Opinion
No. 15–P–798.
09-29-2016
John A. KNAPP, Jr., & another v. Margaret POWICKI & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At issue in this case is the fee in and easement rights over a “proposed way” (way) in Sherborn created in a 1933 deed and shown on a plan recorded in the Middlesex Registry of Deeds on May 29, 1934. In 2011, on cross motions for summary judgment, a judge of the Superior Court determined that pursuant to the derelict fee statute, G.L. c. 183, § 58, defendant Nancy Teti, as trustee of the Coolidge Realty Trust, owns the fee in a large portion of the way and the plaintiffs, Katherine and John Knapp, own the rest of the fee. Following the summary judgment decision, a trial was conducted on the issue whether the Knapps have an implied or prescriptive easement over the way, and the jury determined they do not. After a separate bench trial, the judge rejected the Knapps' claim that they had a right of first refusal on Teti's property and that the transfer to Teti violated that right. The judge also allowed, pursuant to G.L. c. 231, § 59H, the Knapps' special motion to dismiss Teti's counterclaims for malicious prosecution, and awarded the Knapps attorneys' fees. Last, the judge allowed the Knapps' motion for judgment on the pleadings on Teti's G.L. c. 93A claim.
The deeds discussed herein refer to the forty-foot wide strip of land as a “proposed way,” while plans recorded with the deeds refer to it as a “proposed street.” We use the terms interchangeably.
The judge determined that Teti's predecessor, Margaret Powicki, had agreed only to allow the Knapps to make the first offer on the property. Other than Teti's assertions in her malicious prosecution claim that there was never any merit to the Knapps' claim of a right of first refusal, there has been no appeal from this aspect of the judge's decision.
The parties have not included the memorandum of decision on the c. 93A claim in the record before us and make no argument related to it on appeal.
The Knapps now appeal, limiting their argument to whether the judge (i) correctly declined to reform the 1933 deed, (ii) misconstrued the retroactive provision of G.L. c. 183, § 58, (iii) violated the Knapps' constitutional rights by forcing the transfer of real property, and (iv) awarded inadequate attorneys' fees. Teti cross-appeals from the allowance of the Knapps' special motion to dismiss and the award of attorneys' fees.
Background. The facts concerning the creation of the way at issue are not in dispute. All of the property at issue was once part of a large lot of farmland owned by Peter E. Bacigalupo beginning in 1920. In 1926, Bacigalupo created a house lot fronting on Coolidge Street which came to be known as 95 Coolidge, and deeded it to his daughter, Dorothea F. Dupuis. Aside from frontage on Coolidge Street, there is no mention of any other way, and a plan contained in the record purporting to depict the land conveyed to Dupuis does not show the way at issue.
On October 18, 1933, Bacigalupo created a second lot, known as 99 Coolidge, and conveyed it to his sister-in-law and her husband, the Stacks. Teti is the current owner of 99 Coolidge. When Bacigalupo created 99 Coolidge, he also created a strip forty feet wide between 95 and 99 Coolidge. In the original deed to the Stacks, he described 99 Coolidge as beginning forty feet north of the northeast corner of 95 Coolidge and running westerly “by the northerly line of a proposed way 40 feet wide in a line parallel to and 40 feet distant from the northerly line of the land of said Dupuis 150 feet.” A confirmatory deed to 99 Coolidge was recorded on May 29, 1934, and refers to an October, 1933, plan recorded with the revised deed. The description is not as careful as the original deed but does describe the lot as bound southerly by the “northerly line of a proposed street.” The plan labels the strip as “PROPOSED STREET” and clearly depicts it as extending into and abutting Bacigalupo's remaining land.
The deed description specifically provided:
“Beginning at a point on the westerly side of Coolidge Street, ... about 40 feet northerly of the northeasterly corner of land of ... Dupuis, thence running westerly by the northerly line of a proposed way 40 feet wide in a line parallel to and 40 feet distant from the northerly line of the land of said Dupuis 150 feet to other land of this grantor; thence northerly in a line at right angles to said proposed way by other land of this grantor 80 feet; thence easterly by the said last mentioned land to said Coolidge Street; thence southerly by said street to the point of the beginning.”
Finally, on July 11, 1963, Bacigalupo conveyed what is now known as “the farm” or 111 Coolidge Street, to Anna Mandella, describing it with the original metes and bounds description in his 1920 deed but excepting “such portions ... as have heretofore been conveyed to others.” Bacigalupo thereby incorporated by reference the deeds to 95 and 99 Coolidge. No specific mention of the way is made, and the record reflects that 111 Coolidge has two other points of access from Coolidge Street.
The Knapps purchased 111 Coolidge from Mandella's successors on May 24, 1999, and the deed included the same description as Mandella's deed. Teti purchased 99 Coolidge from Margaret Powicki on October 15, 2008. Powicki's daughter, Jennifer Hawkins, is the current owner of 95 Coolidge.
With regard to the fee in the way, applying the derelict fee statute, G.L. c. 183, § 58, the judge concluded that there was no express language reserving the fee in the grantor and, accordingly, the 1934 confirmatory deed of 99 Coolidge to the Stacks included the fee in the entirety of the way for the first 120 feet (the limit of the 95 Coolidge lot) and the fee to the center of the way for an additional thirty feet to the end of the Stacks' lot. The judge further determined that the Knapps own the fee from the center of the way on the southerly side of the thirty feet west of the 95 Coolidge western lot line as well as the entirety of the remaining 38.5 feet of the proposed street shown on the 1934 plan.
Teti has not appealed from the judge's determination of the Knapps' ownership interests in the way.
Following the summary judgment on the fee interest issue, a jury trial took place on the issue whether the Knapps have an implied or prescriptive easement over the way. On jury instructions not contained in the record before us, the jury concluded that the Knapps have no such easement. Teti voluntarily dismissed her claim of intentional infliction of emotional distress, and the judge allowed the Knapps' special motion to dismiss Teti's malicious prosecution claim, reasoning that it derived from the Knapps' petitioning activity. The judge denied Teti's motion for reconsideration, and awarded the Knapps attorneys' fees related to the anti-SLAPP proceedings.
In the absence of express reservation of an easement, “the conveyance of land with reference to a plan creates such an easement, other than by necessity, ‘only if clearly so intended by the parties to the deed.’ “ Boudreau v. Coleman, 29 Mass.App.Ct. 621, 628 (1990), quoting from Scagel v. Jones, 355 Mass. 208, 211 (1969). The relevant analysis depends upon “a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable.” Boudreau, supra at 629, quoting from Perodeau v. O'Connor, 336 Mass. 472, 474 (1957).
Discussion. A. Rights in the way. The judge correctly found that, under the common law at the time the deed to 99 Coolidge was executed, the language used in the deed would have been enough to demonstrate the grantor's intent to retain the fee in the way and rebut any presumption that the fee passed to the grantee of 99 Coolidge. See Casella v. Sneierson, 325 Mass. 85, 89 (1949) (description bounding lot by the side line of a way indicates grantor “did not intend to part with title to any portion of the way”); Rowley v. Massachusetts Elec. Co., 438 Mass. 798, 803–804 (2003) (at common law, but not under G.L. c. 183, § 58, property bounded “by a side line” of a way evidenced grantor's intent to retain fee). In 1971, however, the Legislature enacted the derelict fee statute, G.L. c. 183, § 58, the effect of which “is to strengthen ‘the common law ... presumption that ‘a deed bounding on a way conveys the title to the centre of the way if the grantor owns so far.’ “ Hanson v. Cadwell Crossing, LLC, 66 Mass.App.Ct. 497, 499–500 (2006), quoting from Rowley, 438 Mass. at 803. The statute, as set forth in the margin, applies retroactively to instruments executed before the enactment of the statute unless the land is registered or “to the extent that any person or his predecessor in title has changed his position as a result of a decision of a court of competent jurisdiction.” G.L. c. 183, § 58, as appearing in St.1990, c. 378, § 2.
General Laws c. 183, § 58, as appearing in St.1990, c. 378, § 1, provides, in pertinent part:
“Every instrument passing title to real estate abutting a way, whether public or private, ... shall be construed to include any fee interest of the grantor in such way ... unless (a) the grantor retains other real estate abutting such way, ... in which case, (i) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way ... as far as the grantor owns, or (ii) if the retained real estate is on the other side of such way, ... the title conveyed shall be to the center line of such way ... as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.”
We agree with the Superior Court judge that the fact that the Knapps' predecessor acquired title through a judgment of the probate court that she was the proper beneficiary of land described in a 1964 deed does not mean that she “changed [her] position as a result of a decision of a court of competent jurisdiction,” where there is no indication that the title to the way was at issue in the probate court.
It has been suggested that the purpose of the statute was “to meet a situation where a grantor has conveyed away all of his land abutting a way or stream, but has unknowingly failed to convey any interest he may have in land under the way or stream, thus apparently retaining his ownership of a strip of the way or stream.” Rowley, 438 Mass. at 803, quoting from 1971 House Doc. No. 5307. “Its effect was to quiet title to sundry narrow strips of land that formed the boundaries of other tracts, by establishing ‘an authoritative rule of construction for all instruments passing title to real estate abutting a way.’ “ Rowley, supra, quoting from Tattan v. Kurlan, 32 Mass.App.Ct. 239, 242 (1992).
We agree with the judge that despite the careful description of 99 Coolidge as bounded by the “northerly line” of the way, there are no words of reservation of the fee as required by the statute. Because § 58 specifically provides that it applies retroactively to deeds granted prior to its 1972 effective date, we must construe the 1933 and 1934 deeds to Teti's predecessor, the Stacks, as including the fee to the portion of the way that abutted 99 Coolidge. As the judge correctly determined, Teti's fee interest therefore includes the full width of the way where the grantor owned no land on the other side of the way and to the center of the way where the grantor did own land on the other side of the way.
Although by operation of § 58, portions of the fee in the way passed to Teti as the grantee of 99 Coolidge, the statute does not control the easement rights of owners of other portions of the fee. See Adams v. Planning Bd. of Westwood, 64 Mass.App.Ct. 383, 389 (2005). The judge correctly concluded that the Knapps own a portion of the fee. In addition, the judge found, and it is apparent from the October, 1933, plan accompanying the 1934 confirmatory deed to 99 Coolidge, that the way continues west past 99 Coolidge and runs into and abuts the Knapps' property, known as 111 Coolidge. The 1933 plan is effectively incorporated by reference in the original deed to 111 Coolidge by excepting property previously conveyed. Here, both Teti and the Knapps own a portion of the fee in the way, and their respective properties are bounded by the way. “[W]hen a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed.” Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass.App.Ct. 434, 437 (2006), quoting from Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 677–678 (1965). Post v. McHugh, 76 Mass.App.Ct. 200, 202–203 (2010). See Tattan, 32 Mass.App.Ct. at 244–245 (court held that where a deed referenced a plan showing two strips “reserved” for “future street purposes,” labels on the plan were insufficient to meet the requirements of § 58 to expressly reserve the fee interest, but that “[s]uch designations may give rise to nonpossessory, nonexclusive easements or rights of way in the grantors and their successors in interest”). We have applied this rule to estop abutters from denying that another abutter on a way enjoys an easement over the way where all of the abutters derived title from a common grantor. Lane, supra. Indeed, it would be anomalous in the extreme to allow Teti to rely on the status of the way under § 58 as a vehicle to partially divest the Knapps of a fee interest in it, while simultaneously denying its status as a way in order to deprive the Knapps of any easement rights across it. We conclude that as a matter of law, at least as against Teti, the Knapps have an easement over the way.
We are aware that the Knapps failed to challenge the jury decision that they had no implied or prescriptive easement and have not argued on appeal that they have an easement without reformation of the deed. However, because the application of § 58 does not eliminate the easement they enjoy as an abutter to the way, we cannot ignore the existence of the easement in light of the Knapps' arguments that application of the derelict fee statute in effect results in an unconstitutional taking of their property rights.
We invited the parties to submit supplemental briefing on the issue of easement by estoppel and we have received and considered those submissions.
Our conclusion that the Knapps retain easement rights in the way obviates any need to address their claim that the derelict fee statute is unconstitutional, since their easement rights put them in substantially the same position they would hold if they owned the fee in the way. “Doubts as to a statute's constitutionality ‘should be avoided if reasonable principles of interpretation permit doing so.’ “ Blixt v. Blixt, 437 Mass. 649, 674 (2002) (Sosman, J., dissenting, with whom Ireland, J., joins), quoting from Staman v. Assessors of Chatham, 351 Mass. 479, 487 (1966).
B. Reformation. Citing McGovern v. McGovern, 77 Mass.App.Ct. 688 (2010), the Knapps argue that the deed to 99 Coolidge from Bacigalupo should be reformed to reflect the true intent of the parties. “Reformation is available to parties where there has been a mutual mistake which is material to the instrument and where no rights of third persons are affected.” Id. at 699, quoting from Beach Assocs. v. Fauser, 9 Mass.App.Ct. 386, 394–395 (1980). “[A] deed may not be reformed against a bona fide purchaser on the ground of a mutual mistake.” Buk Lhu v. Dignoti, 431 Mass. 292, 294 (2000). We discern no error in denying the requested relief where there was no evidence of a mutual mistake in that the deed did exactly what the parties wanted at the time and it was only legislative action some years later that caused the deed to be interpreted differently with regard to the fee in the way. In McGovern, the parties mutually misunderstood the effect of § 58 at the time the deed was executed. There was no subsequent change in the law that caused the interpretation of the deed to be different from that anticipated by the parties. Reformation, we said, was appropriate because of the overwhelming evidence that both parties believed the grantor retained the fee in the way at issue. McGovern, supra at 700–702. Here, the Knapps simply have failed to demonstrate that reformation of a deed is an available remedy in circumstances where a legislative act years after the deed alters the interpretation of the deed. In addition, the rights of a presumably bona fide purchaser, Teti, would be affected by any reformation of the deed.
C. SLAPP. We discern no error in the allowance of the special motion to dismiss Teti's malicious prosecution claim pursuant to G.L. c. 231, § 59H. “To prevail on a claim for malicious prosecution, a plaintiff must establish that he was damaged because the defendant commenced the original action without probable cause and with malice, and that the original action terminated in his favor.” Chervin v. Travelers Ins. Co., 448 Mass. 95, 103 (2006), citing Hubbard v. Beatty & Hyde, Inc., 343 Mass. 258, 261 (1961). “To establish probable cause, ‘[a]ll that is necessary, where civil proceedings are involved, is that the “claimant reasonably believe that there is a chance that his claim may be held valid upon adjudication.” ‘ “ Millennium Equity Holdings, LLC v. Mahlowitz, 73 Mass.App.Ct. 29, 36 (2008), quoting from Hubbard, supra at 262. The basis of the malicious prosecution claim was that the Knapps pursued a baseless claim of a right of first refusal in order to force Teti to transfer her property to them. The Knapps' right of first refusal claim, however, survived summary judgment. Moreover, after a bench trial, the judge found that John Knapp “believed in good faith that the Powickis had agreed to give him a traditional right of first refusal.” Although the judge ultimately found that Powicki agreed only to give Knapp the first opportunity to make an offer to purchase 99 Coolidge and that she complied with that agreement, the judge's finding that Knapp had a good faith belief that Powicki had given him a traditional right of first refusal defeats the malicious prosecution claim.
Teti argues that more than just petitioning activity supports her malicious prosecution claim, and, therefore, the use of the anti-SLAPP statute was inappropriate. She contends that in addition to bringing a baseless action, the Knapps trespassed on her property and cut a tree, threatened to bring suit to enforce their right of first refusal, set up a camera to take pictures of her in her home, and created a dirt pile within feet of a window in her home. In her counterclaim, Teti did not distinguish these assertions as supporting her malicious prosecution claim rather than her intentional infliction of emotional distress claim, which she voluntarily dismissed, or her c. 93A claim, which was dismissed on the pleadings. Teti's opposition is not contained in the record before us and we cannot determine whether she raised these issues below in relation to the malicious prosecution claim. But, even if these factors could have been considered evidence of malice, the fact remains that contrary to Teti's assertions, the judge found there was a reasonable basis for the Knapps' claim of a right of first refusal. In addition, the jury found the Knapps had good reason to believe that they owned the land on which the maple tree was located and were lawfully authorized to cut it down. Moreover, the goal of the “threatened” litigation was in fact to enforce the right of first refusal; there was no “ulterior or illegitimate purpose.” Compare Wodinsky v. Kettenbach, 86 Mass.App.Ct. 825, 836 (2015) (judge correctly denied motion for judgment notwithstanding the verdict on an abuse of process claim where frivolous litigation was commenced to collect large sum of money with ulterior purpose of forcing defendants to leave their home). On the record presented, we cannot say the judge abused his discretion in determining that there was no “substantial basis” for Teti's claims other than the petitioning activity. Contrast Keystone Freight Corp. v. Bartlett Consol., Inc., 77 Mass.App.Ct. 304, 316 (2010).
We decline Teti's request that we reexamine the use of the special motion to dismiss in the context of her malicious prosecution claim.
D. Attorneys' fees. Both parties challenge the award of fees. The Knapps, while willing to accept a reduction in the number of hours charged for their special motion to dismiss, in essence argue that the judge should have awarded their actual fees with regard to other tasks, including negotiating with Teti, responding to Teti's motion for reconsideration, and creating their fee affidavit. The Knapps, however, misconstrue the judge's award. He reduced the overall number of hours charged from ninety-six to twenty hours. In other words, the fee awarded was not for preparation of the special motion alone. Rather, it was for all of the work supported by the Knapps' fee applications, reduced according to what the judge deemed to be reasonable. The judge, citing Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 429–430 (2005), articulated the factors he considered, including “(1) the nature of the case and the issues presented, (2) the time and labor required, (3) the amount of damages involved, (4) the result obtained, (5) the experience, reputation, and ability of the attorney, (6) the usual price charged for similar services by other attorneys in the same area, and (7) the amount of awards in similar cases.” We discern no error.
Teti argues that the court's award should have been based on the actual hourly rate charged by the Knapps' attorneys ($250 per hour) instead of their highest rate ($500 per hour) as awarded by the judge. The judge rejected this argument, however, saying that he focused on the “time and labor required” and “the usual price charged for similar services by other attorneys in the same area.” See Twin Fires Inv., LLC, supra at 430. Teti's argument that the Knapps did not “incur” fees at the rate of $500 per hour is unavailing where their submissions showed they incurred $38,671 in fees and that total was reduced to $10,000. We, therefore, discern no abuse of discretion in the fee award.
As there has been no change in the ownership of the way, we reject the Knapps' argument that they are entitled to costs as a prevailing party.
Conclusion. The judgment shall be modified to declare that, as against Teti, the Knapps have an easement by estoppel over the entirety of the proposed street. As so modified, the judgment is affirmed.