In Your Dreams Farm, Inc. v. Raisin's Ranch, LLC , 350 Ga. App. 398 ( 2019 )

FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, 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
June 11, 2019
In the Court of Appeals of Georgia
A19A0488. IN YOUR DREAMS, INC. et al. v. RAISIN’S RANCH,
LLC.
BROWN, Judge.
Raisin’s Ranch, LLC, as an alleged assignee of Susan Purcell, brought this
action for declaratory judgment against In Your Dreams, Inc. and Anita Ryan to
resolve a dispute over the existence and use of an easement on property which
belongs to Purcell and which adjoins property owned by Ryan.1 Raisin’s Ranch
asserted that no valid easement existed to encumber Purcell’s property. On cross-
motions for partial summary judgment, the trial court granted Raisin’s Ranch’s
motion and denied In Your Dreams and Ryan’s motion, finding that no valid
1
Ryan owns In Your Dreams, an equestrian training and event facility located
on her property. Nothing in the record shows that In Your Dreams has any ownership
interest in, or even leases, the property owned by Ryan.
easement existed. In Your Dreams and Ryan now appeal the trial court’s ruling
granting Raisin’s Ranch’s motion. For the reasons that follow, we reverse the trial
court’s order.
On appeal, we review the trial court’s grant of summary judgment de
novo to determine whether the evidence of record, viewed in a light
most favorable to the nonmoving party, demonstrates any genuine issue
of material fact. Summary judgment is proper only when there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.
(Citations and footnotes omitted.) Gilbert v. Fine, 288 Ga. App. 20, 21 (653 SE2d
775) (2007).
So viewed, the evidence shows that in 1992, Ryan acquired a parcel of land by
way of warranty deed. In conjunction with the deed, a plat depicting the property
conveyed was recorded in the public record (“the 1992 Plat”). In 1997, Ryan recorded
another plat (“the 1997 Plat”), depicting the property she owned at the time divided
into three separate tracts referred to as “Tract A,” “Tract A-1,” and “Tract B.” The
1997 Plat also depicts a “50 ACCESS ESMT TO TRACT A-1” which begins at the
point where the boundary of Tract A and Tract B meets “Birmingham Road/Highway
372,” and continues to the boundary of Tract A and Tract A-1 (“the Easement”). The
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Easement benefits Tracts A and A-1 and burdens Tract B. The 1997 Plat does not
appear to relate to any transfer or conveyance of the property and is the first recorded
document referencing the Easement on the property owned by Ryan.
On November 13, 2000, Ryan conveyed to herself five lots within Tract B, as
depicted in the 1997 Plat, via warranty deed. Over the next few years, Ryan conveyed
these five lots to various individuals and to a limited liability company. On June 24,
2004, Ryan pledged Tracts A and A-1 as security for debt owed to Washington
Mutual Bank, FA and executed a security deed which was recorded in the public
record. The legal description of the property to be encumbered by the June 24, 2004
security deed references the 1997 Plat. No specific reference is made to the Easement
depicted in the 1997 Plat.
On November 16, 2004, Ryan further encumbered Tract A of her property in
favor of Wachovia Bank, National Association by executing an “Open-End Deed to
Secure Debt.” The legal description of the property does not reference the 1997 Plat
or the Easement, but references the 1992 Plat.2
2
We note that the legal description refers to the subject property as “Tract A”
in the 1992 Plat, but the 1992 Plat does not designate any of the property as Tract A.
3
On July 14, 2006, Ryan executed a “Deed to Secure Debt, Assignment of Rents
and Security Agreement” in favor of Power Lending, LLC (“2006 Power Lending
Deed”). Pursuant to this agreement, Ryan pledged, as collateral, a portion of Tract B
as described in the 1997 Plat. Power Lending subsequently assigned its rights in the
July 14, 2006 deed to RBC Bank (USA).
After Ryan defaulted on the underlying debt, RBC foreclosed on the property
on August 2, 2011. Susan Purcell purchased the encumbered portion of Tract B (“the
servient estate”) from PNC Bank, successor by merger to RBC, by limited warranty
deed and quitclaim deed on August 27, 2013. The legal descriptions therein do not
reference any easement on the property, nor do they reference the 1997 Plat.
Believing it to be a valid easement, Ryan and In Your Dreams continued to use the
roadway on the servient estate as a means of accessing their property — Tracts A and
A-1 as specified in the 1997 Plat (“the dominant estate”). Purcell manages Raisin’s
Ranch, LLC — the plaintiff in this declaratory judgment action — on the servient
estate as a commercial enterprise.
Raisin’s Ranch filed a complaint seeking a declaratory judgment that a valid
easement did not exist to encumber its alleged property. In Your Dreams and Ryan
answered and brought counterclaims for continuing trespass and attorney fees. On
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cross-motions for partial summary judgment, the trial court granted partial summary
judgment to Raisin’s Ranch and denied that of Ryan and In Your Dreams. The trial
court concluded that Ryan had failed to create an express easement, and alternatively
that if she had successfully created the Easement, it was extinguished by the
subsequent foreclosure of the servient estate. The trial court also found that no
easement was created by either implication or necessity. In Your Dreams and Ryan
now appeal the trial court’s order, contending that the Easement was expressly
created by the 1997 Plat, and alternatively, that an easement by implication or
necessity was created.
The Declaratory Judgment Act
gives superior courts the power to declare rights and other legal relations
of any interested party in “cases of actual controversy” under OCGA §
9-4-2 (a) and “in any civil case in which it appears to the court that the
ends of justice require that the declaration should be made.” OCGA § 9-
4-2 (b).
Leitch v. Fleming, 291 Ga. 669, 670 (732 SE2d 401) (2012). “There can be no
justiciable controversy unless there are interested parties asserting adverse claims
upon a state of facts which have accrued.” (Citation and punctuation omitted.) Bd. of
Natural Res. v. Monroe County, 252 Ga. App. 555, 557 (1) (556 SE2d 834) (2001).
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And in order to show it is an “interested party” under the Declaratory Judgment Act,
“a party must show that his rights are in direct issue or jeopardy.” Id. Put another way,
the requisite facts or conditions which the courts generally hold must be
present to order that a declaratory judgment may be obtained may be
summarized as follows: (1) There must exist a justiciable controversy;
that is to say, a controversy in which a claim of right is asserted against
one who has an interest in contesting it; (2) the controversy must be
between persons whose interests are adverse; (3) the party seeking
declaratory relief must have a legal interest in the controversy, that is to
say, a legally protectible interest; and (4) the issue involved in the
controversy must be ripe for judicial determination.
(Citation and punctuation omitted; emphasis supplied.) Felton v. Chandler, 75 Ga.
App. 354, 359 (43 SE2d 742) (1947). With regard to the “legal interest” requirement,
we must keep in mind that “[a]n easement has been defined as ‘a right in the owner
of one parcel of land, by reason of such ownership, to use the land of another for a
special purpose, not inconsistent with the general property in the owner.’” Daniel F.
Hinkle, Pindar’s Ga. Real Estate Law and Procedure, § 8-1 (7th ed., updated April
2017). “The land used by or ‘serving’ the grantee of the easement is known as the
servient tenement; the land served by or benefitting from the easement is known as
the dominant tenement.” Id. at § 8-2.
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As far as this Court can deduce from the record at hand, the owner of the
servient estate is not a party to this action. The record is absent of any evidence
regarding Raisin’s Ranch’s relationship to the servient estate apart from the bare
allegations in its unverified complaint that Raisin’s Ranch “owns” the servient estate
and is an “interested party.” Both In Your Dreams and Ryan state in their respective
answers that they do “not have information sufficient to admit or deny if [Raisin’s
Ranch] is the proper interested party.” The record is devoid of any evidence showing
that Raisin’s Ranch has any ownership interest in the servient estate. Instead, the
record shows, and the parties do not dispute, that Purcell, in her individual capacity,
purchased the servient estate; and nothing in the record reflects that Purcell assigned,
or transferred, her ownership interest in the servient estate to Raisin’s Ranch.3 Based
on the foregoing, we do not believe that Raisin’s Ranch is an “interested party” as
intended by the Declaratory Judgment Act such that it can bring the current action to
declare the nonexistence of an easement across the servient estate. Cf. 7455 Inc. v.
Tuala Northwest, LLC, 274 Or. App. 833, 844 (362 P3d 1179) (2015) (lessee of
3
Nothing in the record shows that Raisin’s Ranch even leases the servient
estate from Purcell.
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dominant estate could not bring action to assert existence of easement). Accordingly,
we reverse the trial court’s grant of partial summary judgment to Raisin’s Ranch.
Judgment reversed. Barnes, P. J., and Mercier, J., concur.
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