Opinion
21-P-191
06-10-2022
OVERCREEK LLC [1] v. JOHN R. LECLAIRE & another. [2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This is the second appeal in this matter, which involves the meaning of a view easement contained in a deed for property on Nantucket. The servient deed provides, in relevant part, that the property is "[s]ubject to a permanent and non-exclusive view easement which prohibits any and all structures and/or vegetation with a height greater than eight (8') feet from existing grade upon and over said [l]ot." In the first appeal, a panel of this court concluded that the language of the view easement was ambiguous as to whether it prohibited all structures or only structures greater than eight feet. That panel remanded the matter for the judge to determine the meaning of the language, noting that the judge "may consider extrinsic evidence as well as the language of the deed as a whole to arrive at a reasonable interpretation of the view easement's language." MacLean v. Conservation Comm'n of Nantucket, 93 Mass.App.Ct. 1108 (2018). On remand, a different judge found that the view easement bars all structures regardless of their height. In this appeal, the defendants argue that the view easement allows both vegetation and structures up to eight feet in height. We affirm.
Since this is a case in the nature of certiorari seeking a declaratory judgment, the trier of fact is the judge.
Background.
In 2013, sisters Mary Jane MacLean and Anne Jennings agreed to convey lots for the benefit of their brother, Terrence Moran, and his wife Patricia. Based on a view and the evidence presented at trial, the judge made the following findings, the emphasized portions of which the defendants, the owners of the burdened estate, challenge:
Terrence Moran and Patricia Moran are married. We will refer to them collectively as the Morans and individually by their first names.
"Jennings and MacLean told Terrence of their intention to encumber Lot 24 with the view restriction. They explained that the easement would prohibit any structures on Lot 24."
"[T]he court finds that Jennings, MacLean, and Terrence did discuss the view easements and that Terrence acquiesced, while fully understanding that the easements were intended to prohibit any structures on the encumbered properties he was acquiring."
"Jennings and MacLean told Attorney Dale of their desire that a view easement be created that would burden Lot 24 and benefit the property they were retaining. They told him that the purpose of the easement was to prohibit all structures on Lot 24 and to limit the height of vegetation, all to preserve the existing view toward Hither Creek and the ocean from 341 Madaket Road."
"The court has found as a factual matter that Jennings and MacLean intended for the view easements to prohibit all permanent structures on Lots 24 and 2 6 and that they instructed their attorney who drafted the easement language to effectuate that intention."
Based on these and other findings, the judge found that the view easement "prohibits the construction of any structures of any height."
Discussion.
The proponent of the view easement, here OverCreek, "has the burden of proving its existence, its nature, and its extent" (citations omitted). Martin v. Simmons Props., LLC, 467 Mass. 1, 10 (2014). "[T]he scope of an easement, granted in general terms, has been 'determined by the language of the grant construed in the light of the attending circumstances'" (citation omitted). Pion v. Dwight, 11 Mass.App.Ct. 406, 411 (1981). See Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779 (2002) (if contract "has terms that are ambiguous, uncertain, or equivocal in meaning, the intent of the parties is a question of fact to be determined at trial").
Our law is clear that when interpreting ambiguous language, only the objective manifestations of the parties' intent are relevant. See Hamouda v. Harris, 66 Mass.App.Ct. 22, 25-26 (2006); McLaughlin v. Selectmen of Amherst, 422 Mass. 359, 364 (1996). "What is required, however, is not an actual subjective intent on the part of the grantor but a presumed objective intent of the grantor and grantee based upon the circumstances of the conveyance." Flax v. Smith, 20 Mass.App.Ct. 149, 153 (1985). "[A]ny uncertainty in the construction of a deed is to be construed against the grantor and in favor of the grantee." E. Whitehead, Inc. v. Gallo, 357 Mass. 215, 219 (1970) .
"[W]e accept the judge's findings of fact as true unless they are clearly erroneous" (quotations and citation omitted). Brandao v. DoCanto, 80 Mass.App.Ct. 151, 154 (2011) . A finding is clearly erroneous when "there is no evidence to support it or the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed" (quotations and citation omitted). Mancini v. Spagtacular, LLC, 95 Mass.App.Ct. 836, 839 (2019).
The defendants argue that OverCreek presented no valid extrinsic evidence concerning whether the view easement should be interpreted as barring all structures on the burdened land. They contend that the judge committed an error of law by considering MacLean's and Jennings's after-the-fact testimony as to their subjective intent -- which they contend was unexpressed to the grantees -- at the time of the conveyances. In a footnote, the defendants also challenge the emphasized portions of the findings as unsupported by any record evidence. Because the judge considered the contemporaneous agreement between the sisters and the Morans, these challenges fall short.
Arguments raised in a footnote do not rise to the level of appellate argument. See Boston Edison Co. v. Massachusetts Water Resources Auth., 459 Mass. 724, 726 n.3 (2011). Because the challenges to the factual findings are intertwined with the errors of law that the defendants argue, we consider them.
This was an intrafamilial transaction on amicable terms so there is no written negotiation history or other documents other than the purchase and sale agreements and the deeds themselves. The Morans had little or no memory of the events in question, leaving the testimony of Jennings and MacLean, which the judge credited. See Demoulas v. Demoulas Super Mkts., 424 Mass. 501, 509-510 (1997) (factfinder in best position to judge weight and credibility of evidence).
It is true that much of the testimony concerned the sisters' subjective intent and sometimes unhelpfully used vague terms such "view easement" and "it" or "this." Jennings confirmed that the intent of the sisters was to preserve the view from her mother's bedroom: "we did not want to have any structures on this property." She further testified that she talked about "it" with the Morans and that "it" would be included and that she and her sister "wanted to have this to protect a view easement." MacLean also testified that they were "[t]rying to achieve an unobstructed view with no -- no structures -- unobstructed view from the bedroom window to the ocean." The view at that time was of vegetation and did not include structures.
The findings of fact are not clearly erroneous because of the pivotal testimony by Jennings that Terrence was in agreement that no structures would be built on the lots in question. Jennings described the sisters' intent to be "to preserve the view" from her mother's bedroom because her mother "loved that view, and so we were doing it for that reason, and also just not to have anything on that property that would impact the view." Jennings then testified, "I did tell Terry this was what we were going to do," and his response was, "Fine." She was then asked, "Was the agreement that he would increase the footprint [of his house] but it would not extend onto Lot 24 in any way?" She answered, "Correct." In other words, Jennings testified to, and the judge credited, a contemporaneous objective agreement between the grantors and the grantees that no structures would be built on the property in question.
This finding is sufficient to support the judgment and also is bolstered by the findings concerning the sisters' subjective intent. The sisters' intent was relevant to determining what they discussed with the Morans and with the sisters' lawyer when they discussed the view easement. Jennings testified that "it was my express intent, as shared with my sister, Mary Jane MacLean, to prohibit 'any and all structures' and to also prohibit 'vegetation with a height greater than 8 feet from the existing grade upon and over Lot 24 and Lot 26 of the adjoining [burdened] property, thereby preserving the unique natural and unobstructed view from the MacLean/Jennings property in the westerly direction toward Hither Creek and the Atlantic Ocean.'" The judge may draw reasonable inferences from the testimony and it was reasonable for the judge to infer that when the sisters discussed the matter with their lawyer and the Morans, the sisters stated their intent at that time. See Demoulas, 424 Mass. at 510.
In determining what an ambiguous contract term means, our case law allows oral testimony of what the parties meant. See Sax v. Sax, 53 Mass.App.Ct. 765, 771-772 (2002) ("Accordingly, if the language is ambiguous, 'extrinsic evidence bearing upon the background and purpose of the parties, as well as their understanding of the meaning of particular language [they] used . . . may be considered both in the construction of ambiguous . . . language and in resolving uncertainties in applying the terms of the written contract to the subject matter'" [citations omitted]); Sleeper v. Nicholson, 201 Mass. 110, 113 (1909) (affirming trial court's interpretation of ambiguous property exchange agreement, where "the plaintiff was allowed against the objection and exception of the defendant to introduce testimony of conversations between the plaintiff and the defendant, and the broker and the defendant before the agreement was executed"). Given this valid evidence of the parties' contemporaneous intent, we need not default to general rules of construction of a deed.
Judgment affirmed.
The panelists are listed in order of seniority.