Opinion
18-P-977
09-12-2019
May LUO v. CITY OF BOSTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, May Luo, appeals from an order granting summary judgment to the city of Boston (city). Luo argues that the Land Court judge erred in determining that certain restrictions in a deed for a property located at 187 Calumet Street in Boston (property) did not create an unreasonable restraint on alienation. We affirm.
The city did not file a brief in this appeal.
Background. We summarize the undisputed facts from the summary judgment record. On August 19, 1991, the city conveyed the property to Robert Kean (Kean deed), as part of the "Yard Sale Program." Through the program, the city conveyed small parcels of land to abutting city residents' property, restricting the land to use as open space. The Kean deed mandated the property be used for "open space purposes" and prohibited building, except for an addition to the dwelling located on an abutting lot. Kean also granted a mortgage on the property to the city in which he secured his compliance with the restrictions.
The Kean deed provided "no structures are to be erected, constructed, or installed upon the premises; whether permanent or temporary in nature; provided however, notwithstanding any term [or] provision to the contrary contained herein, the Grantee may construct[ ] upon the premises an addition to the existing dwelling unit located at [the abutting property]."
Kean covenanted and agreed on behalf of himself (and his heirs, assigns, devisees, administrators, executors, legal representatives, successors, and assigns) "to perform all of the covenants, restrictions, and conditions contained or referenced in this Mortgage, the Purchase and Sale Agreement and the Deed, the terms of which are expressly incorporated."
On March 10, 2010, the executor of Kean's estate conveyed the property to Luo (Luo deed) for one dollar. The Luo deed provided the same restrictions set forth in the Kean deed, as well as a statement that the restrictions were "for the benefit and use of the City of Boston." Luo also granted a mortgage to the city in which she agreed to perform the covenants, restrictions, and conditions in the Kean deed.
On July 25, 2016, Luo filed an action for declaratory judgment, arguing the Luo deed restrictions violate public policy because they impose an unreasonable restraint on alienation pursuant to the Restatement (Third) of Property §§ 3.4 and 3.5. The city then moved for summary judgment. After a hearing, the Land Court judge granted summary judgment for the city. In her decision, the judge addressed the Restatement and, relying on the factors cited in Franklin v. Spadafora, 388 Mass. 764, 766-767 (1983), determined that the restrictions did not impose an unreasonable restraint on alienation.
Discussion. Summary judgment is appropriate if "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). Our review is de novo, viewing the evidence in the light most favorable to the nonmoving party. See Surabian Realty Co. v. NGM Ins. Co., 462 Mass. 715, 718 (2012).
On appeal, Luo argues that the judge incorrectly applied the Franklin factors. Those factors, although not dispositive, "tend to support a conclusion that the restraint [on alienation] is reasonable: ‘1. the one imposing the restraint has some interest in land which he is seeking to protect by the enforcement of the restraint; 2. the restraint is limited in duration; 3. the enforcement of the restraint accomplishes a worthwhile purpose; 4[.] the type of conveyances prohibited are ones not likely to be employed to any substantial degree by the one restrained; 5. the number of persons to whom alienation is prohibited is small.’ " Franklin, 388 Mass. at 766, quoting Restatement (First) of Property § 406 comment i (1944). These factors "must be examined in light of all the circumstances." Franklin, supra. Assuming the Franklin factors apply, we disagree that they were misapplied.
Luo also asserts that the judge "failed to weigh the utility of the restraint against the injurious consequences of enforcing the restraint." This is the reasonableness test put forth in Restatement (Third) of Property § 3.4 comment c (2000). Luo later states that the facts "are clearly disputed" as to the issue of utility. We first note that Luo did not dispute anything in the city's statement of material facts. She did add four additional facts without any response whatsoever from the city. Nevertheless, Luo's basic assertion, without more, does not meet the standards of a sufficient appellate argument and is waived. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). We cite to the Massachusetts Rules of Appellate Procedure in effect during the relevant time period. The Rules were wholly revised, effective March 1, 2019, primarily for stylistic and organizational purposes. See Mass. R. A. P. 1, Reporter's Notes -- 2019. The substantive requirements of Rule 16 at issue in this case are unchanged. See Mass. R. A. P. 16, as amended, 481 Mass. 1606 (2019).
We note that the Supreme Judicial Court in Franklin relied on Restatement (First) of Property § 406 comment i, which employs a different reasonableness test than the Restatement (Third) of Property § 3.4, on which Luo relied. See Franklin, 388 Mass. at 766-767. Because Luo argued the judge improperly applied the Franklin factors on appeal, we address that argument.
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Here, the circumstances demonstrate the restraint is reasonable. The judge correctly determined the city has an interest in the property both as the original grantor of the property and as the benefited party under the "Yard Sale Program." Indeed, Luo admitted that the Luo deed restrictions are for the city's "benefit and use" and that "[o]pen space serves a valuable public purpose to the [c]ity and Boston residents." Moreover, it is undisputed that the restrictions accomplish the worthwhile purpose of "open space" and "the preservation of reasonable density in Boston neighborhoods." The fact that a different use of the property might serve a different worthwhile purpose is beside the point. As for duration, as in Franklin, the restraint is not limited in duration but, as also in Franklin, the parties could negotiate a different agreement at any time. See Franklin, 388 Mass. at 767-768. Finally, and importantly, the restrictions in the Luo deed and mortgage do not actually prohibit alienation. The restrictions prohibit only certain conduct, namely building a separate building (the deed does permit an addition to the existing dwelling at 236 Parker Hill Avenue). Therefore, taken together, and viewing the evidence in the light most favorable to Luo, we conclude that there is no genuine issue of material fact whether the restraint imposed by the deed restrictions is reasonable under Franklin.
Judgment affirmed.