Opinion
21-P-367
04-22-2022
Christopher W. KING, trustee, & another v. CLAIRE ADAMS, LLC, & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Plaintiffs, Captain's Choice, Inc., and the owner of the land that is leased to Captain's Choice, appeal from a judgment, after a jury-waived trial, declaring that a disputed easement is exclusive to the defendants, Claire Adams, LLC, and Ellery P. Althaus. Concluding that there is evidence on which the judge could find that the exclusivity of the easement was not extinguished by prescription, we affirm.
Judgment also entered in favor of the defendants on the plaintiffs’ claims for trespass, private nuisance, and intentional interference with advantageous business relationships. The plaintiffs raise no issues on appeal concerning those claims.
1. Standard of review. Where the parties agree, pursuant to Rule 20(2)(h) of the Rules of the Superior Court (2018), to waive detailed findings of fact, "appellate review of the court's decision and of the judgment entered shall be according to the standard of review that would apply to a [jury verdict] and to the judgment entered thereon." Rule 20(8)(b) of the Rules of the Superior Court (2018). On appeal, the parties forfeit all arguments that depend on "the existence of detailed written findings of fact." Spinosa v. Tufts, 98 Mass. App. Ct. 1, 10 & n.10, 17 (2020), quoting Superior Court Standing Order 1-17(2)(b) ("superseded by Rule 20 [8] of the Rules of the Superior Court [2018], which is substantially identical").
Here, the parties waived detailed findings of fact and opted instead to submit "special questions on the elements of each claim." Spinosa, 98 Mass. App. Ct. at 10, quoting Rule 20(8)(a) of the Rules of the Superior Court (2018). Thus, we will uphold the judgment if "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the [prevailing party]." Rabassa v. Cerasuolo, 97 Mass. App. Ct. 809, 814 (2020), quoting Dobos v. Driscoll, 404 Mass. 634, 656, cert. denied, 493 U.S. 850 (1989). See Spinosa, supra (standard of review applicable to verdict by jury applies to judge's answers to special questions).
2. Extinguishment by prescription. At trial, the parties litigated both whether the parking easement established on the plaintiffs’ land for the benefit of the defendants was originally exclusive and whether, if it was originally exclusive, the exclusivity had been extinguished by prescription. The trial judge found that the parking easement on the plaintiffs’ land was exclusive to the defendants and that the exclusivity had not been extinguished by prescription. On appeal, the plaintiffs argue that the judge erred in not finding that the exclusive nature of the easement was extinguished by prescription.
Although the plaintiffs challenged this finding at oral argument, they identified it as an issue but otherwise did "not address that issue in [their] brief, so we consider the issue waived." Matter of the Estate of King, 98 Mass. App. Ct. 332, 332 n.2 (2020). Accord Trustees of the Beechwood Village Condominium Trust v. USAlliance Fed. Credit Union, 95 Mass. App. Ct. 278, 287 n. 20 (2019) ("Arguments raised for the first time at oral argument are waived").
The plaintiffs do not argue on appeal, as they did in Superior Court, that the easement was extinguished by abandonment.
a. Waiver. Although the plaintiffs focused in Superior Court on their argument that the easement had never been exclusive, they raised the alternative argument of extinguishment in their opposition to summary judgment and in their trial memorandum, submitted during closing arguments. Despite not orally arguing extinguishment at trial, the plaintiffs adequately raised the issue in the Superior Court and it is properly before us. See Trapp v. Roden, 473 Mass. 210, 220 (2015).
b. Evidence of extinguishment. "To extinguish easement rights [by prescription], a servient tenant's adverse acts must render use of an easement ‘practically impossible for the [twenty-year] period.’ " Post v. McHugh, 76 Mass. App. Ct. 200, 204-205 (2010), quoting New England Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153, 159 (1931). If adverse acts render use of only part of the easement impossible, "the easement [is] extinguished only as to that part." Post, supra at 205, quoting Pappas v. Maxwell, 337 Mass. 552, 557 (1958). Thus, the exclusivity of an easement may be extinguished, leaving a non-exclusive easement in place, upon an adequate showing of adverse use that is "irreconcilable with the right[ ]" of the defendants to use it exclusively. Benvenuto v. 204 Hanover, LLC, 97 Mass. App. Ct. 140, 143 (2020), quoting Patterson v. Simonds, 324 Mass. 344, 352 (1949). See Post, supra at 205 (adverse use affecting part of easement holder's rights may yield partial extinguishment); Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417, 422-423 (1979) (whether conduct "operate[s] to extinguish an easement by prescription" is fact-specific, though conduct must be "irreconcilable with the rights of the dominant tenant"). The plaintiffs in this case "ha[d] the burden of proof, as [they] affirmatively asserted that the easement had been [partially] extinguished." 107 Manor Ave., LLC v. Fontanella, 74 Mass. App. Ct. 155, 158 n.9 (2009).
We conclude that there is evidence in the trial record that the plaintiffs did not use the easement continuously for the requisite twenty-year period in a way that was inconsistent with the defendants’ exclusive right to use the easement for parking. The defendants introduced trial testimony and sworn statements of Jay Murphy, who "personally observed signs located within the easement area ... specifying that the parking was for Dutra's Market only" (the predecessor to the Salty Market, now owned by Clair Adams, LLC) and stated that the signs were there for more than twenty years. Ronald Friese, one of the defendants’ predecessors, testified at a deposition that, when he purchased the property in 1985, there were signs stating that the parking was for Dutra's Market. In 1996, after one of the plaintiffs’ predecessors, Jonathan Summit, had removed the signs, Friese bought and posted signs stating that parking was for Dutra's Market only. Friese did so because Summit's immediate successor was opening an ice cream shop on the property, which Friese thought would worsen the existing parking shortage. Althaus testified that these signs existed when he purchased the property in 2013, though he replaced them with signs stating that "Parking [was] for Salty Market Only" and that "Unauthorized cars [would] be towed."
Gary Silva, one of the plaintiffs’ predecessors, posted the signs for Friese.
Although there was essentially uncontested evidence that patrons of the ice cream shop occasionally parked in the easement, there was scarce evidence that the ice cream shop directed its employees or customers to park there or otherwise asserted the right to use the easement. The judge was not bound to credit that scarce evidence, or the affidavits asserting that there were no such signs. On the contrary, "the judge was entitled to credit [one party's evidence] over the [other's]." Spinosa, 98 Mass. App. Ct. at 11. The plaintiffs conceded as much in closing argument, stating that "there are inferences on both sides of the testimony that can be drawn." Because the plaintiffs "have failed to show that there was no evidence on which the judge could have found in favor of [the prevailing party]," id. at 15, we affirm the judge's finding that the exclusivity of the easement was not extinguished.
The defendants’ request for attorney's fees is denied. "Although the ... appeal is unsuccessful, it is not frivolous." Filbey v. Carr, 98 Mass. App. Ct. 455, 462 n.10 (2020), quoting Gianareles v. Zegarowski, 467 Mass. 1012, 1015 n.4 (2014).
Judgment affirmed.