Opinion
2016-P-0682
06-13-2017
James CHUTE, trustee v. RETALS, LLC and another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff claims parking rights attained by prescriptive easement on a private way in the Beacon Hill neighborhood of Boston. We affirm the Land Court's entry of a judgment of dismissal, concluding that this matter was stripped of any "actual controversy" when the Superior Court determined in another case that the plaintiff's deeded easement pertains to precisely the same parking space that he claims by prescription.
Background. The plaintiff, James Chute, as trustee of the Chute Hall Securities, Ltd., Trust (Chute) is the record owner of unit 2 of the 2 Otis Place Condominium on Beacon Hill. Chute's predecessor, George Fanning, lived at 2 Otis Place from approximately 1951 until his death in 2015.
When Fanning first moved into the building, he rented his unit. In 1964, Fanning bought the building. In 1987, Fanning sold the building, and it was converted to condominiums during that same year. In connection with the same sale and condominium conversion, Fanning's unit, unit 2, was deeded back to him. Fanning's deed to unit 2 states that it includes "[a]n easement for the exclusive use of parking space B as shown on the site plan recorded with the [c]ondominium [m]aster [d]eed." In a deed dated May 31, 2002, Fanning conveyed Unit 2 to Chute, reserving a life estate in himself. Fanning's deed to Chute, dated May 31, 2002, includes the identical easement for use of parking space "B."
In 1992, unit 1 of the building was conveyed to Cameron Hall. Hall's unit deed included "an easement for the exclusive use of [p]arking [s]pace A as shown on the site plan recorded with the [m]aster [d]eed, or any other designation of the parking space which was not given as an exclusive easement to [u]nit 2." In October, 1997, the defendant Retals, LLC (Retals) obtained title to unit 1.
Retals also took title to units 3, 4, and 5.
As described above, the respective deeds to unit 1 and unit 2 reflect that unit 1 was conveyed with an exclusive easement to park over parking space A and unit 2 was conveyed with an exclusive easement to park over parking space B as those spaces are shown on a site plan. The site plan described in the deeds, however, does not exist or has been lost.
Language in the master deed is consistent with the unit deeds to unit 1 and unit 2. The master deed states that the condominium common areas include parking spaces, provided, however, that "two (2) [u]nits ( [u]nit 2 and an as yet undesignated unit) shall each have as appurtenant thereto an easement for the exclusive use of a parking space shown in the site plan and as designated in the first [u]nit [d]eed of the respective [u]nits by the [d]eclarant."
Otis Place is a private way off Mount Vernon Street. The way makes a ninety-degree turn at the corner of the condominium building, where there is a curved curb. The parking area in front of the building is comprised of parallel parking and directly abuts the curved curb where Otis Place takes a ninety-degree turn.
When viewed from a vantage point looking at 2 Otis Place, one parking space is in front of the left half of the building and the other is in front of the right half of the building. The parking space to the left abuts the curved curb at the ninety-degree turn. Fanning's testimony at trial was clear that he always used the parking space on the right—in other words, he used the parking space furthest away from the corner.
There is a long history of litigation between Retals and the 2 Otis Place Condominium Trust (trust) and Chute and Fanning. In consolidated cases filed in Superior Court (collectively, the "Superior Court case"), the parties heavily litigated damages resulting from a bedbug infestation that allegedly originated in Fanning's unit.
The respective parking rights of the parties became an issue in the Superior Court case when Retals sought and obtained a preliminary injunction enjoining Chute from interfering with Retals's right to use one-half of the available parking area adjacent to the building. The Superior Court case proceeded through trial on numerous claims and counterclaims, including Retals's count for a declaratory judgment with respect to its parking rights as conveyed by the unit deed to unit 1.
After a jury trial held July 8 through July 18, 2014, a Superior Court judge ordered entry of declaratory judgment for Retals, "declaring that [u]nit 1 has an easement for the exclusive use of the parking space on the left side of the parking area along the curb in front of 2 Otis Place, measuring [seventeen] feet from the curb at the intersection." The Superior Court judge ordered entry of a permanent injunction enjoining Chute from "interfering with Retals' or its tenants' use of this parking space."
Judgment entered on the Superior Court docket on May 19, 2015. The judgment was not initially subject to appeal, however, due to motions brought by Retals and the Trust for judgment notwithstanding the jury verdict on a nonparking-related counterclaim brought by Fanning. See Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013).
Meanwhile, in the Land Court case, the judge initially entered a judgment of dismissal, dated February 28, 2014, as to the entirety of Chute's amended complaint due to the judgment in the prior pending action in the Superior Court. See Mass.R.Civ.P. 12(b)(9), as amended, 450 Mass. 1403 (2008). After Chute moved for reconsideration, however, the Land Court amended its judgment of dismissal to allow count II, for prescriptive easement, to proceed in Land Court. At the same time, Fanning was allowed to intervene in the Land Court case as a plaintiff.
The Land Court judge reasoned that count II should be permitted to proceed because there was no count for prescriptive easement pending in the Superior Court. We note, however, that the purpose of Mass.R.Civ.P. 12(b)(9) is to avoid claim-splitting, and a party to one action generally should not be permitted to raise a claim in a separate action where that claim was available as a defense in the first action. See Yentile v. Howland, 26 Mass. App. Ct. 214, 216 (1988).
On January 26, 2015, a one-day trial was held in the Land Court. Subsequent to the trial, Fanning died, and a suggestion of death was filed in both cases on September 28, 2015.
This date is after the jury trial held in the Superior Court case but before the Superior Court judge issued her findings, rulings, and order.
On December 18, 2015, the Land Court judge issued her written decision, followed by a final judgment of dismissal dated March 3, 2016, reasoning that: (i) there was no justiciable controversy between the parties because the Superior Court had already determined that Chute holds the same seventeen-foot long parking space by deed that he was claiming by prescriptive easement; and (ii) in any event, Chute failed to establish the elements of a prescriptive easement.
According to the publicly available Superior Court docket, the defendants' motions for judgment notwithstanding the verdict in the Superior Court case were resolved on March 24, 2017, commencing the appeal period in that case. On April 12, 2017, Retals filed a notice of appeal in the Superior Court case. Chute has not filed any notice of appeal in the Superior Court matter.
An appellate court may take judicial notice of court records in a related action involving the same parties. See Brookline v. Goldstein, 388 Mass. 443, 447 (1983).
Discussion. 1. Justiciable Controversy. Chute's amended complaint alleges that Chute has acquired a parking easement by prescription and seeks "equitable relief." The Land Court judge construed this count as "seeking a declaration" as to whether Chute obtained parking rights by prescription.
General Laws c. 231A § 1, empowers the Land Court to issue declaratory judgments "in any case in which an actual controversy has arisen and is specifically set forth in the pleadings." Accordingly, the Land Court judge was correct to dismiss Chute's claim if no "actual controversy" was presented. See Alliance, AFSCME/SEIU, AFL-CIO v. Commonwealth, 425 Mass. 534, 536-537 (1997) (stating an "actual controversy" "between the parties" is a "predicate of jurisdiction" under G. L. c. 231A, § 1 ).
Even if Chute's claim was characterized in some way other than as a declaratory judgment action, the case was properly dismissed as moot for the same reasons described below. See Boston Herald, Inc. v. Superior Court Dept., 421 Mass. 502, 504 (1995) ("It is the general rule that courts decide only actual controversies. We follow that rule, and normally do not decide moot cases").
Originally, Chute contended that he held an exclusive parking easement over an area measuring twenty feet in length. A parking space of that length would physically intrude on the area to which Retals holds an exclusive easement as determined by the Superior Court judge. Accordingly, such a claim would have established a true controversy separate and apart from the deed interpretation case that had been presented to the Superior Court. The testimony Chute offered at trial, however, did not support his position that he was entitled to a twenty-foot parking space. Accordingly, after trial, Chute properly conceded that he only seeks a declaration as to a seventeen-foot parking space, located on the right side of 2 Otis Place, when viewed while looking at the building.
More specifically, Chute claimed, "there is no room for two legal, safe, and useful parking spaces in front of 2 Otis Place."
Retals's counsel established, through introduction of the owner's manual for Fanning's 1964 Ford Falcon and testimony, that the car Fanning parked for decades in front of the building was 181.7 inches long, which is just over fifteen feet. Chute's civil engineer testified that it was "theoretically" possible to park a fifteen-foot car in a seventeen-foot space. Fanning did not provide any testimony suggesting that he regularly required more than seventeen feet to park his car. Instead, Fanning testified that he and the other persons who parked cars along Otis Way (including those at the adjacent building) worked cooperatively to fit the cars in, by sharing keys, by leaving their cars in neutral so they could be pushed slightly in order to accommodate another car without bumping, and by responding to telephone calls to move cars. Finally, Fanning also testified that for many years his neighbor in unit 1 had a two-door coupe, so he had no trouble getting in and out of his designated space.
In his oral comments opposing Retals's immediate posttrial motion to dismiss, Chute's attorney stated on the record that, "[t]he intent of this case is to establish that at least unit two has at least a seventeen-foot spot." And, in his proposed findings of fact, Chute requested a finding that he has "an easement by prescription to a [seventeen-foot] long by [eight-foot] wide parking space on [t]rust common area directly in front of 2 Otis Place along the curb of Otis Place beginning at its property line with 1 Otis Place and going back Westerly along the curb [seventeen feet]."
This is precisely the same parking space that the Superior Court judge found was granted to Fanning (and, thereafter, to Chute) by operation of the parties' respective deeds. The Superior Court judge found as a fact that "[t]he length of the curb in front of the building running from the property line between 1 Otis Place and 2 Otis Place to the end of the curb, which is available for parking, is [thirty-four] feet and can accommodate two cars." She also expressly determined that "[u]nit 2 was granted an easement for the exclusive use of the right side of the parking area along the curb in front of 2 Otis Place, [p]arking [s]pace B, and that [u]nit 1 was granted an easement for the exclusive use of the left side of the parking area along the curb in front of 2 Otis Place, [p]arking [s]pace A."
The measurement of thirty-four feet is consistent with the testimony of Chute's own engineer in the Land Court case, who testified that the 2 Otis Place has thirty feet of frontage and that the curb line from the corner to the party wall between 2 Otis Place and 1 Otis Place is thirty-four and four-tenths feet. Moreover, Fanning testified in the Land Court case that his understanding was that he was deeded one-half of the available parking space.
The Superior Court judge then held that Retals was entitled to a declaration that "[u]nit 1 has an easement for the exclusive use of the parking space on the left side of the parking area along the curb in front of 2 Otis Place, measuring [seventeen] feet from the curb at the intersection." Because the length of the available curb in front of 2 Otis Place is thirty-four feet, and because the judge expressly found that Chute's unit was deeded with an easement over the parking space on the right, the clear implication of the Superior Court judge's decision is that Chute's deeded parking space is comprised of the seventeen feet situated furthest from the curved corner at the intersection.
Accordingly, based on the Superior Court judge's decision, the Land Court judge correctly held that there was no justiciable controversy between the parties as to whether Chute owns an easement over the very same seventeen-foot parking space that the Superior Court had already declared that he owns by deed.
On appeal, Chute argues that his claim in Land Court was different from his claim in Superior Court because the rights he seeks by prescription are greater than or different from his deeded rights. More specifically, he argues that the Superior Court's declaration actually means that Retals and Chute each holds an easement over half of the available parking space adjacent to 2 Otis Place, regardless of the total length of that space. Thus, he argues, if the city of Boston were to take action to restrict parking on Otis Place based on applicable regulations, the Superior Court judge's ruling would require that the two parking spaces be diminished in equal proportions. A right to a specific space acquired by prescription, he argues, could not later be reduced in size.
The Superior Court judge, however, addressed this very issue. She wrote in her findings and rulings as follows:
"The court does not credit Chute's argument that it is impossible for Retals to have a [seventeen] foot easement for parking on the left side of the parking area, running in front of the building from the curb at the intersection where Otis Place makes a [ninety-]degree turn and heads toward Mt. Vernon Street, because the [c]ity of Boston's [t]raffic [r]ules and [r]egulations prohibit parking within [twenty] feet of an intersecting way. First, because Otis Place is a private way, the city's parking regulations may not be enforced on Otis Place. Second, even if such regulations do apply, their existence does not prevent the grant of this easement to [u]nit 1 for the exclusive use of this private property of the [t]rust. If such parking regulations were to be enforced, [u]nit 1 would simply lose its right to use its easement" (emphasis supplied).
Whether the Superior Court judge's interpretation of the parties' deeds was correct is an issue not now before us. For purposes of determining whether an actual controversy was presented in the Land Court matter, however, we find Chute's interpretation of the Superior Court decision to be implausible. Moreover, the possibility that the city of Boston might, in the future, enforce a parking regulation that would have the effect of diminishing the availability of parking space on Otis Way is merely hypothetical and does not give rise to an "actual controversy."
The Superior Court judge also stated that, "[g]iven that the entire parking area along the curb measures [thirty-four] feet, such space shall be divided equally between the units, such that the length of [p]arking [s]pace A and [p]arking [s]pace B shall each be [seventeen] feet."
An "actual controversy" is "a real dispute caused by the assertion by one party of a legal relation, status or right in which he has a definite interest in the subject matter, where the circumstances attending the dispute plainly indicate that unless the matter is adjusted such antagonistic claims will almost immediately and inevitably lead to litigation." Bunker Hill Distributing, Inc. v. District Attorney for Suffolk County, 376 Mass. 142, 144 (1978), quoting from School Comm. of Cambridge v. Superintendent of Schs. of Cambridge, 320 Mass. 516, 518 (1946). The controversy must be present and concrete, not speculative. See Bunker Hill, supra at 145; Boston Herald, Inc. v. Superior Court Dept., 421 Mass. 502, 504 (1995) ; Libertarian Assn. of Massachusetts v. Secretary of the Commonwealth, 462 Mass. 538, 547 (2012).
Here, nothing in the record suggests that the Superior Court judge's decision was inadequate to put an end to the parties' parking dispute. The judge allocated to Fanning and Chute the same seventeen-foot parking space they sought in the Land Court case. Moreover, there is no suggestion that Retals has interfered with Chute's use of that space. Any theory that Chute's deeded rights could someday fail, requiring him to seek an alternative basis for asserting an exclusive easement (i.e., prescription), is entirely speculative and hypothetical. Accordingly, once the Superior Court judge acted there was no longer a live controversy between the parties and the Land Court case was correctly dismissed.
2. Res Judicata. Chute argues, however, that the Land Court should not have relied on the Superior Court judgment because it was not subject to appeal at the time the Land Court ruled, and thus, it was not a "final" judgment for purposes of res judicata. See Jarosz v. Palmer, 49 Mass. App. Ct. 834, 837-838 (2000) This argument is flawed for two reasons. First, the Land Court did not employ res judicata principles to dispose substantively of an issue or claim presented by Chute. Instead, the Land Court ordered the case dismissed because Chute did not satisfy the jurisdictional prerequisite of an "actual controversy" found in the declaratory judgment statute. See G. L. c. 231A, § 1.
Second, even if Chute is correct and the law of res judicata should be applied to this question, all posttrial motions filed in the Superior Court matter have since been resolved, rendering the Superior Court's judgment capable of appeal. See Mass. R.A.P. 4(a ). The fact that certain parties have filed a notice of appeal in the Superior Court case does not deprive the Superior Court's judgment of preclusive effect—the judgment is now "final" for purposes of res judicata. See O'Brien v. Hanover Ins. Co., 427 Mass. 194, 201 (1998).
Although it may have been preferable if the Land Court had not entered judgment until a date after the appeal period commenced in the Superior Court case, no practical purpose would be served by remanding this case to the Land Court simply so it can now enter a new judgment that postdates the date the Superior Court appeal period commenced.
3. Elements of Prescription. As an alternative basis for her judgment of dismissal, the Land Court judge found that Chute did not meet his burden of establishing a prescriptive easement as to any area outside of the seventeen-foot parking easement described in the Superior Court decision. Although we agree with the judge's assessment of the evidence (see note 9, supra ), we affirm on the separate ground that Chute expressly and voluntarily waived any claim to a parking space larger than seventeen feet in length, as described above. See note 12, supra.
We decline to affirm the Land Court's judgment of dismissal on the substantive ground that a prescriptive easement was not established because, had there been a live controversy presented to the Land Court, the court normally would have been obligated to resolve that controversy by declaring the rights of the parties rather than dismissing the case. See Boston v. Massachusetts Bay Transp. Authy., 373 Mass. 819, 829 (1977) ( "We emphasize that when an action for declaratory relief is properly brought, even if relief is denied on the merits, there must be a declaration of the rights of the parties").
4. Fees. The defendants seek double costs and attorneys' fees. Because of the unusual procedural posture of this case wherein two theories regarding the same parking rights were tried in two different courts, we conclude that it would be inappropriate to deem Chute's insistence on litigating this appeal to be wholly frivolous. The defendants' request for double costs and attorneys' fees pursuant to Mass. R.A.P. 25, as appearing in 376 Mass. 949 (1979), is denied.
Judgment affirmed.