Opinion
NO. 2010-CA-002091-MR
07-20-2012
SALAS ENTERPRISES CORPORATION APPELLANT v. POSTAL ENTERPRIZES, LLC APPELLEE
BRIEFS FOR APPELLANT: John S. Talbott Lexington, Kentucky BRIEF FOR APPELLEE: John. P. Brice Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA R. ISAAC, JUDGE
ACTION NO. 07-CI-01628
OPINION
REVERSING AND REMANDING
BEFORE: CLAYTON, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: Salas Enterprises Corporation (Salas) appeals from the Fayette Circuit Court's entry of summary judgment in favor of Postal Enterprizes, LLC (Postal). We reverse and remand.
The relevant facts are set out in our unpublished opinion, Postal Enterprizes, LLC v. Salas Enterprises Corp., 2009 WL 4723242, 1-2 (Ky.App. 2009).
This case arises from a dispute regarding the use of the parking lot at the Lansbrook (formerly Donabrook) shopping center (hereinafter "Shopping Center") located at 3501 Lansdowne Drive, Lexington, Fayette County, Kentucky. The Shopping Center was originally constructed in 1967 and was under common ownership at that time. In 1971 the Lexington Planning Commission approved a plan which divided the original parcel into two distinct parcels, now known as the Salas Parcel and the Postal Parcel. The Postal Parcel is much larger than the Salas Parcel and includes a significant majority of the parking available for the [S]hopping [C]enter.Id. at 1. The deed also stated, "This conveyance is further made subject to easements, building and other restrictions as may be shown on the plat of record." The plat of record set forth the dimensions of the properties and noted "the purpose of this plat is to subdivide parcel 3 for future development in accordance with approved development plan." The deed did not include any language relating to the 1971 development plan.
By deed dated March 2, 1972, Lansbrook conveyed the recently created Salas Parcel to Creekside, Inc. Lansbrook retained the Postal Parcel. The March 2, 1972, deed created a perpetual cross-parking easement allowing for use over and upon the common parking areas of both parcels for the benefit of customers and invitees of the Shopping Center. This easement, while beneficial to the Postal Parcel, was essential to the Salas Parcel because the Salas Parcel never had direct access to either Lansdowne Drive or East Reynolds Road. Therefore, without such an easement ingress and egress from the Salas Parcel would be impossible. The language of the easement was as follows:
The party of the first part retains a perpetual easement over and upon the common parking area of Lot. No. 2 herein for the use and benefit of the customers and invitees of the tenants of Donabrook Plaza Shopping Center, their successors and assigns. Likewise, the party of the first part does hereby grant and convey unto the party of the second part, its successors and assigns, a perpetual easement over and upon the
common parking area of Donabrook Plaza Shopping Center for the use and benefit of the customers and invitees of the tenants of the party of the second part. However, should either Lot No. 2 above or Donabrook Plaza Shopping Center cease to be used for business or commercial purposes, this covenant of reciprocal cross easement reserved by first party for the use and benefit of the customers and invitees of the tenants of Donabrook Plaza Shopping Center and granted to second party for the use and benefit of the customers and invitees of its tenants, shall expire and, thereafter, shall be null, void and of no effect.
The development plan is the only document which showed the location and dimensions of the buildings and parking spaces. "As originally created by the 1971 development plan, the Salas Parcel had a southern boundary of 149.97 feet in length." Id. at 1. The development plan's diagram marked the individual parking spaces for each parcel, showing approximately twenty-two parking spaces on the Salas Parcel.
A consolidation plat recorded on May 25, 1973, reduced the size of the Salas Parcel by severing a triangular piece of the property, which was then consolidated with anId. at 1-2. In total, the building located on the Salas Parcel has expanded from an original 1,540 square feet to more than 4,000 square feet. "The expansions and additions have resulted in an increased seating capacity for the current restaurant located on the Salas Parcel." Id. at 2.
adjacent parcel that was developed as an apartment complex. This consolidation reduced the southern boundary of the Salas Parcel by 29.47 feet. At all times since the 1973 consolidation, the southern boundary of the Salas Parcel has been 120.5 feet. The severance of this triangular parcel eliminated six to seven parking spaces from the Salas Parcel. However, it is not disputed that the surface area of the parking lot located on the Salas Parcel has remained unchanged since 1973 and that the parking configuration has remained substantially unchanged since 1991.
Beginning in 1994, various owners of the Salas [P]arcel expanded the size of the building and made other improvements to the lot in stages. In 1994, 682 square feet was added to the building. In 1999 and 2000, a 750 square foot dining area was added to the "Rincon Mexicano" restaurant, the business operated on the lot at that time.
These expansions have also increased Salas' parking needs, in terms of both actual use and zoning requirements:
The Lexington-Fayette Urban County Zoning Ordinance requires one parking space for every four seats in a restaurant. LFUCG Zoning Ordinance Art. 8-16(n). According to civil engineer Roger Ladenberger's calculations done at the time of the 2004 renovation, the Salas Parcel required thirty (30) spaces to comply with zoning requirements. His calculations, utilizing information provided by the owners of the Salas Parcel, state that there is seating for 119 in the current restaurant on the Salas Parcel. Additionally, his calculation confirms that all of the reconfigurations and renovationsId. at 2. The parties agree that the capacity of the Salas' parking lot is insufficient to meet its current parking needs based upon actual use and zoning requirements, although they disagree on the amount of overcapacity required.
to the lot have decreased the total on-site parking from 22 to 15 spaces. Thus, it appears that beginning in 1994, steps taken by the owners of the Salas Parcel and other predecessors to increase the total seating capacity of the restaurant, coupled with the elimination of the seven spaces in 1973, resulted, at a minimum, in Salas doubling its parking needs from fifteen (15) to thirty (30) spaces and placing all of its additional needs on the property owned by Postal. In other words, Salas and its predecessors converted a lot which could fully supply all of its parking needs to one which could only fulfill those needs by utilizing fifteen spaces on Postal's property. As originally created, the Salas Parcel required zero parking spaces on the Postal Parcel in order to satisfy the zoning ordinance.
The Salas building's expansion is not the only change to have occurred at the Shopping Center. Buildings in the Postal portion of the Shopping Center have also changed use and size. A former grocery store and drug store space were converted and expanded into a United States Postal Service Distribution Center and some parking spaces on the Postal lot were withdrawn from general use and reserved for postal vehicle use.
On April 5, 2007, Postal filed a complaint claiming that over use of the easement had damaged it and caused a continuing trespass. Postal requested damages, a permanent injunction against use of its parking lot by Salas and its invitees, a termination of the easement, and injunctive relief requiring Salas to restore its parking lot to twenty-two spaces.
Following a default order that was set aside, the parties filed motions for summary judgment. The circuit court granted Salas's motion on the basis of the statute of limitations. We reversed and remanded, concluding that although Salas had waived the right to assert a statute of limitations defense, the action was not time-barred. Id. at 3-4.
Upon remand, Postal refiled its motion for summary judgment, which the circuit court granted. In its Opinion and Order, the circuit court stated:
The Court believes it is clear that by eliminating parking spaces on its own lot while increasing its parking needs, Salas has unreasonably increased the burden of the easement on [Postal] while unilaterally destroying the benefit of the cross-easement in favor of [Postal].
. . .
The Court believes that when one examines the totality of the circumstances, it is clear that the elimination of the spaces became a material breach by reason of the staged improvements commenced in 1994 which resulted in both an increased parking demand on Postal's property and loss of development potential. Such material breach excuses Postal from the requirement that Postal make any portion of its property available for Salas' parking. Salas' rights under the cross-parking easement are terminated.
Salas appeals arguing that the parking easement should not have been terminated because factual issues remain as to whether the increase in the use was permissible and reasonable under the easement based upon normal development. Salas disagrees with the circuit court's determination that twenty-two parking spaces were required to be maintained on the Salas Parcel for it to comply with the easement. It argues that the reasonableness of its use of the parking lot must be determined by examining the growth in the shopping complex as a whole, rather than just its increased use. Salas also contends that terminating the easement, rather than damages, was an improper remedy.
Postal argues that Salas' ability to expand its building in reliance on parking from Postal has resulted in a dramatic increase in Salas' gross sales, while depriving Postal of its future developmental potential by having to reserve parking spots for Salas' additional capacity.
"The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996); CR 56.03. Granting of a summary judgment motion "should only be used 'to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.'" Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991) (quoting Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255, 256 (Ky. 1985)).
Interpretation of a deed is a matter of law and is subject to de novo review. Smith v. Vest, 265 S.W.3d 246, 249 (Ky.App. 2007). If the language of a deed is unambiguous, its interpretation is limited to the "four corners of the document." 3D Enterprises Contracting Corp. v. Louisville & Jefferson Cnty. Metro. Sewer Dist., 174 S.W.3d 440, 448 (Ky. 2005). A deed will be construed against the grantor and in favor of the grantee if it is capable of two constructions. Smith, 265 S.W.3d at 249. "A court may not substitute what grantor may have intended to say for what was said." Phelps v. Sledd, 479 S.W.2d 894, 896 (Ky. 1972).
The Salas and Postal properties are bound by easements created in the deed in which Lansbrook conveyed the smaller parcel to Creekside. This deed created reciprocal or cross easements appurtenant to both properties; each property is both dominant and servient to the other. Meade v. Ginn, 159 S.W.3d 314, 317 (Ky. 2004). The Salas property must be reasonable in its use of the Postal property for parking and must not unreasonably interfere with the use of the Postal property. Commonwealth, Dept. of Fish & Wildlife Res. v. Garner, 896 S.W.2d 10, 13-14 (Ky. 1995); Horky v. Kentucky Utilities Co., 336 S.W.2d 588, 589 (Ky. 1960).
In determining what rights and duties adhere to each property, an examination of the particular facts and circumstances is needed. Higdon v. Kentucky Gas Transmission Corp., 448 S.W.2d 655, 657 (Ky. 1969). "The nature and extent of an easement must be determined in light of its purposes." Commonwealth, Dept. of Fish & Wildlife Res., 896 S.W.2d at 14.
While this easement was made to mutually benefit both parcels, the Salas Parcel as the smaller parcel without access to public streets and with initially much less parking had a much greater dependence upon the easement than the Postal Parcel, which had more than enough parking to satisfy its needs without using any of the Salas' parking capacity. Therefore, it appears that the purpose of this easement was to make the Salas Parcel more productive and to share parking capacity across the Shopping Center.
The purpose of the easement was not limited to conditions as they existed at the time the deed was executed in 1972. By granting a general easement which ran with the land, the deed contemplated meeting the Salas Parcel's needs as they then existed and would exist in the future. Easements contemplate normal development in the use of the land. Westphal v. Kentucky Utilities Co., 343 S.W.2d 367, 371 (Ky. 1960). Therefore, use of an easement can change and become a heavier burden on the servient parcel over time without causing a violation of the easement.
For example, in Cameron v. Barton, 272 S.W.2d 40, 40-41 (Ky. 1954), the Court upheld the change in usage of an easement for a general "right of passway." The easement was originally used by the dominant parcel to access a slaughterhouse, then transitioned to farming use, and currently allowed the Highway Department to move its vehicles, trucks and equipment to and from its garage. Id. Similarly, in Cincinnati, N.O. & T.P. Ry. Co. v. Barker, 247 S.W.2d 943, 946 (Ky. 1951), the use of a railroad easement changed over time with the laying of heavier rail, the use of heavier trains, and transporting heavier loads. Even though these changes damaged an adjoining building, they were allowed under the terms of the easement as normal anticipated industrial development of the land. Id.
The mere fact that an easement creates an economic burden on the serviant property, even if that economic burden has substantially increased over time, does not relieve the serviant property from the obligations of the easement. In Scott v. Long Valley Farm Kentucky, Inc., 804 S.W.2d 15, 16 (Ky.App. 1991), the Court upheld, as a matter of law, the obligation of the serviant parcel to provide spring water to the dominant parcel even where the dominant parcel now had access to city water, made little use of the serviant parcel's provided water, and the cost of maintaining the access to the water was prohibitive. The Court reasoned as follows:
The case at hand involves an easement appurtenant which inheres in the land. When the Scotts purchased the parcel of land, it carried with it, as the dominant estate under existing deed covenants running with the land, the right of enjoyment of the servient estate upon which Blue Springs is located. Likewise, when Long Valley purchased its land, it carried with it the burden or servitude of furnishing the dominant estate with water. We see nothing in the record to authorize the court in its equitable powers to alter these rights. We are of the view the circuit court should have enforced the terms of the easement. It is of no concern that the servient estate suffers an economic burden. Burdens are inherent features of servitudes. It is likewise not relevant that the dominant estate makes little or no use of the servitude, or, for that matter, that there exists an alternative means of enjoyment, such as city water. The relative rights and obligations of the parties herein, by virtue of their ownership of the lands involved, are fixed by existing covenants at the time of their respective acquisitions. We are shown no authority for judicial interference.
Id.
In considering the language of the easement before us, we conclude that it is a general grant which has an expansive reach. By "[granting and conveying to Salas] a perpetual easement over and upon the common parking area of [Postal] for the use and benefit of the customers and invitees of the tenants of [Salas]" the easement allows Salas to use as much of the common area as its customers and invitees might reasonably need, without limitation. We conclude that the circuit court erred in finding that, as a matter of law, Salas materially breached the parking easement by eliminating parking spaces and not being able to satisfy its own parking needs through the use of its own parking lot.
If a limitation or condition was to be placed upon the easement, the parties could have done so through appropriate limiting language. Frisbie v. Bigham Masonic Lodge No. 256, 133 Ky. 588, 118 S.W. 359, 360-361 (1909); Cincinnati, N.O. & T.P. Ry. Co., 247 S.W.2d at 945. An example of appropriate limiting language in an easement for common use of parking in a shopping center can be found in the Florida case of Green Companies, Inc. of Florida v. Kendall Racquetball Investments, Ltd., 560 So.2d 1208 (Fla. Dist. Ct. App. 1990). Its easement specifically provided that the shopping center property owners could not change the ratio of parking spaces they each provided relative to their building's square footage without the prior written consent of the other owners. Id. at 1209. Each owner was required to comply with zoning obligation and could not count the spaces contained in the common parking area in determining the amount of spaces each owner was required to provide. Id. The easement language specifically stated:
It is the intention of the parties that each owner of any portion of the Park will provide a sufficient number of parking spaces on his property in relation to the intended usage of such property and the requirements of lawId. Therefore, Kendall breached the easement provisions when it increased its square footage by approximately 4,000 square feet without the other parties' written consent, did not provide additional parking thus failing to maintain an appropriate parking to square footage ratio, and Kendall's peak daily usage of parking spaces exceeded the number of spaces that it was providing. Id. at 209-211.
without relying upon parking facilities located elsewhere at the Park.
Here, the language of the easement does not require the Salas property to contain a certain number of parking spaces, have enough parking spaces to satisfy its parking needs or limit the size of its building. We will not read limiting language, such as that contained in the Green Companies easement, into the general easement before us. While Postal may find the current parking situation frustrating, it purchased the property subject to this parking easement and the burden it entailed. Accordingly, we determine that the circuit court was in error in finding as a matter of law that Salas' use of the parking lot is unreasonable. Because factual issues remain as to the intent of Lansbrook and Creekside in establishing the cross easements and whether Salas' use under the terms of the easement is reasonable in light of all the changes that have transpired within the Shopping Center as a whole, we reverse and remand.
Because we are reversing, Salas' challenge to the appropriateness of the remedy for the breach is moot. However, we note that Kentucky does not favor forfeiture of an easement based upon misuse. O'Banion v. Cunningham, 168 Ky. 322, 182 S.W. 185, 186 (1916). Instead, a court can grant an injunction and damages where there has been extraordinary or overuse of an easement. Id.; McCarty v. Blanton, 219 Ky. 450, 293 S.W. 958, 959 (1927).
Misuse of an easement right is not sufficient to constitute a forfeiture, waiver, or abandonment of such right. The right to an easement is not lost by using it in an unauthorized manner or to an unauthorized extent, unless it is impossible to sever the increased burden so as to preserve to the owner of the dominant tenement that to which he is entitled, and impose on the servient tenement only that burden which was originally imposed upon it.Penn Bowling Recreation Ctr. v. Hot Shoppes, 179 F.2d 64, 66 (D.C. Cir. 1949) (relying on O'Banion, 168 Ky. 322, 182 S.W. at 186). Penn Bowling Recreation Ctr. further stands for the proposition that determining whether it is possible to separate the overuse from the allowed use is a factual issue left to the trier of fact. Id. at 67-68.
For the foregoing reasons, we reverse and remand.
ALL CONCUR. BRIEFS FOR APPELLANT: John S. Talbott
Lexington, Kentucky
BRIEF FOR APPELLEE: John. P. Brice
Lexington, Kentucky