DONNIE R. WHITE and BARBARA A. WHITE, Respondents,
JON M. SIMON and JACKIE SIMON, Appellants, WM. O. RUSSELL ABSTRACT CO., Defendant.
FROM THE CIRCUIT COURT OF DADE COUNTY Honorable David R.
E. SCOTT, P.J.
Simons appeal a judgment denying their request to reform a
warranty deed that granted their neighbors, the Whites, an
ingress/egress easement. The Simons raise four challenges to
the trial court's application of the law and four
challenges to the trial court's weighing of the evidence.
Simons owned 43 acres platted as a subdivision. In October
2011, the Whites agreed to buy 19 acres of it (the
"Property"). Consistent with the eventual warranty
deed, the Whites believed access would be via easement to use
the chip-and-seal roadway that ran between subdivision lots 9
and 67 and was designated on the plat. That was how they
accessed the Property in deciding whether to buy it and was
the only developed roadway then leading to the Property.
was no written sale contract. In February 2012, everyone
signed the abstract agent's escrow-order form which
described the Property only as "land only 19 acres m/l
see survey." The parties then authorized the abstract
agent to generate a legal description for the Property and
prepare a warranty deed and other closing
abstract agent did so and hosted the March 8 closing. The
warranty deed's four-paragraph legal description included
all or parts of subdivision lots 26-55, 74-83, 88-93 and
certain platted roadways "along with Easement
for Ingress and Egress located between Lots 9 and 67
…" (emphasis in original)(the
"Easement"). The Simons executed the deed, which
was duly recorded, and everyone left the closing on good
Whites built a house near the Simons' home and connected
their driveway to the existing road. Construction workers
used the Easement and roadway, as did the Whites then and
thereafter for several years. The Simons knew this and did
not object. Another property owner also used the Easement to
access his driveway. This photo shows the three homes and the
roadway, which is marked with dashes where it followed the
December 2015, the Simons fenced and gated the Easement while
the Whites were on vacation. They notified the Whites that
they would lock the gates the following March (three years
after the Property sale closing) to prevent "unwanted
Whites sued to enforce their Easement rights under the deed.
The Simons counterclaimed to reform the deed and for a
declaration that no easement existed between Lots 9 and 67.
After a 2018 bench trial where both Whites, both Simons, and
other witnesses testified, the court entered a judgment for
the Whites and against the Simons that included these
• The deed clearly and unambiguously transferred the
Property "along with Easement for Ingress and Egress
located between Lots 9 and 67."
• For deed reformation, the Simons had to prove by
clear, cogent, and convincing evidence (1) a preexisting
agreement between the parties; (2) a scrivener's error;
and (3) that the mistake was mutual as between grantors and
grantees. See ...