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

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                      June 2, 2017




In the Court of Appeals of Georgia
 A17A0009. DENAPOLI et al v. OWEN et al.                                     DO-001

      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


      1
          The remaining claims are pending in the trial court.

                                           2
      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




      2
      (Punctuation omitted.) Central Mtg. Co. v. Humphrey, 328 Ga. App. 474, 475
(759 SE2d 896) (2014), quoting Champion Windows of Chattanooga, LLC v.
Edwards, 326 Ga. App. 232, 233 (756 SE2d 314) (2014).
      3
          Lot 1 was sold to a third party prior to the DeNapolis’ purchase of Lot 2.

                                           3
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.


      4
         There is a mention of utility, common water system, and road system
covenants that the Owens had created in the early 1980s; however, there is no
contention that these serve as the basis for the driveway at issue, and indeed,
testimony at the hearing showed that the Owens had not incorporated by construction
Lots 1, 2, or 3 into the common water and road systems at issue in those covenants
prior to their sale.
      5
        See Court of Appeals Rule 27 (a) (“Supplemental briefs may be filed only by
leave of the Court.”).
      6
        For the sake of clarity, rather than addressing the DeNapolis’ enumerations
of error individually and in the order presented, we instead address the overarching
complaint on appeal—that the trial court erred by finding the existence of an

                                          4
                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. Whittemore10 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




easement.
      7
          OCGA § 44-9-1.
      8
          See Deas v. Hughes, 264 Ga. 9, 10-11 (1) (440 SE2d 458) (1994).
      9
          See id. at 11 (3).
      10
           287 Ga. App. 251 (651 SE2d 180) (2007).

                                          5
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 by implication. Although the trial court did not make a written

finding that an easement by implication was created at the time that the Owens sold

Lot 2 to the DeNapolis, in its oral ruling the trial court discussed the landlocked status

of Lot 3 as a reason the court would have ruled in favor of the Owens had he not

found that they expressly created the easement. There could be no easement by

implication at the time of the sale to the DeNapolis, however, as explained in Bruno

v. Evans12:

      The right of private way over another’s land may arise by implication of
      law when the right is necessary to the enjoyment of lands granted by the
      same owner. Thus, a way of necessity arises in this State by implication


      11
         See id. at 253 (“The present-tense phrase that the strip of land on the plat is
being created for the sole purpose of providing access evinces an intent to create an
easement at that time; the plat lacks any other language implying some contemplated
future action intended to grant the easement for access. Accordingly, this language
sufficiently evinces the grantor’s intent to create an express grant of an easement by
recording the plat.”).
      12
           200 Ga. App. 437 (408 SE2d 458) (1991).

                                            6
      of law under . . . OCGA § 44-9-1 when the common owner sells the
      dominant estate first and retains the servient estate. The common owner
      is impliedly deemed to have granted an easement to pass over the
      servient estate. However, if the common owner sells the servient estate
      first as happened in this case, he has deeded everything within his power
      to deed and retains no easement in the servient estate. Therefore, when
      the common grantor subsequently deeds the dominant estate to a third
      party, the third party can obtain no higher interest than that of the
      grantor and receives no easement over the servient estate. Accordingly,
      no easement by implication was created in this case.


      Assuming arguendo, sequence of conveyance was not controlling in
      those instances where easement is created by implied reservation due to
      necessity, the result in this case remains the same. In these cases, a
      private way by implication is based on necessity and not convenience.
      Moreover, a reasonable necessity for a way must exist at the time of the
      severance to support the implication of a way of necessity. The record
      fails to establish the actual existence of such necessity at the time of the
      severance of the property by the common grantor.13


      At the time that the DeNapolis purchased Lot 2 from the Owens, the Owens

retained Lot 3, abutting additional property owned by the Owens through which they

maintained access to the public road. Because the Owens failed to expressly retain an

easement over Lot 2 and because no way of necessity existed at the time of the sale

      13
           (Citations and punctuation omitted.) Id. at 440-441 (3) (b).

                                            7
to the DeNapolis, there was no easement by implication.14 Accordingly, the trial

court’s order is reversed.

      3. Finally, the Owens filed a motion to dismiss and an amended motion to

dismiss the appeal as moot because of the subsequent sale by them of Lot 3 to a third

party. The sale, however, does not moot the issue of whether the Owens created an

easement over Lot 2 prior to selling to the DeNapolis, nor does it moot the pending

claims in the trial court below. Accordingly, the motion to dismiss and amended

motion to dismiss are hereby denied.

      Judgment reversed. Miller, P. J. and Reese, J., concur.




      14
           See id.

                                         8
