                               FIFTH DIVISION
                              MCFADDEN, P. J.,
                          RICKMAN and MARKLE, JJ.

                   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


                                                                     March 5, 2019




In the Court of Appeals of Georgia
 A18A1598. EMSON INVESTMENT PROPERTIES, LLC v. JHJ
     JODECO 65, LLC et al.

      MARKLE, Judge.

      In April 2014, JHJ Jodeco 65, LLC, and RCB Jodeco 35, LLC (collectively,

“JHJ”) bought a parcel of land that adjoins parcels owned by Emson Investment

Properties, LLC (“Emson”) in the Jodeco Road Village commercial development

(“the development”). After Emson blocked access to a section of the parking lot, JHJ

sued for declaratory judgment and injunctive relief, asserting rights to quasi-

easements and implied easements across Emson’s property for use of the common

infrastructure of the development, including additional parking spaces, access for

ingress and egress, and the water, sewer and storm water management systems.

Following a bench trial, the trial court entered final judgment in JHJ’s favor.
      Emson now appeals, arguing that the trial court erred because (i) JHJ was not

entitled to quasi-easements and implied easements as a matter of law; (ii) even if JHJ

was so entitled, Emson was a bona fide purchaser for value, and thus took title to its

property free and clear of such claims; and (iii) JHJ was not entitled to equitable

relief. For the reasons set forth below, we agree and reverse the trial court’s judgment.

      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.

(Citation and punctuation omitted.) Denapoli v. Owen, 341 Ga. App. 517, 518 (801

SE2d 314) (2017).

      Viewed in this light, the record reveals that in 2003, Gadson Woodall, as

principal of Charrette Development Group, LLC (“CDG”), began assembling the

individually owned parcels, in excess of eleven acres of land in total, that would

become the development. In March 2005, CDG purchased the initial tract of land,

comprising approximately seven acres fronting Jodeco Road in Henry County. This

portion of the property, referred to as the “Miller tract,” encompassed the front parcel

on which retail buildings A and B were built, now owned by JHJ. The Miller tract


                                           2
also included the rear parcel, as well as the land where retail building C would be

built, both parcels now owned by Emson. The same day that CDG acquired the Miller

tract, it conveyed title to the rear parcel, as well as the land eventually occupied by

building C, to Jodeco Road Investments, LLC (“JRI”), another of Woodall’s

corporate entities.1 Woodall testified that title to the development was divided among

separate corporate entities2 because he could not obtain a single source of financing

for construction.

      To complete the footprint of the development, in April 2005, CDG purchased

the side tract, or the “Hulsey-Dukes-Cates tract,” an assemblage of five separate tracts

comprising approximately four acres. Emson now owns this tract.

      Woodall testified that Henry County approved JRI’s rezoning request for a

single development with a common infrastructure, to be shared by the entire

development. However, it is undisputed that no cross-easements, covenants, or

restrictions regarding common use of the infrastructure were ever recorded.




      1
     Woodall testified that he was 50 percent owner of JRI and the sole owner of
CDG. Don Henry owned the other 50 percent of JRI.
      2
      At one point, there were at least four different but interrelated corporate
owners of individual tracts in the development.

                                              3
        With the initial loan secured by security deed on a portion of the property,

construction began on buildings A and B on the front parcel in 2005. The rear parcel

was also developed in this phase, including the detention pond, water and sewer lines,

and other utility lines. Due to the high cost of the infrastructure improvements, CDG

required additional financing to finish the interiors of buildings A and B, and it

obtained another loan from yet a different lender secured by security deed on other

tracts within the development. This pattern of dividing up the development property

for financing purposes and obtaining loans from different lenders continued until no

further financing could be secured. One by one, the loans went into default and, by

2009, all of the parcels secured under the loans were individually foreclosed and sold

off.3

        At an auction in June 2011, Emson purchased the tract where retail buildings

C and D are located. Because there was inadequate parking for the retail buildings,

Emson next purchased the side tract in July 2011. And in December 2011, Emson

purchased the rear parcel of the development. In February 2013, in a separate action



        3
       In October 2010, another of Woodall’s corporate entities, Charrette Holdings,
LLC reacquired title to buildings A and B on the front parcel. However, the loan
secured on the property went into default, and the front parcel was again foreclosed
on in November 2012.

                                             4
not before this Court, Hamilton State Bank, the owner of the front parcel at the time,

brought suit against Emson asserting claims for access to Emson’s property for

parking.4

      In April 2014, JHJ purchased the front parcel from Hamilton State Bank,

despite its principal, John Hardy Jones, being aware of the pending litigation with

Emson and the inadequate parking situation. . Relying only on zoning records, Jones

assumed that the parking lot in the rear parcel, which Emson owns, was burdened to

accommodate additional parking for the businesses in retail buildings A and B on the

front parcel. Months after JHJ purchased the front parcel, Emson installed a gate

impeding access to the rear parcel and the parking area.

      JHJ brought suit, seeking a declaration that it was entitled to quasi-easements

and implied easements across Emson’s property for use of the common infrastructure,

including additional parking spaces, access for ingress and egress, and the water,

sewer and storm water management systems. Emson answered and brought

counterclaims for ejectment, trespass, nuisance, attorney fees and punitive damages.5


      4
       Hamilton State Bank’s action against Emson was still pending at the time of
the bench trial in this suit.
      5
        The counterclaims for ejectment and nuisance do not appear in the pleadings,
but are raised in the pre-trial order.

                                             5
The parties agreed to bifurcate the proceedings with JHJ’s claims to be resolved by

bench trial, and Emson’s remaining counterclaims to be heard by a jury. Following

a bench trial on JHJ’s claims, the trial court found that JHJ had quasi-easements and

implied easement across Emson’s property, and issued declarations and permanent

injunctions in JHJ’s favor. This appeal followed.

      1. As an initial matter, JHJ argues that this appeal is premature and subject to

dismissal because Emson’s counterclaims remain pending below. We disagree.

Declaratory judgments, such as the trial court’s judgment here, “shall have the force

and effect of a final judgment or decree and be reviewable as such.” OCGA § 9-4-2

(a). Regardless of whether the trial court’s judgment resolved all of Emson’s

counterclaims, the trial court’s order is directly appealable pursuant to the Declaratory

Judgment Act. OCGA § 9-4-1 (a); Bldg. Block Enterprises, LLC v. State Bank &

Trust Co., 314 Ga. App. 147, 150 (1) (723 SE2d 467) (2012) (declaratory judgments

are directly appealable “even if other issues remain pending below.”); see also OCGA

§ 5-6-34 (a) (1). As such, this appeal is properly before us.




                                               6
      2. Emson argues that the trial court erred in concluding that JHJ was entitled

to quasi-easement rights for water, sanitary sewer, and storm water services beneath

Emson’s property.6 We agree.

      A quasi-easement arises when the owner of an entire tract uses one part
      of the tract for the benefit of another and thereafter the tract is divided
      so that the benefited parcel, quasi-dominant estate, is separated from the
      burdened parcel, quasi-servient estate. If the quasi-dominant estate
      receives a benefit that is apparent, continuous, permanent in nature, and
      is necessary and beneficial to the enjoyment of the quasi-dominant
      estate, then an easement is implied from the prior use.

Rowland v. Woods, 259 Ga. 832, 833 (1) (388 SE2d 684) (1990). Put another way,

a quasi-easement “requires proof that before the conveyance or transfer severing the

unity of title, the common owner used part of the united parcel for the benefit of

another part, and this use was apparent and obvious, continuous, and permanent.”

(Citation and punctuation omitted.) De Castro v. Durrell, 295 Ga. App. 194, 198 (1)

(671 SE2d 244) (2008). Thus, to claim quasi-easements to the development’s


      6
        The proposed Order presented by JHJ and entered by the trial court appears
to conflate quasi-easements and implied easements. Although our case law has treated
quasi-easements as a category of implied easement, we have been reluctant to extend
the concept of a quasi-easement beyond “instances where an implied easement is
necessary to provide water or other essential services to one parcel of property after
partition of the tract by the developer or other common owner.” (Footnote omitted.)
De Castro v. Durrell, 295 Ga. App. 194, 199 (1) (671 SE2d 244) (2008). Thus, it is
unlikely that a quasi-easement would pertain to parking area access or to ingress and
egress in general.

                                              7
infrastructure, JHJ must first show there was unity of title, i.e., the development had

a single, common owner. See Rowland, 259 Ga. at 833 (1); De Castro, 295 Ga. App.

at 198 (1).

      But JHJ has not met its burden on this record. Woodall testified that the

development was an assemblage of individual parcels acquired by CDG. Notably,

prior to CDG’s acquisition of the Hulsey-Dukes-Cates tract, CDG transferred title to

the rear parcel, as well as the land eventually occupied by building C, to JRI.

Although Woodall was the sole owner of CDG and 50 percent owner of JRI,

“corporations are separate legal entities from their shareholders, officers, directors,

and employees. . . . This is so even in the situation in which a corporation is owned

solely by one person.” Dept. of Transp. v. McMeans, 294 Ga. 436, 437 (754 SE2d 61)

(2014). Therefore, we cannot construe unity of title from the chain of conveyances

here; rather, we conclude there was no common owner of the entire development

from the outset.7 And, for this reason, JHJ cannot establish quasi-easement rights to


      7
        To the extent the trial court based its finding of unity of title on Emson’s
admission in its initial pleading that the entire property was owned by a single entity,
this basis was in error. Pursuant to OCGA 9-11-15 (b), “at trial the pleadings are
deemed automatically amended to conform to the evidence.” Zambetti v. Cheeley
Investments, L.P., 343 Ga. App. 637, 642 (1) (a) (808 SE2d 41) (2017). As set forth
above, the trial court’s finding of unity of title is not supported by the evidence of
record.

                                              8
the remainder of the development. The trial court’s finding to the contrary was in

error.

         3. Emson next argues that the trial court erred in finding that JHJ was entitled

to implied easements over and across Emson’s property because JHJ’s property is not

landlocked, and there is no necessity nor unity of title. We agree.

         “An implied easement may arise when the right is necessary to the enjoyment

of lands granted by the same owner.” (Citation and punctuation omitted.) Eardley v.

McGreevy, 279 Ga. 562, 563 (1) (615 SE2d 744) (2005); OCGA § 44-9-1. “However,

grants by implication are not favored.” (Citation and punctuation omitted.) Albenberg

v. Szalay, 332 Ga. App. 665, 668 (4) (774 SE2d 730) (2015). And “an implied

easement of necessity . . . never exists where [an entity] can get to [its] own property

through [its] own land, however inconvenient the way to [its] own land may be.”

(Citation omitted.) Id. at 669 (4).

         Thus, for an implied easement to exist, (1) the dominant estate must be

landlocked, (2) the easement must be necessary, and (3) the servient and dominant

estates must have previously comprised a single parcel under the same owner. See

generally OCGA § 44-9-1; Eardley, 279 Ga. at 563 (1); Albenberg, 332 Ga. App. at

669 (4).


                                                9
      Here, it is undisputed that JHJ’s property is not landlocked, but fronts along

Jodeco Road. Accordingly, any claim for an implied easement fails.8 Moreover, as

addressed in Division 2, supra, there was no unity of title to the development. For

these reasons, we conclude that JHJ was not entitled to implied easements over

Emson’s property, and the trial court erred in so finding.

      4. Because JHJ was not entitled to implied and quasi-easements, we do not

reach Emson’s argument that it was a bona fide purchaser for value without notice of

such rights.

      5. Finally, Emson argues that the rules of equity preclude the relief granted to

JHJ by the trial court. We agree.

      In Division 2 and 3 of this opinion, we found that JHJ has no easements to

Emson’s property as a matter of law. “[T]he first maxim of equity is that equity

follows the law. . . . Where rights are defined and established by existing legal


      8
        Appellees rely on Reece v. Smith, 265 Ga. App. 497 (594 SE2d 654) (2004),
in support of their argument that they have implied easements both above ground and
underground, such as to the sewer and waterlines. We find their reliance misplaced.
In Reece, unlike here, we first found that there were implied easements granting
ingress and egress across a servient estate where the dominant estates were
landlocked, and then held that those easements “included the right to install within
the path of the easement underground utilities necessary to the enjoyment of the land
as a place of residence.” (Emphasis supplied.) Reece, 265 Ga. App. at 500.


                                         10
principles, they may not be changed or unsettled in equity.” (Citation omitted.)

Hopkins v. Virginia Highland Assocs., L.P., 247 Ga. App. 243, 249 (1) (541 SE2d

386) (2000). Here, in addition to issuing declaratory judgments, the trial court issued

permanent injunctions that included granting access to JHJ over Emson’s property for

parking and deliveries, as well as rights to the stormwater and sewer systems.

However, because the court’s declarations were in error, and JHJ has no legal right

of access to Emson’s property, there is no basis for the scope of the injunctive relief.

Accordingly, we reverse the trial court’s judgment.

      Judgment reversed. McFadden, P. J., and Rickman, J., concur.




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