Brown v. Sapp

• Decision Date: 16 May 2023
• Docket Number: A23A0505,A23A0533
• Parties: BROWN v. SAPP; and vice versa.
• Court: Georgia Court of Appeals

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BROWN v. SAPP; and vice versa.

Nos. A23A0505, A23A0533

Court of Appeals of Georgia, Fourth Division

May 16, 2023

RICKMAN, C. J., DILLARD, P. J., and PIPKIN, J.

RICKMAN, CHIEF JUDGE.

These cross-appeals arise from a lawsuit filed by W. Baxter Brown to enforce an express easement that runs through property owned by Charles Johnny Sapp. This is the second appearance in this Court of this case. In Brown v. Sapp, 351 Ga.App. 352 (829 S.E.2d 169) (2019), this Court reversed the trial court's denial of summary judgment to Brown on the issue of whether he had abandoned the easement. Id. at 354 (1). We otherwise affirmed the trial court's order denying summary judgment to Brown and Sapp. Id. at 354 (2)-(3). Following remittitur, the trial court held a bench trial. On appeal in Case No. A23A0505, Brown contends that the trial court erred by concluding that he was not entitled to damages, injunctive relief, or attorney fees. In Case No. A23A0533, Sapp argues that the trial court erred by failing to find that the easement had been abandoned and by not applying the doctrine of laches. For the following reasons, we affirm in both cases.

On appeal from a bench trial, we view the evidence in the light most favorable to the trial court's rulings. See Gibson v. Gibson, 301 Ga. 622, 624 (801 S.E.2d 40) (2017). So viewed, the record shows that Brown purchased property on the bank of Muckalee Creek in 1972. The warranty deed included the conveyance of an easement which originated in 1947. The easement, which is on Sapp's property, is described as "a strip of land approximately sixteen (16) feet in width . . . located on the South side of the tract . . and then proceed[ing] North along the East side of said tract . . . for ingress and [e]gress for vehicular traffic[.]" Sapp received his property in 1967 "subject to easements of record." Shortly after Sapp received his property, he had what is now known as "Sapp Road" constructed primarily on the northern portion of his property. Brown has used Sapp Road to access his property since he purchased it in 1972. The original location of the easement is undeveloped and not maintained.

In 2015, Brown sued Sapp, seeking, inter alia, to have Sapp "rebuild" the easement at its original location. Brown also sought damages, injunctive relief, and attorney fees.

After this Court reversed the trial court's denial of summary judgment to Brown on the issue of whether he had abandoned the easement, see Brown, 351 Ga.App. at 354 (1), the trial court issued an order granting Brown summary judgment on the abandonment issue and found as a matter of law that the easement had not been abandoned. Following a bench trial the trial court found that the easement had been relocated when Sapp built Sapp Road. The trial court held that Sapp was not under any duty to "rebuild" the easement in its original location or pay damages. The trial court also denied Brown's requests for injunctive relief and attorney fees. Because this Court had already decided the issue, the trial court declined to address Sapp's contention that the easement had been abandoned. In addition, the trial court held that Sapp had waived the defense of laches. These appeals followed.

"In the appellate review of a bench trial, we will not set aside the trial court's factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses. But when a question of law is at issue, we review the trial court's decision de novo." (Citation and punctuation omitted.) Spruell v. Spruell, 356 Ga.App. 722, 724 (848 S.E.2d 896) (2020).

Case No. A23A0505

1. Brown argues that the trial court incorrectly found that Brown provided implied consent to the relocation of the easement and, as a result, erroneously concluded that damages were not appropriate. We disagree.

"[A]n easement with a fixed location cannot be substantially changed or relocated without the express or implied consent of the owners of both the servient estate and the dominant estate, absent reservations contained in the instrument creating the easement." Herren v. Pettengill 273 Ga. 122, 123 (2) (538 S.E.2d 735) (2000). Whether an easement has been relocated with the consent of the owners of the servient estate and the dominant estate is a question of fact for the trier of fact. See R.C. Acres, Inc. v. Cambridge Faire Properties, LLC, 331 Ga.App. 762, 766 (1) (771 S.E.2d 444) (2015) (whether an easement was relocated by the agreement of the parties to several different routes during the period in question was a question of fact for the jury). Here, based on evidence presented at the bench trial, the trial court found that "Brown and/or his predecessor in title . . . consented by implication to the relocation of the express easement[.]" Because there is no transcript of the bench trial, we assume that the evidence presented at the bench trial supports this finding by the trial court. See Jones v. State, 226 Ga.App. 608, 608 (487 S.E.2d 89) (1997) ("It is well-settled law that without a transcript to review, this [C]ourt must assume as a matter of law that the evidence at trial supported the court's findings.") (citation and punctuation omitted). Consequently, Brown has not shown that the trial court erred in concluding that Sapp is not obligated to pay damages to Brown.

2. Brown also contends that the trial court incorrectly held that he was not entitled to injunctive relief. Again, we disagree.

Brown sought an injunction precluding Sapp from interfering with Brown's use and development of the easement in its original location. The trial court denied Brown's claim for injunctive relief on the grounds that Brown and/or his...