The descendants of judge John Heard have suffered a setback in their attempt to regain control of their family’s historic cemetery.

According to a copy of the decision forwarded to Reporter Newspapers, Fulton County Superior Judge Kimberly Adams on Oct. 8 ruled that there are “genuine issues of material fact” that must be resolved before the descendants can regain control of the property.

Reporter Newspapers is reviewing the order and will post additional updates on what it means going forward.

The order stems from a May court hearing on the case involving plaintiff Christopher Mills, who is the current owner of the property. Mills is not a Heard descendant.  Mills sued the city of Sandy Springs in 2012 after city officials denied his application to build a house on the property.

Reporter Newspapers sent Mills’ attorney an email seeking comment about the ruling.

Wright Mitchell, attorney for the descendants, said the group is seeking an appeal.

“We’re certainly disappointed with the ruling and we hope that we’ll be able to appeal it to the Georgia Court of Appeals,” Mitchell said.

Preston Heard, a descendant, emailed other family members with news about the judge’s order.

“The order is based on what we believe to be an incorrect legal premise – that the heirs could somehow abandon just a portion of the property,” Heard wrote. “In reality, the current legal authority is simply not clear on this issue, which is why it warrants review by the Court of Appeals.  If the appeals court agrees to take up the issue, we will obtain the legal clarity needed to move forward.  If it turns out that, as we argue, the heirs could not and have not abandoned a portion of the cemetery property, then Judge Adams’ order cannot stand.”

Another Heard descendant, Mary Ann Elsner sold her rights to the property in 2007 to Mills’ in-laws, Henry and Wanda Cline. The Clines bought the property with the intention of preserving it but those plans never materialized. They eventually sold it to Mills for $1.

After Mills filed the lawsuit, Heard’s descendants intervened and asked the judge to give the property back to them. Judge Heard is one of the community’s original founders and a Confederate veteran.

For more on the May hearing, click here.

Dan Whisenhunt

Dan Whisenhunt wrote for Reporter Newspapers from 2011 - 2014. He is the founder and editor of Decaturish.com