Doxey v. Crissey

• Decision Date: 10 June 2021
• Docket Number: A21A0203
• Court: Georgia Court of Appeals
• Parties: DOXEY v. CRISSEY et al.

359 Ga.App. 695

859 S.E.2d 849

DOXEY

v.CRISSEY et al.

A21A0203

Court of Appeals of Georgia.

June 10, 2021

Dupree Kimbrough Carl & Riley, Hylton B. Dupree Jr., Blake Robert Carl, Marietta, for Appellant.

Gregory Doyle Calhoun & Rogers, Robert Lee Beard Jr., Richard W. Calhoun, Marietta, for Appellee.

Phipps, Senior Appellate Judge.

This is the second appearance of this case arising out of an easement dispute between Carolyn Allen Doxey, the owner of Lots 27 and 28 in Oakton subdivision, and ten residents of Oakton subdivision who desire to utilize an easement on Lots 27 and 28. In Doxey v. Crissey , 355 Ga. App. 891, 846 S.E.2d 166 (2020), Doxey appealed the trial court's order granting declaratory judgment and injunctive relief to the residents. This Court affirmed a number of the trial court's findings, but vacated and remanded the case "for further proceedings" on whether a change in the use of the easement would cause unreasonable damage to Doxey's property or unreasonably interfere with her enjoyment of the property. Id. at 893-894 (1) (b), 846 S.E.2d 166. We further instructed the trial court, if it found that the change in the use of the easement would not cause unreasonable damage or interference, to make clear who is entitled to access the easement. Id. at 894 (1) (b), n. 2, 846 S.E.2d 166. Following remittitur, the trial court vacated its original order and entered a new order addressing the issues this Court raised in our previous opinion. Doxey now appeals from that order. She does not challenge the trial court's findings or conclusions, but, rather, asserts that the trial court committed reversible error by entering the new order without "conducting further proceedings and without hearing evidence on the issues." We agree that the trial court failed to comply with this Court's directive in our previous opinion, and, therefore, vacate the trial court's judgment and remand for further proceedings consistent with this opinion.

The underlying facts have been set forth in this Court's prior opinion:

[I]n December 1970, Clem and Carolyn Doxey purchased Lot 28 in Section VI of the Oakton subdivision, and ... their house is located on that lot. The warranty deed conveying Lot 28 to the Doxeys referenced a ten-foot wide bridle trail easement along the east property line. Clem Doxey subsequently purchased Lot 27 in Section IV of the Oakton subdivision, and the Doxeys built a tennis court on it. In November 1995, Clem Doxey conveyed both lots to Carolyn Doxey via warranty deed, which was made subject to all easements of record and referenced the ten-foot wide bridle trail easement along the east line of Lot 28 in the legal description of Lot 28. A recorded plat of Section VI of the Oakton subdivision, which is referenced in the legal description of Lot 28 in the November 1995 warranty deed, shows a ten-foot wide bridle trail easement along the east property line of Lot 28. In 1998, a plat was recorded showing the movement of the bridle trail easement from the east side of Lot 28 to the east side of Lot 27. Neither party has challenged the relocation of the easement.

Lots 27 and 28 of the Oakton subdivision back up to Kennesaw Mountain National Park, and the bridle trail easement connects the street in front of the Doxey property to the park. One of the trails in the park is approximately two to three feet from Doxey's back property line. Evidence was presented that some residents of the Oakton subdivision initially used the easement on Lot 28 to gain pedestrian access to the park, and later used the easement on Lot 27 for the same purpose. The only evidence of a horse using the easement came from Carolyn Doxey, who testified that in the early 1970s she saw a girl riding a horse on it.

In the early 2000s, Doxey extended a fence that ran between the back of Lot 28 and the park to cover the back of Lot 27. Initially, there was an approximately three-foot wide gate that allowed continued pedestrian access to the park from the Doxey property. At some point between 2002 and 2004, that gate was nailed shut and then removed, precluding access to the park from the Doxey property.

In 2018, ten residents of the Oakton subdivision brought an action against Carolyn Doxey for declaratory judgment and injunctive relief, seeking to permanently enjoin Doxey from obstructing or interfering with the easements on Lots 27 and 28 of the Oakton subdivision and to require Doxey to remove the fences blocking those easements. After a bench trial, the trial court determined that the plaintiffs had the right to enforce the easement on Lot 27 and declared that all residents of all sections of the Oakton subdivision had the right to continued unobstructed use of that easement as pedestrians or equestrians. The trial court permanently enjoined Doxey from obstructing or interfering with the residents’ use of the easement and ordered her to remove the fence blocking the easement.

Doxey , 355 Ga. App. at 891-892, 846 S.E.2d 166.

Doxey appealed, arguing that the trial court erred by (1) considering parol evidence to determine the meaning of "bridle trail," (2) finding that the bridle trail easement had not been abandoned by nonuse, and (3) restricting the testimony of an expert. Neither the parties nor the trial court addressed or considered below the principle that a change in "the manner, frequency, and intensity of use" of the easement within the physical boundaries of the existing easement is permitted without consent of the other party, so long as the change is not so substantial as to "cause unreasonable damage to the servient estate or unreasonably interfere with its enjoyment." Parris Properties, LLC v. Nichols , 305 Ga. App. 734, 739 (1) (b), 700 S.E.2d 848 (2010) (citations and punctuation omitted).

On appeal, this Court found that the phrase "bridle trail" is unambiguous. Doxey , 355 Ga. App. at 893 (1) (a), 846 S.E.2d 166. However, we further concluded that although the phrase used in the easement was unambiguous, the trial court did not err in concluding that the easement had not been abandoned. Id. at 894 (2), 846 S.E.2d 166. This Court pointed out that

the transition of the easement from an access trail to the park for horseback riding to one for walking and running is consistent with a change in the "manner, frequency, and intensity of use" and would be permitted without Doxey's consent, so long as the change does not cause unreasonable damage to Doxey's property or unreasonably interfere with her enjoyment of her property.

Id. at 893-894 (1) (b), 846 S.E.2d 166. Because the trial court had not considered the potential impact of this change in use, this Court remanded the case "for further proceedings on that issue" and for the trial court to clarify who would be entitled to access the easement if the change in use is permitted. Id. at 894 (1) (b), 846 S.E.2d 166.

Following remittitur, the trial court "reviewed the file, the transcript, and the applicable law," vacated its original order, and entered a new order.¹ The new order added the following pertinent findings of fact and conclusions of law:

16.

Although the easement was designated for use as a bridle trail, a change in "the manner, frequency, and intensity of use" of the easement within the physical boundaries of the existing easement is permitted without the consent of the other party, so long as the change is not so substantial as to "cause unreasonable damage to the servient estate or unreasonably interfere with its enjoyment." Parris Properties, LLC ... 305 Ga App. at 739, 700 S.E.2d 848.

17.

The evidence shows that walkers, hikers, and runners have been using this easement since 1970 to directly access the National Park. Under the [p]rinciple of Parris Properties, LLC v. Nichols[,] supra, the easement has transitioned from an access trail to the park for horseback riding to one for walking and running is consistent with a change in the "manner, frequency, and intensity of use" and is permitted without the Defendant's consent.

18.

The issue becomes whether the change in the nature of the easement causes unreasonable damage to the Defendant's property or unreasonably interferes with her enjoyment of the property. The Court finds that it does not.

The easement has been used for walkers, runners, hikers, (the changed nature of the easement) for almost 50 years. The Defendant owns Lot 28 — where her residence is located and Lot 27 where her tennis court is located. The easement was transferred in 1988 to the side of Lot 27 farthest from the house and on the side of the tennis court opposite from the house — the east side. There is no evidence of any problem being caused to the Defendant by use of this easement, in fact, the uncontroverted evidence is that the tennis players would wave at the people using the easement.

...

28.

The Court orders, adjudges, and declares that the residents of all sections of Oakton Subdivision have the right to the continued unobstructed use of the private easement set out in Plaintiffs Exhibit 10 - the Plat filed for record in Plat Book 124 Page 40, across Lot 27.

Based on these findings of fact and conclusions of law, the trial court once again granted declaratory judgment and injunctive relief to the Oakton subdivision residents. Doxey appeals.

In her sole enumeration of error, Doxey contends that the trial court committed reversible error by failing to conduct "further evidentiary proceedings" "to make an intelligent and reasoned ruling on the two questions posed by this Court on remand to the trial court." Specifically, Doxey asserts that the trial court violated our direction on remand by failing to hold a hearing and allow arguments by the parties prior to entering a decision. Because the trial court did not take any action that would constitute a "proceeding" prior to rendering its new order, we agree that the judgment must be vacated.

It is well settled that "[a] trial court ... regardless of its good intentions, cannot decide to disregard the...