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Denapoli v. Owen

Court of Appeals of Georgia, Second Division

June 2, 2017

DENAPOLI et al
v.
OWEN et al.

          DOYLE, C. J., MILLER, P. J, and REESE, J.

          Doyle, Chief Judge.

         Anthony and Tina DeNapoli purchased 1.97 acres ("Lot 2") from Kenneth and Kathy Owen, who also owned various other parcels around Lot 2. After the sale, the Owens began construction of a driveway across Lot 2 toward an abutting parcel the Owens still owned ("Lot 3"), clearing a 20-foot-wide swath of trees and brush off of the DeNapolis' property. The DeNapolis subsequently filed suit against the Owens and their company, Custom Log Homes, requesting temporary and permanent injunctions to halt construction of the driveway, alleging claims of trespass and fraudulent misrepresentation, and asking for attorney fees and punitive damages. The Owens answered and alleged counterclaims of trespass and tortious interference with property rights and requested a declaratory judgment, reformation of the warranty deed, and interlocutory and permanent injunctions.

         After a bench trial on the claims for injunctions and a declaratory judgment, [1] the trial court denied the DeNapolis' request for injunctions and granted the Owens' claims for declaratory judgment and interlocutory and permanent injunctions, finding that the DeNapolis purchased title to Lot 2 subject to a 20-foot easement in favor of Lot 3 pursuant to the legal principles of "notice and caveat emptor." The DeNapolis appeal, arguing that the trial court erred by finding that the Owens had an easement across Lot 2 because (1) the inclusion of "proposed 20' easement" in the plat for Lot 2 was not sufficient to create an easement; (2) caveat emptor is not applicable to the situation; (3) any protective covenants in the subdivision plat did not create an easement in favor of Lot 3 for a driveway across Lot 2; (4) the merger doctrine extinguished any of the Owens' easement rights; and (5) any remaining rights that were not extinguished by the merger doctrine passed to the DeNapolis at the time of purchase. For the reasons that follow, we reverse.

On an appeal from an entry of judgment following a bench trial, we apply a de novo standard of review to any questions of law decided by the trial court, but will defer to any factual findings made by that court if there is any evidence to sustain them. [Nevertheless], if the trial court makes a finding of fact which is unsupported by the record, that finding cannot be upheld[, ] and any judgment based upon such a finding must be reversed.[2]

         Viewed in this light, the record reveals that the Owens purchased approximately 103 acres off Big Creek Road in Fannin County, from which parcel they subdivided three lots for resale. Two lots were along the public road (Lots 1 and 2) and sit between the road and Lot 3. To the west of Lots 1 and Lot 3 lies a portion of the original parcel still owned by the Owens. Lot 2 lies to the east of Lot 1.[3]

         In the plats for Lots 2 and Lot 3, an area along the western edge of Lot 2 is marked as a proposed 20-foot easement. In May 2015, the DeNapolis purchased Lot 2 from the Owens. At no point in any of the documents of sale or in the deed from the Owens to the DeNapolis is there an express reservation of a 20-foot access easement across Lot 2 for the benefit of Lot 3.[4] After the DeNapolis' closed, they visited the house in June to find that a large swath of trees had been cut and land had been bulldozed across their property running north toward Lot 3 from the main road.

         At the end of the trial, the court found in favor of the Owens as to the issues of declaratory judgment and injunctive relief, finding that the DeNapolis were on notice and should have investigated more thoroughly whether an easement existed.

         1.As an initial matter, the Owens have filed a supplemental brief without first obtaining leave to file from this Court. Accordingly, the information contained in that document has not been considered for purposes of this appeal.[5]

         2.The DeNapolis argue that the trial court erred by finding that the Owens retained a 20-foot easement for the benefit of Lot 3 across Lot 2.[6] We agree.

The right of private way over another's land may arise from an express grant, from prescription by seven years' uninterrupted use through improved lands or by [twenty] years' use through wild lands, by implication of law when the right is necessary to the enjoyment of lands granted by the same owner, or by compulsory purchase and sale through the superior court in the manner prescribed by Article 3 of this chapter.[7]

         (a) No express easement.

         At the time of the conveyance to the DeNapolis, the Owens failed to retain an easement over Lot 2. First, the deed contains no express creation of an easement.[8] Second, to the extent that the survey contains a demarcation noted as "proposed 20' easement, " without expressly reserving a right to that interest, the proposal remains an unenforceable hope or suggestion.[9] To the extent that the Owens cite Hernandez v. Whittemore[10] in support of their contention that the plats for Lots 2 and 3 show that the easement was reserved, their argument fails because in Hernandez, the common grantor specifically recorded the lot at issue as being an access lot for the benefit of adjacent lots and not for building.[11] Here, in contrast, the plats for both Lots 2 and 3 contain the modifier "proposed" and never go so far as to expressly reserve the easement. Finally, nothing in the subdivision documents from the early 1980s appears to create an access easement over that portion of the property.

         b. No easement ...


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