C. J., MILLER, P. J, and REESE, J.
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
bench trial on the claims for injunctions and a declaratory
judgment,  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.
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.
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
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.
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.
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
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. 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
No express easement.
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. 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. To the extent that the Owens cite
Hernandez v. Whittemore 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. 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.
No easement ...