT’s decision to eliminate an acceleration/deceleration lane on a public highway that provided access to the Robinsons’ business. After purchasing property along the state highway and building an automotive repair shop thereon, the Robinsons had constructed the lane pursuant to an agreement with the DOT to accommodate the tractor-trailer trucks being serviced at their business. Robinson , 260 Ga. App. at 666. The Robinsons thereafter deeded the property on which the acceleration/deceleration lane was situated to the DOT, and during a subsequent road widening project, the DOT decided to eliminate that lane. The Robinsons sued for inverse condemnation, claiming that the elimination of the lane interfered with their easement of access. Id. The jury found in favor of the Robinsons, and the DOT appealed, arguing that because they owned the property on which the lane was situated, the Robinsons could not assert a taking based on the lane’s closure. This Court disagreed, noting that public improvements that result in “a substantial impairment of the property owner’s ‘easement of access’ ” may constitute a taking. Id. at 668 (1) (punctuation and footnote omitted). See also Glaze, 189 Ga. App. at 2 (1) (“it is well settled that if the installation of [public] improvements results in a substantial impairment of the property owner’s ‘easement of access,’ a taking has occurred for which compensation is required regardless of the importance of the public interests which are thereby promoted”), citing Dougherty County v. Hornsby, 213 Ga. 114, 116-117 (1) (97 SE2d 300) (1957).

In this case, it is undisputed that Fox’s sole means of ingress and egress from the public road to that part of his property east of the railroad tracks is by means of an easement over the Railroad’s right-of-way. Additionally, Fox testified that Norfolk Southern frequently parks trains on the passing track, and thereby blocks his access to Tracts 2 and 3, for up to 24 hours at a time. And according to Fox, the lack of predictable access to Tracts 2 and 3 has rendered that property useless for at least one of the agricultural purposes for which it is zoned — grazing cattle. Given this evidence, a question of fact exists as to whether the passing track substantially interferes with Fox’s access to his property to the extent that a taking of that property has occurred. See Glaze, 189 Ga. App. at 2 (1) (finding that whether the county’s installation of curbs in its existing right-of-way “substantially interfered with” a store owner’s access to his property was a “question[ ] of fact to be resolved by the jury”). The trial court, however, never considered the merits of Fox’s claim for the taking of his property east of the railroad tracks, finding instead that such a claim was preempted by federal statutory law. This ruling was in error.

(b) The trial court found that Fox’s claim for the inverse condemnation of the property in question was preempted by the provisions of the ICCTA. Enacted in 1996, this statute abolished the Interstate Commerce Commission and created the Surface Transportation Board (“STB” or “the Board”) to administer the Act. See Elam v. Kansas City Southern R. Co., 635 F3d 796, 804 (III) (A) (2) (5th Cir. 2011); 49 USCS §§ 10101, 10102 (1). In the ICCTA, Congress expressly conferred on the STB exclusive jurisdiction over the regulation of railroad transportation. With respect to the Board’s regulatory authority, the Act provides:

The jurisdiction of the Board over —
(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,
is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.

49 USCS § 10501 (b) (emphasis supplied).

Recognizing that the STB “is uniquely qualified to determine whether state law should be preempted by the ICCTA,” courts have traditionally looked to STB decisions when analyzing a claim of preemption. Emerson v. Kansas City Southern R. Co., 503 F3d 1126, 1130 (III) (A) (10th Cir. 2007) (citation and punctuation omitted). See also Adrian & Blissfield R. Co. v. Village of Blissfield, 550 F3d 533, 540 (II) (B) (6th Cir. 2008); New Orleans & Gulf Coast R. Co. v. Barrois, 533 F3d 321, 331-332 (III) (B) (5th Cir. 2008); Green Mountain R. Corp. v. Vermont, 404 F3d 638, 642 (II) (2d Cir. 2005). In 2005, the Board articulated a framework for analyzing preemption claims, and under that framework, state and local laws and/or claims asserted under those laws may be preempted either categorically or as applied. CSX Transp., Inc. Petition for Declaratory Order, 2005 WL 1024490, at *2-3 (1) (STB May 3,2005). See also Barrois, 533 F3d at 332 (III) (B) (describing the STB’s analytical framework); Wedemeyer v. CSX Transp., 850 F3d 889, 894-895 (II) (7th Cir. 2017). A state or local law (and any action brought thereunder) is categorically preempted if the law itself or the remedy it provides “directly conflict[s] with exclusive federal regulation of railroads” and thereby unreasonably burdens interstate commerce. CSX Transp., 2005 WL 1024490 at *3 (1). See also Union Pacific R. Co. v. Chicago Transit Auth., 647 F3d 675, 679 (II) (A) (7th Cir. 2011).

The second category of preempted state laws are those that are preempted as applied. The as-applied preemption analysis is used in those cases involving a traditional state law cause of action — i.e., a cause of action that arises under generally applicable statutory or common law that is not directed specifically at railroads or their property See Tubbs v. Surface Transp. Bd., 812 F3d 1141, 1144-1145 (II) (8th Cir. 2015) (using the as-applied analysis to determine whether plaintiff’s numerous state law claims, including a claim for inverse condemnation, were preempted under the ICCTA); Island Park v. CSX Transp., 559 F3d 96, 99 (2d Cir. 2009) (conducting an as-applied analysis to determine whether federal law claims for taking of property without compensation were preempted); Union Pacific, 647 F3d at 679-680 (II) (A) (because state law condemnation actions are necessarily fact-dependent proceedings, the question is whether the action was preempted as applied); Franks Investment Co. v. Union Pacific R. Co. 593 F3d 404, 411 (II) (A) (5th Cir. 2010) (as-applied analysis controls suit governed by Louisiana property law, as that law was not intended “to regulate railroad transportation”); Guild v. Kansas City Southern R. Co., 541 Fed. Appx. 362, 368 (IV) (5th Cir. 2013) (as-applied analysis governs negligence suit brought under Mississippi tort law for damage done by railroad to a privately-owned spur track adjoining the railroad’s main track); Norfolk Southern R. Co.—Petition for Declaratory Order, 2013 WL 5891582 at *3 (STB November 4, 2013) (the as-applied analysis controls the question of whether the ICCTA preempts state law claims for inverse condemnation). In such cases, preemption occurs not because the law itself seeks to regulate railroads but because allowing a particular state law claim to proceed would “have the effect of unreasonably burdening or interfering with rail transportation.” Franks, 593 F3d at 414 (II) (B). See also CSX Transp., 2005 WL 1024490 at *3 (1). The question of whether a state law cause of action is preempted as applied is a fact-specific one, and depends heavily on the circumstances of a particular case. Tubbs, 812 F3d at 1144 (II); Norfolk Southern, 2013 WL 5891582 at *3.

Here, because Fox is asserting a traditional state law claim for inverse condemnation, we analyze Norfolk Southern’s preemption defense under the as-applied standard. Tubbs, 812 F3d at 1144 (II) (A). Specifically, “we must assess whether, as applied to the facts of this case, [Georgia inverse condemnation law] would have the effect of unreasonably burdening or interfering with rail transportation.” Guild, 541 Fed. Appx. at 367-368 (IV) (citation, punctuation and emphasis omitted). See also Adrian & Blissfield R. Co., 550 F3d at 540 (II) (B).

Despite the fact that Norfolk Southern, as the party asserting federal preemption, bears the burden of proving that the doctrine applies in this case, Guild, 541 Fed. Appx. at 368 (IV), its brief neither offers any argument nor cites to any evidence showing that rail transportation will be burdened if Fox should prevail on his inverse condemnation claim. Instead, Norfolk Southern argues that Fox’s claim is preempted because it arises out of the construction and use of a side track. While that fact is certainly relevant for purposes of analyzing the question of preemption, it is not determinative of that question. Instead, as explained above, Norfolk Southern is required to show that Fox’s inverse condemnation claim, if successful, would burden or interfere with rail transportation. Moreover, the Railroad must be able to identify an articulable, specific burden or interference that Fox’s claim would impose on rail transportation. Id. (to show that a state law claim is preempted by the ICCTA, a railroad must come forward with something more than “general evidence or assertions” that the claim “would somehow affect rail transportation”); Franks, 593 F3d at 415 (II) (B) (reversing a district court’s finding that a Louisiana law granting landowners the right to establish private, grade-level crossings on railroad property was preempted by the ICCTA; the appellate court noted that the railroad showed only that, as a general rule, railroad crossings affect rail transportation in incidental ways, and it failed to tie any of the problems generally associated with crossings, such as increased costs, drainage problems, or decreased rail speeds, to the crossings at issue). Based on the current record, Norfolk Southern has failed to make this required showing.

In its brief, Norfolk Southern attempts to equate Fox’s claim for inverse condemnation with a state law claim for continuing nuisance, and it seems to argue that the relief afforded by such a claim would interfere with railroad operations. This argument, however, ignores the fact that under Georgia law, a claim for continuing nuisance affords very different, relief than that afforded by a claim for inverse condemnation. A plaintiff who prevails on a claim for continuing nuisance may recover accrued damages (i.e., all damages that have accrued within the four years preceding the suit) for not only any physical damage to property but also “for annoyance and discomfort caused by such nuisance as a result of the maintenance of the [same] Weller v. Blake, 315 Ga. App. 214, 216 (1) (726 SE2d 698) (2012) (punctuation and footnote omitted). See also Reid v. Gwinnett County, 242 Ga. 88, 89 (249 SE2d 559) (1978). Furthermore, a continuing nuisance claim subjects a defendant to an award of punitive damages, and it also allows the plaintiff to obtain injunctive relief requiring the defendant to take affirmative action to abate the nuisance. Reid, 242 Ga. at 89; Weller, 315 Ga. App. at 219 (3) (a). See also Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727, 731 (2) (426 SE2d 387) (1992) (the maintenance of a nuisance “is the failure to abate the nuisance after notice by the injured party”). By contrast, a plaintiff who prevails on a claim for inverse condemnation is entitled to a one-time, lump sum payment to compensate him for the losses he suffered as a result of the taking of his property. See Robinson, 260 Ga. App. at 667 (1).

Here, Fox has never sought any type of equitable relief against the Railroad, and he has maintained throughout this litigation that the only relief he is seeking is monetary compensation for the alleged taking of his property. Thus, unlike continuing nuisance claims that courts often find are preempted by the ICCTA, Fox’s action does not seek damages that accrue with each use of the side track and that result from the byproducts of “conventional and routine rail operations,” including “noise, vibration, and various discharges,” that are conducted “on the rail carrier’s own property” Norfolk Southern, 2013 WL 5891582 at *3. See also Pace v. CSX Transp., 613 F3d 1066, 1069 (III) (11th Cir. 2010) (finding that the ICCTA preempted state law nuisance claims seeking monetary damages resulting from noise and smoke coming from a newly-constructed side track); Guckenberg v. Wisconsin Central Ltd., 178 FSupp.2d 954, 958 (II) (B) (E.D. Wis. 2001) (state law nuisance claims seeking compensatory and punitive damages for interference with plaintiff’s use and enjoyment of their property resulting from noise and smoke generated by railcars on newly-constructed side track was preempted). Nor is Fox seeking injunctive or declaratory relief that would require Norfolk Southern to modify or abandon its use of the side track. See Maynard v. CSX Transp., 360 FSupp.2d 836, 838, 841-842 (2004) (plaintiffs’ state law nuisance claims alleging that the railroad’s use of a side track blocked access to their homes for up to six hours at a time was preempted in part because it sought injunctive relief against the railroad and therefore sought to regulate or interfere with railroad operations). Additionally, Fox does not seek to dispossess the Railroad from its property See Wedemeyer, 850 F3d at 898 (II) (lawsuit that sought to eject railroad from land with active, ongoing rail operations, after railroad resumed use of a previously abandoned track was preempted). Finally, Fox’s inverse condemnation claim is unique to Fox — i.e., it is not a claim that can be asserted by all “owners of property near operating rail lines anywhere.” Norfolk Southern, 2013 WL 5891582 at *3. Given the circumstances of this case, therefore, we cannot say that Fox’s claim for inverse condemnation would unreasonably interfere with or otherwise burden rail transportation. Accordingly, the trial court erred when it found that this claim was preempted by the ICCTA.

Decided June 23, 2017

David A. Webster; Evans Law Firm, Donald C. Evans, Jr.; McMickle, Kurey & Branch, Andrew E. Feske, for appellant.

Hall, Bloch, Garland & Meyer, Eileen M. Crowley, Hilary H. Adams, for appellee.

For the reasons set forth above, we affirm the trial court’s grant of summary judgment to Norfolk Southern on Fox’s claim for inverse condemnation of the property on which the new side track was constructed. We reverse the grant of summary judgment to Norfolk Southern on Fox’s claim for inverse condemnation of his property located to the east of the railroad tracks.

Judgment affirmed in part and reversed in part.

Rickman and Reese, JJ., concur.

       The appellees are referred to collectively herein, together with Norfolk Southern Railroad’s predecessors in interest, as “Norfolk Southern” or “the Railroad.”

       Where there is any conflict in the evidence, we have construed that evidence in favor of Fox as the non-movant. See SKC, Inc., 326 Ga. App. at 798.

       Tract 2 is also bounded on the west by Tract 3, on the east by the Oostanaula River, and on the north and south by private property not owned by Fox. Tract 3 is bounded on the east and north by Tract 2 and on the south and east by private property not owned by Fox.

       In 1913, Congress amended the Interstate Commerce Act to include the Railroad ValuationAct, whose purpose was to provide the federal government abasis for assessing taxes against the nation’s railroads. See Dana R. Hodges Trust v. United States, 101 Fed. Cl. 549, 559 (III) (B) (1) (Ct. Fed. Claims 2011); Southern R. Co. v. United States, 585 F2d 466 (Ct. Fed. Claims 1978). The law required railroads to file maps of all their real property with the ICC, and “[f]or Southern Railway Company [Norfolk Southern’s predecessor in interest], the ICC valuation date was June 30, 1916.” Southern R., 585 F2d at 468.

       According to Fox, his purchase of Tract 2 was contingent on his ability to purchase Tract 1 because without Tract 1 he could not access the remainder of the property.

       A passing side track allows the train on the main track to pull over so that another train (usually one traveling in the opposite direction) can pass on the main track. Thus, according to one Railroad representative, a passing track differs from a traditional side track in that its usual purpose is not to store trains for a significant length of time.

       The affidavit was that of William Collins, who Fox alleged was one of his predecessors in title. The affidavit had been executed in 2013, and counsel believed that it had been filed with the court. As a result of a clerical error, however, counsel discovered that the affidavit had not been filed prior to the grant of summary judgment.

       Citing Babies Right Start, we have also transferred to the Supreme Court cases involving an affirmative claim of preemption. See Community & Southern Bank v. Lovell, Case No. S17A0765, docketed December 14, 2016 (transfer order noted that a primary issue on appeal is whether the federal Financial Institutions Reform, Recovery, and Enforcement Act of 1989 preempts two Georgia statutes, OCGA §§ 18-2-79 and 44-12-24).

       Despite Fox’s assertions to the contrary, the unrefuted evidence of record shows that the Railroad has historically used the entire 100-foot width. The track supervisor responsible for maintaining the right-of-way bisecting Fox’s property testified that Norfolk Southern does, in fact, use all of its right-of-way, though it may not use the entire right-of-way “at all times.” The supervisor further explained that the right-of-way “is the only [property] the [Railroad has] to use for our track maintenance. Any materials that need to be unloaded or stockpiled, any debris that we have to remove, has to be done within the limits of the right-of-way.”

       There are culverts situated within the 100-foot right-of-way, running underneath the railroad tracks.

       It appears that Fox never filed Norfolk Southern’s responses with the trial court, as no copy of those responses is included in the appellate record. In his brief, Fox cites only to a copy of the Requests to Admit, but that copy does not include the Railroad’s responses. In its brief, Norfolk Southern cites to Fox’s trial court brief, filed in response to the summary judgment motion, in which Fox quotes both the Requests and the Railroad’s purported responses. Given that Norfolk Southern does not challenge Fox’s failure to file the responses or dispute the content of those responses, we have assumed that the parties’ briefs accurately represent the same.

       In this case, it appears that Fox seeks to satisfy the 20-year requirement by tacking his period of possession onto the successive periods of possession by his predecessors-in-title. See Steinichen v. Stancil, 284 Ga. 580, 582 (669 SE2d 109) (2008). ‘

       We note there is no evidence in the record showing that Collins was, in fact, a predecessor-in-interest to Fox. In his brief, Fox cites Collins’s affidavit in support of his assertion that from 1976 to 1991 Collins owned that part of the F ox property that lies to the west of the railroad tracks. Collins’s affidavit, however, merely states that he “owned property adjacent to the railroad’s right of way at issue in this dispute from 1976 through 1991.” He further avers that the property he owned consisted of a nine-acre tract “between Old Dalton Road and the railroad,” but he does not further identify that property. In its brief, however, Norfolk Southern does not challenge the assertion that Collins was a predecessor-in-interest to Fox, and we have therefore assumed that Fox now owns the property referenced in Collins’s affidavit.

       Although Fox did not raise this argument in his response to the Railroad’s motion for summary judgment, the trial court allowed him to pursue the argument as part of his motion for reconsideration, and the trial court ruled on that argument. Accordingly, because the issue was raised and ruled on in the court below, we may consider this claim of error. See RL BB ACQ I-GA CVL, LLC v. Workman, 341 Ga. App. 127, 139 (6) (a) (798 SE2d 677) (2017).

       It appears that the 1868 deed, which obligates the Railroad to construct and maintain all “necessary” railroad crossings, created an express easement in favor of the landowner. See Albenberg v. Szalay, 332 Ga. App. 665, 667-668 (2) (774 SE2d 730) (2015). Alternatively, Fox is entitled under Georgia law to claim an implied easement. Id. at 668-669 (4). See also Eardley v. McGreevy, 279 Ga. 562, 563 (1) (615 SE2d 744) (2005).

       On appeal, Fox points to the federal court’s remand order, in which the district court found that because Fox’s trespass claim was actually a claim for the taking of the property on which the side track was built, the claim was not preempted by federal statute. Fox contends that this order has a preclusive effect and operated to bar the trial court from considering the issue of preemption. We disagree . Where, as here, a remand order is based on a finding that the district court lacked subject matter jurisdiction, the federal court’s order “has no preclusive effect on the state court’s resolution of [a defendant’s] preemption defense in the same case.” In re Loudermilch, 158 F3d 1143, 1146 (11th Cir. 1998). Thus, after being “reinvested with jurisdiction,” “[t]he state court is competent to revisit the district court’s determination” as to the issue of preemption. Id. See also Soley v. First Nat. Bank of Commerce, 923 F2d 406, 409 (II) (5th Cir. 1991) (where a federal district court’s remand order is based on jurisdictional grounds, that order “will have no preclusive effect on the state court’s consideration of [a] substantive preemption defense”); 28 USCS § 1447 (c).

       Federal courts have recognized that the STB’s use of the term “categorical preemption” refers to what is more commonly known as express preemption, while its use of the term “as applied preemption” refers to what is more commonly known as implied preemption. See Franks Investment Co. v. Union Pacific R. Co., 593 F3d 404, 409-414 (II) (5th Cir. 2010) (enbanc); PCS Phosphate Co. v. Norfolk Southern Corp., 559 F3d 212, 217-218 (II) (A), 220-221 (II) (B) (4th Cir. 2009).

       Categorically preempted laws and actions fall into one of two categories.
      The first is any form of state or local permitting or preclearance that, by its nature, could be used to deny a railroad the ability to conduct some part of its operations or to proceed with activities that the Board has authorized. Second, there can be no state or local regulation of matters directly regulated by the Board — such as the construction, operation, and abandonment of rail lines; railroad mergers, line acquisitions, and other forms of consolidation; and railroad rates and service . Both types of categorically preempted actions by a state or local body would directly conflict with exclusive federal regulation of railroads. ... In other words, state and local laws that fall within one of the precluded categories are a per se unreasonable interference with interstate commerce.

        CSX Transp., 2005 WL 1024490 at *2-3 (1) (citations and footnotes omitted). See also Barrois, 533 F3d at 332 (III) (B). Accordingly, when deciding whether a state law or cause of action is categorically preempted, the “analysis is addressed not to the reasonableness of the particular state or local action, but rather to the act of regulation itself.” CSX Transp., 2005 WL 1024490, at *3 (1). See also Barrois, 533 F3d at 332 (III) (B).

       Indeed, all of the briefs submitted in this case by both Norfolk Southern and Fox have provided little guidance with respect to the question of preemption. Specifically, neither party’s briefs (including the supplemental briefs on preemption requested by this Court) identify or apply the relevant test for determining whether the ICCTA preempts Fox’s state law claim for inverse condemnation.

       To the extent that Norfolk Southern is arguing that Fox has asserted that the side track constitutes a permanent nuisance (i.e., a nuisance that cannot be abated), we note that a permanent nuisance can give rise to a claim for inverse condemnation. See Liberty County v. Eller, 327 Ga. App. 770, 771-772 (1) (761 SE2d 164) (2014).

       We note that given Fox’s representations to the federal district court, the Superior Court of Gordon County, and this Court as to the type of relief he is seeking, he would be judicially estopped from seeking a different type of relief on remand. Under the doctrine of judicial estoppel, a party cannot take a position, persuade a court to accept the same, and then later assert an inconsistent position. See Ga. Neurology & Rehabilitation, P.C. v. Hiller, 310 Ga. App. 202, 206(2) (a) (712 SE2d 611) (2011). See also Kamara v. Henson, 340 Ga.App. 111, 112 (1) (796 SE2d 496) (2017) (“[t]he essential function and justification of judicial estoppel is to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice”) (citation and punctuation omitted).

       We note that the “blocked crossing” cases on which the Railroad seeks to rely are not relevant to Fox’s claim for inverse condemnation. See Elam, 635 F3d at 796; Friberg v. Kansas City Southern R. Co., 267 F3d 439 (5th Cir. 2001); Burlington Northern & Santa Fe R. Co. v. Dept. of Transp., 206 P3d 261 (Or. App. 2009); City of Seattle v. Burlington Northern R. Co., 41 P3d 1169 (Wash. 2002); Canadian Nat. R. Co. v. City of Des Plaines, 2006 WL 345095 (Ill. App. 2006). Both Elam and Friberg involved claims of negligence per se based on a state “anti-blocking” statute — i.e., a law that purported “to regulate the amount of time the train [could] occupy a crossing.” Elam, 635 F3d at 801. See also Friberg, 267 F3d at 441, n. 2. Burlington Northern, City of Seattle, and Canadian National all involved a railroad’s challenge to civil penalties imposed by a governing authority for the railroad’s violation of a state regulation or municipal ordinance that sought to regulate the amount of time a train could occupy a crossing. In each case, the court found that the anti-blocking statute, ordinance, or regulation was categorically preempted because it was targeted specifically at railroad companies and sought to regulate railroad operations. Elam, 635 F3d at 804 (III) (A) (2); Friberg, 267 F3d at 443 (II); Burlington Northern, 206 P3d at 264; City of Seattle, 41 P3d at 1172; Canadian Nat., 2006 WL 345095 at *3 (1). Such laws and regulations were preempted because “[rjegulating the time the train can occupy a rail crossing impacts, in such areas as train speed, length and scheduling, the way a railroad operates its trains, with concomitant economic ramifications . . . .” Friberg, 267 F3d at 443 (II). See also Elam, 635 F3d at 807 (III) (A) (3) (anti-blocking statutes are preempted because they “directly attempt! ] to manage or govern a railroad’s decisions in the economic realm [,] and these economic effects “are not merely incidental to an otherwise valid state law”).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A17A0634.
    DANLEY v. THE STATE.
    (802 SE2d 851)
   Branch, Judge.

On appeal from his conviction for driving under the influence (DUI) and with a suspended license, Leonard Danley, Jr., argues that the evidence was insufficient and that the trial court erred in some evidentiary rulings and in requiring him to admit the elements of DUI in order to receive a charge on justification. Danley also argues that trial counsel was ineffective. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses but determine only whether, after viewing the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (emphasis omitted).

So viewed, the record shows that on the early morning of February 8, 2014, Danley had been taking shots of whiskey with a couple at their home when he walked up behind the woman and put his hands underneath her shirt, moving them from her back toward her breasts. The victim immediately demanded that Danley leave the house; when he failed to do so, the victim’s husband physically removed him. As the husband forced Danley toward Danley’s car, the victim intervened. Danley then swung at the husband but missed, and the punch landed on the victim’s face. When the victim told Danley that she was going to call the police, Danley struck her in the face a second time, got in his car, and drove away

Acting on two 911 calls from the victim’s husband, who died before trial, a captain with the Douglas County Sheriff’s Office observed a white Nissan Cube driving away from the location of the fight. The officer initiated a traffic stop, identified Danley as the driver, and observed that Danley appeared to be intoxicated. Less than one minute later, a deputy arrived to conduct a DUI investigation. The deputy noted that Danley smelled of alcohol and had slurred speech and bloodshot, watery eyes. Danley admitted to having consumed alcohol an hour earlier. With Danley’s consent, the deputy performed horizontal gaze nystagmus (HGN) and walk-and-turn tests. Danley exhibited all six clues on the HGN test, could not keep his balance during the walk-and-turn, and repeatedly put his hands in his pockets despite the deputy’s instructions not to do so. An alco-sensor breath test was also positive.

The deputy placed Danley under arrest for DUI, read him the implied consent warning, and asked for permission to test Danley’s blood, which Danley refused. The deputy ran Danley’s information and found that his driver’s license was suspended as a result of a prior DUI conviction. The deputy then obtained and executed a search warrant as to Danley’s blood, which showed a blood-alcohol concentration of 0.253, or more than three times the legal limit.

Danley was charged with sexual battery, battery, DUI per se and less safe, and driving with a suspended license. The sexual battery charge was later dropped. At trial, Danley stipulated in writing that his license had been suspended in August 2012 and not reinstated before the incidents at issue; this stipulation was read to the jury The State presented evidence including Danley’s prior DUI conviction arising from events occurring on December 31, 2011, at which time Danley showed all six clues as to an HGN test, blew a positive alco-sensor result, and refused a blood test.

After the State rested its case, Danley sought to introduce the deceased husband’s two 911 calls as well as a return call from the sheriff’s department in which police, who were pursuing Danley, asked the husband about the direction in which Danley was driving away from the scene. After the State argued that the call from the sheriff’s department to the husband took place after any emergency had come to an end, the trial court excluded this call as testimonial evidence and inadmissible hearsay. Danley then moved for a directed verdict on grounds including that the evidence was insufficient as to the battery charge and that the captain lacked probable cause to stop Danley. After explaining that Danley had waived any issue as to probable cause by failing to file a motion to suppress before trial, the trial court denied the motion for directed verdict.

A jury acquitted Danley of the battery charge but found him guilty of both counts of DUI and driving with a suspended license. The trial court merged the two DUI counts and sentenced Danley to 12 months with 150 days to serve. This appeal followed.

1. Our review of the record, including the evidence outlined above, shows that the evidence was sufficient to sustain Danley’s conviction for DUI and driving with a suspended license. See OCGA §§ 40-6-391 (a) (1), (5) (defining less safe and per se DUI), 40-5-121 (defining offense of driving while license suspended or revoked); Jackson, 443 U. S. at 319 (III) (B); Daniel v. State, 298 Ga. App. 245, 246 (1) (679 SE2d 811) (2009) (evidence including defendant’s blood-alcohol level of 0.235 shortly after an accident was sufficient to sustain less safe and per se DUI convictions).

2. Danley argues that the trial court erred when it denied his motion for a directed verdict because officers did not have probable cause to stop or arrest him. As the trial court explained, however, Danley failed to move to suppress any evidence before trial, with the result that he waived any constitutional challenge to the admissibility of that evidence. Harkleroad v. State, 317 Ga. App. 509, 512 (1) (b), n. 9 (732 SE2d 278) (2012); see also Hatcher v. State, 224 Ga. App. 747, 748-749 (1) (482 SE2d 443) (1997) (“[f]ailing to file a timely motion to suppress amounts to a waiver of even constitutional challenges”). Further, the officers had authority to stop Danley’s car on the basis of the husband’s call and to arrest him for DUI when he exhibited evidence of impairment, including smelling of alcohol, showing six of six HGN clues, and blowing a positive breath test. See Jaffray v. State, 306 Ga. App. 469, 473-474 (3) (702 SE2d 742) (2010).

3. Danley argues that the trial court erred when it excluded the call from the sheriff’s department to the victim’s husband from evidence as hearsay. We disagree.

(a) Although Danley’s trial took place in March 2016, Danley cites a single statute from the former Evidence Code, former OCGA § 24-2-4, in support of his argument that it was “unfair” to exclude the third call. As a preliminary matter, we note that a citation to a statute which was not in effect at the time of the March 2016 trial at issue does not amount to effective legal argument. See Davis v. State, 299 Ga. 180, 192 (3) (787 SE2d 221) (2016) (“Georgia lawyers do this Court no favors — and risk obtaining reversible evidence rulings from trial courts — when they fail to recognize that we are all living in a new evidence world and are required to analyze and apply the new law.”).

Danley does not argue that the admission of the sheriff’s return call was necessary to correct any “misleading” impression created by the admission of the first two calls. See United States v. Self, 414 Fed. Appx. 611, 615 (5th Cir. 2011) (when defendant had not explainedhow portions of recorded conversations were “misleading and prejudicial,” he had “failed to show that the district court abused its discretion” in admitting those portions). Further, each call was separate, such that Danley’s invocation of the rule of completeness fails. See United States v. Stevens, 778 FSupp.2d 683, 708-709 (W.D. La. 2011) (separate statements made by different defendants were not admissible under the rule of completeness absent a showing of relevance). Under the new Evidence Code, moreover, it remains for the trial court to determine whether evidence is relevant, and we review such decisions only for an abuse of discretion, as where “the trial court significantly misapplies the law.” Oliver v. State, 329 Ga. App. 377, 379 (765 SE2d 606) (2014). In this case, the trial court correctly applied the law.

(b) The husband’s death before trial raises the Confrontation Clause concerns argued below as to both the husband’s calls to 911 and the return call back from police.

In Crawford v. Washington, 541 U. S. 36, 53-54 (124 SCt 1354, 158 LE2d 177) (2004), the United States Supreme Court held that the Confrontation Clause of the Sixth Amendment bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Because only testimonial statements “cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause, it is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.”

Thomas v. State, 284 Ga. 540, 542 (2) (668 SE2d 711) (2008), quoting Davis v. Washington, 547 U. S. 813, 821 (II) (126 SCt 2266, 165 LE2d 224) (2006) (punctuation omitted). Specifically, “911 calls, or portions of 911 calls, can fall under the category of ‘testimonial statements,’ depending on a determination as to the primary purpose for the call.” State v. Gunn, 333 Ga. App. 893, 894 (777 SE2d 722) (2015). Whether the “primary purpose” of a communication between police and a victim is part of an “ongoing emergency” is a “matter [ ] of objective fact” for a trial court to resolve. Michigan v. Bryant, 562 U. S. 344, 360 (III) (A) (131 SCt 1143, 179 LE2d 93) (2011); see also Gunn, 333 Ga. App. at 895 (“whether an emergency exists and remains ongoing is a highly context-dependent inquiry”) (punctuation, footnote and emphasis omitted).

The trial court admitted the husband’s first two 911 calls on the ground that they were made during the ongoing emergency created by Danley’s attack on the victim and were thus non-testimonial and admissible, and Danley does not challenge this decision on appeal. Although Danley sought the admission of the sheriff’s return call because the husband stated in it that Danley had punched the victim unintentionally, the court excluded this call on the ground that by the time that call was placed, Danley had left the property and the emergency had ended. Accordingly, the conversation was testimonial and, as the husband was deceased at the time of trial and unavailable to testify, inadmissible hearsay

Here, the record supports both the trial court’s factual determination that by the time the third call was placed by the sheriff’s department to the victim’s husband, any “ongoing emergency” posed by Danley to the victims was over and its legal conclusion that, in light of the husband’s death, the call was hearsay and its admission would have been erroneous. See Cuyuch v. State, 284 Ga. 290, 295 (3) (667 SE2d 85) (2008) (reversing an affirmance of defendant’s conviction for aggravated battery when the jury considered testimonial and inadmissible hearsay statements as to the circumstances of the crime). Further, Danley was acquitted on the battery charge such that any possible error in excluding the third call was harmless. See Cook v. State, 256 Ga. 808, 812 (2) (353 SE2d 333) (1987) (erroneous refusal to admit evidence showing a defendant’s lack of an extravagant lifestyle was harmless when defendant was acquitted on theft by taking charges). For all these reasons, we cannot find an abuse of discretion in the trial court’s exclusion of the sheriff’s return call as inadmissible testimonial and hearsay evidence.

4. Danley also argues that the trial court erred when it admitted his December 2011 DUI conviction into evidence. We disagree.

Before trial, the State filed notice of its intent to introduce evidence of Danley’s DUI conviction arising from events occurring on December 31, 2011. At a pretrial hearing, the State proffered an officer’s testimony that Danley was pulled over in 2011 pursuant to a BOLO, smelled of alcohol, had bloodshot, watery eyes and slurred speech, admitted to drinking, and blew a positive alco-sensor result. After being placed under arrest for DUI, Danley refused a state-administered blood test. The State offered this officer’s testimony about the 2011 incident for purposes including a showing that Danley knew that drinking impaired his driving. The State also offered a certified copy of the conviction arising from these events.

OCGA § 24-4-417 (a) (Rule 417) provides in relevant part that

evidence of the commission of another [DUI] violation ... on a different, occasion by the same accused shall be admissible when: (1) The accused refused in the current case to take the state administered test required by Code Section 40-5-55 and such evidence is relevant to prove knowledge, plan, or absence of mistake or accident....

(Emphasis supplied.) As the Supreme Court of Georgia has held, evidence that a DUI defendant previously refused a state-administered blood test “ ‘shall be admissible’ ” to permit the trier of fact to infer that “a prohibited intoxicant was present to some degree” and that the defendant “knew that the test results likely would tend to show that he was, in fact, under the influence of a prohibited substance.” State v. Frost, 297 Ga. 296, 297, 305 (773 SE2d 700) (2015), quoting OCGA § 24-4-417 (a) (1) (emphasis supplied).

Here, the trial court specifically found that the State offered evidence concerning the December 2011 DUI for the valid purpose of proving Danley’s knowledge and intent, and that the probative value of the 2011 DUI was “not substantially outweighed by the danger of unfair prejudice or the confusion of issues or misleading the jury.” The trial court also found that the State had proffered sufficient evidence, in the form of both the officer’s testimony and the certified conviction, that Danley in fact committed the prior act. There was no abuse of discretion in these findings. Frost, 297 Ga. at 305-306 (no abuse of discretion in trial court’s finding that evidence of two prior DUIs was “ ‘relevant to prove knowledge’ ” and was thus admissible under Rule 417 (a) (1), and quoting that Rule); see also State v. Jones, 297 Ga. 156, 160-164 (2), (3) (773 SE2d 170) (2015) (remanding to the Court of Appeals for consideration of whether trial court’s admission of defendant’s prior DUI conviction, which was relevant to prove his intent to drive while intoxicated and his knowledge of the consequences of doing so, was an abuse of discretion under Rules 403 and 404 (b)).

5. Danley also argues that the trial court erred in forcing him to “admit guilt” to the less safe DUI charge before granting his request for a charge on justification. We disagree.

“The defense of justification is an affirmative defense, meaning that the defendant admits the act but seeks to justify, excuse, or mitigate it,” and “[t]he defendant must admit the crime before he can raise the defense.” London v. State, 289 Ga. App. 17, 19 (1) (656 SE2d 180) (2007) (footnote omitted).

Danley requested a jury charge on the affirmative defense of justification by “duress or necessity” on the ground that the wife and husband had “kept bringing him drink after drink.” Consistent with the above-quoted law, the trial court held that Danley would have to admit to the elements of less safe DUI in order to receive a charge on justification. Danley agreed, retook the stand, and admitted to the elements of less safe DUI. The trial court then charged the jury on the affirmative defense of justification by reason of coercion, and Danley made no objection to this or any other portion of the charge.

Danley has never asserted that the charge on justification was not adjusted to the evidence. Further, the trial court’s accurate statement of the law did not “force” Danley to admit to the elements of DUI; rather, Danley made an informed and strategic choice to do so as the only means of placing his justification defense before the jury For these reasons, Danley’s assertion lacks merit.

6. Although Danley asserts that his trial counsel was ineffective, the record shows that trial counsel never filed a motion for new trial and that he continues to represent Danley on this appeal.

It is highly unusual, if not unprecedented, for trial counsel to fail to file any motion for new trial, to remain as appellate counsel, and to attempt to raise his own ineffectiveness at trial for the first time on appeal. Nonetheless,

[ujnder well established Georgia law, appellant was required to raise any issue of ineffective assistance of trial counsel at the earliest practicable moment to avoid it being deemed waived. ... By “earliest practicable moment,” we mean that the ineffectiveness claim must “be raised before appeal if the opportunity to do so is available.” (Emphasis in original.) Glover v. State, 266 Ga. 183, 184 (465 SE2d 659) (1996).

Decided June 23, 2017.

Danley & Associates, Leonard Danley, Sr., for appellant.

Matthew C. Krull, Solicitor-General, Lindsay D. Raynor, Assistant Solicitor-General, for appellee.

Garland v. State, 283 Ga. 201, 202 (657 SE2d 842) (2008) (punctuation omitted; emphasis in original). Even assuming that this appeal was the earliest opportunity at which trial counsel realized and raised his own ineffectiveness, this appeal is not a practicable forum for the consideration of that claim, for two reasons: because the trial court was never given an opportunity to make any factual finding on the question of ineffectiveness, and because an “appellant’s trial counsel [cannot] reasonably be expected to assert or argue his own ineffectiveness on appeal. White v. Kelso, 261 Ga. 32 (401 SE2d 733) (1991).” Id. at 203.

An appellant’s “failure to raise the issue at all in the trial court results in no appellate consideration of the claim of ineffectiveness[.]” Wilson v. State, 277 Ga. 195, 198 (2) (586 SE2d 669) (2003). Further, Danley “does not argue or point to any facts in the record that indicate either cause for appellate counsel’s failure to raise the claim or any prejudice arising therefrom.” White, 261 Ga. at 33. This record, including Danley’s blood test result, his stipulation as to driving without a license, and his acquittal on the battery charge, makes it impossible for him to show that he was prejudiced by any alleged ineffectiveness. Id. The issue must therefore await habeas proceedings, which are “the exclusive post-appeal procedure available to a criminal defendant who asserts the denial of a constitutional right.” Mallon v. State, 266 Ga. App. 394, 398 (4) (597 SE2d 497) (2004) (citation omitted).

Judgment affirmed.

McFadden, P. J., and Bethel, J., concur.

       See OCGA § 40-6-391 (a) (“A person shall not drive or be in actual physical control of any moving vehicle while: ... (5) [t]he person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended.”).

       The State has moved to dismiss the appeal on grounds including that Danley’s brief was filed two days after the deadline for doing so, which had already been extended 29 days at Danley’s request. See Court of Appeals Rule 23 (a). The motion to dismiss is denied.

       Danley’s contention that the trial court should have granted a directed verdict as to the battery charge is mooted by the jury’s acquittal of him on that charge . Reagan v. State, 281 Ga. App. 708, 709-710 (1) (637 SE2d 113) (2006).

       Former OCGA § 24-2-4 provided that “[wjhere either party introduces part of a document or record, the opposite party may read so much of the balance as is relevant.” Although this former statute was not replaced by a specific provision in the new Evidence Code, the so-called “rule of completeness” codified at OCGA § 24-8-822 (formerly OCGA § 24-3-38) provides that “[w]hen an admission is given in evidence by one party, it shall be the right of the other party to have the whole admission and all the conversation connected therewith admitted into evidence.” See also OCGA § 24-1-106 (“When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which, in fairness, should be considered contemporaneously with the writing or recorded statement.”); Westbrook v. State, 291 Ga. 60, 62 (2) (727 SE2d 473) (2012); Morales v. State, 337 Ga. App. 614, 619 (3) (a) (788 SE2d 535) (2016).

       See OCGA § 24-4-403 (Rule 403) (“Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”).

       See, e.g., Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II (Criminal), § 3.01.10 (“The fact that a person’s conduct is justified is a defense to prosecution for any crime based on that conduct!, and] can be claimed a) when the person’s conduct is justified under OCGA§[ ] 16-3-26” (defining coercion for purposes of a defense as “such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury”)).

       In fact, Danley’s father served as his trial counsel and is serving as his appellate counsel.


author: Bethel, Judge.

text:
    A17A0189.
    WARD et al. v. DIRECTV LLC.
    (801 SE2d 110)
   Bethel, Judge.

Sharon Ward and Pshone Ward appeal the denial of their motion for summary judgment, as well as the trial court’s grant of summary judgment in favor of DirecTV LLC on the Wards’ claims seeking to recover for injury suffered by Sharon following the installation of a DirecTV satellite dish. The Wards argue that DirecTV is responsible for the negligence of its subcontractor, which installed the satellite system, because DirecTV exercised a great degree of control over the subcontractor, and because DirecTV had a nondelegable duty to ensure the satellite system was installed properly We disagree and affirm because DirecTV did not control the time and manner of work performed by its subcontractor and because the Wards failed to point to a specific statute setting forth a nondelegable duty in their appeal.

On appeal, “we review de novo a trial court’s grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party” Miller v. Turner Broadcasting System, 339 Ga. App. 638, 638 (794 SE2d 208) (2016) (citation and punctuation omitted). To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant’s favor, warrant judgment as a matter of law. OCGA § 9-11-56 (c).

Construed in favor of the Wards, the evidence shows that Sharon Ward signed up for DirecTV service through a storefront retailer on January 11, 2013. That retailer was Systems Technology Corporation, which was an authorized dealer for DirecTV The written agreement between DirecTV and Systems Technology provided that Systems Technology was an independent contractor, was responsible for the installation of DirecTV systems that Systems Technology sells, and that DirecTV would pay Systems Technology an agreed upon amount for installation. The agreement further provided that Systems Technology would provide installation services “in accordance with and consistent with the standard professional installation guidelines,” which was attached to the agreement. Systems Technology contracted with Premier Vision, LLC, to install the DirecTV satellite equipment at the Wards’ residence. However, Sharon alleged that she believed that she was ordering service directly from DirecTV and that a DirecTV representative installed her satellite cable system because the worker appeared in DirecTV branded gear. She also alleges that she activated her service directly with DirecTV.

The Wards claim that following the installation, their home was struck by lightning on or near the exterior satellite cable equipment, causing the lightning to travel through a metal doorknob that Sharon was touching, resulting in her injury. Two days later, an employee from MasTec North America, Inc., d/b/a Advanced Technologies (“MasTec”) inspected and repaired the damage to the satellite equipment caused by the lightning and discovered that the system had not been grounded. The Wards filed suit against DirecTV and MasTec, but did not state any claims against Systems Technology or Premier Vision. The Wards moved for summary judgment on DirecTV’s defense that it was not liable for the actions of its subcontractor and on their claim that the violations of state and local codes associated with the installation of the satellite system were negligence per se. The trial court denied that motion. DirecTV filed a cross-motion for summary judgment, which the trial court granted following a hearing.

The Wards argue on appeal that the trial court erred in granting summary judgment in favor of DirecTV because the proper and safe installation of the satellite dish system was a nondelegable statutory duty, and because DirecTV exercised a great degree of control over its subcontractor that installed the dish system. We disagree.

1. The Wards concede that, generally, employers are not responsible for torts committed by independent contractors, but argue that DirecTV exercised a great degree of control over the subcontractor, such that it was not an independent contractor. Workers who operate independent businesses and are not subject to the immediate direction and control of those who hired them are independent contractors. SeeOCGA § 51-2-4. To determine whether a person is an employee or an independent contractor, the test

is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work. The right to control the manner and method means the right to tell the employee how he shall go about doing the job in every detail, including what tools he shall use and what procedures he shall follow.

Royal v. Ga. Farm Bureau Mut. Ins. Co., 333 Ga. App. 881, 883 (777 SE2d 713) (2015) (quoting RBF Holding Co. v. Williamson, 260 Ga. 526 (397 SE2d 440) (1990)) (punctuation omitted). “The right to control the time of doing the job means the right to control the hours of work.” RBF Holding Co., 260 Ga. at 526 (punctuation omitted). Moreover, “[wjhere the contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed such control.” Ledbetter v. Delight Wholesale Co., 191 Ga. App. 64, 66 (1) (380 SE2d 736) (1989) (citation and punctuation omitted). This control over the time, place, and manner of work is distinguishable from “the right merely to require certain definite results in conformity with the contract[.]” Webb v. Wright, 103 Ga. App. 776, 779 (1) (120 SE2d 806) (1961).

The written agreement between DirecTV and Systems Technology specifically classifies the latter’s status as an “independent contractor.” Thus, to overcome the presumption that Systems Technology — and by extension, Premier Vision, which installed the dish system — are independent contractors, the Wards must point to some evidence showing DirecTV controlled the time, manner, method, and means of the installation work. See Royal, 333 Ga. App. at 883. To this end, the Wards direct us to the contract between DirecTV and Systems Technology and the Installation Manual provided by DirecTV to Systems Technology In particular, the Wards argue that the Installation Manual dictates the clothing and identification badge to be worn by the installer, customer contact requirements, and installation instructions for the dish system. The Installation Manual states that all contractors — including those working for a DirecTV sales agent — are required to follow the procedures and standards found therein and to obtain written approval for any variation.

However, the Installation Manual does not demonstrate that DirecTV had the right to control the time of installations by the subcontractor, Premier Vision. Nor is the fact that the installer displayed a DirecTV logo on his or her attire and/or vehicle, alone, sufficient to transform Premier Vision’s status as an independent contractor. See Lopez v. El Palmar Taxi, Inc., 297 Ga. App. 121, 124 (2) (676 SE2d 460) (2009) (mere fact that taxi driver displayed logo and accepted fares from the taxi company with whom he had contracted as an “independent contractor” not sufficient to transform relationship). Thus, we are left to consider whether the Installation Manual merely provides guidelines for obtaining particular results or if it demonstrates a greater degree of control over the manner of work being performed by the installer. See McKee Foods Corp. v. Lawrence, 310 Ga. App. 122, 125 (712 SE2d 79) (2011) (contractual provisions regarding storage of products, insurance requirements, distributor’s territory and use of trademarks, and right to determine whether distributor is maintaining satisfactory sales constitute broad guidelines rather than exercise of control over day-to-day operations). While it is true the Installation Manual contains instructions on how to perform various types of installations, ultimately it is the installer who decides which approach is best suited to the needs of each residence. The Installation Manual provides certain specifications with which the installer must comply, but these guidelines simply serve “as a means of ensuring conformance with a certain level of quality and protecting [DirecTV’s] professional reputation.” McKee Foods, 310 Ga. App. at 126 (citation and punctuation omitted). Therefore, under the facts before us, we cannot say that the trial court erred in its ruling that DirecTV lacked the right to direct or control the time and manner of the installation of the satellite system. See Perry v. Ga. Power Co., 278 Ga. App. 759, 761 (1) (629 SE2d 588) (2006).

2. The Wards next argue that the trial court erred in granting summary judgment in favor of DirecTV because the proper and safe installation of the satellite dish system was a nondelegable statutory duty. The Wards rely on an exception to the general rule that the entity employing the independent contractor is liable for the wrongful act of the contractor “[i]f the wrongful act is the violation of a duty imposed by statute.” See OCGA § 51-2-5 (4). “The exception applies only where the independent contractor has breached the statutory duty of the person employing the independent contractor.” Benson-Jones v. Sysco Food Svcs. of Atlanta, 287 Ga. App. 579, 583 (2) (651 SE2d 839) (2007) (citation omitted).

To support their argument, the Wards point to the Installation Manual, which provides that the “system must be grounded to meet Local/NEC [National Electric Code] requirements.” The Wards also argue that OCGA § 43-14-6 requires “electrical appliances” to be installed by licensed electricians, and that the satellite system qualifies as an electrical appliance. But no such requirement appears in OCGA § 43-14-6. Nor do the Wards point to any specific provision within the National Electric Code or local code setting forth some nondelegable duty in their appeal. Accordingly, the trial court did not err in granting summary judgment to DirecTV. See Benson-Jones, 287 Ga. App. at 584 (2).

Decided June 1, 2017

Reconsideration denied June 27, 2017.

Douglas R. Daum, for appellants.

Brown & Adams, Clayton M. Adams, Benjamin W. Wallace, for appellee.

Judgment affirmed.

McFadden, P. J., and Branch, J., concur.

       No contract between Systems Technology and Premier Vision appears in the record before this Court.

       Mastec was dismissed from the litigation.

       We note that the Wards did not advance a theory of recovery based on apparent agency, and therefore we decline to analyze whether such a theory could have prevailed under these facts.

       See OCGA § 51-2-4.

       The Installation Manual states that the installers “should wear DirecTV branded shirts and hats,” that all vehicles should have proper identifiable signage, and that the installer should have an identification card showing him or her to be a DirecTV representative.

       The Installation Manual provides that each customer “must” receive two calls from the installer within a certain window prior to installation, and provides that the installer should arrive at the customer’s residence “within the designated window of time wearing prior ID and uniform.”

       The Installation Manual contains detailed instructions and guidelines for installation of the dish system, including grounding requirements.