Opinion
19-P-1626
11-12-2020
GARY M. SULLIVAN & another, trustees, v. THE 603 HIGH STREET CONDOMINIUM & others; MICHAEL PIERCE & others, third-party defendants.
NOTICE: 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
The plaintiff trustees, Gary M. Sullivan and Kerry A. Sullivan, of the GKS Nominee Trust (trust), filed an action in the Superior Court against the defendant condominium owners seeking, inter alia, a declaration that the trustees had reserved an easement to use a parking space in the condominium's common driveway. A Superior Court judge allowed in part the defendants' motion for summary judgment, concluding that the trustees did not have an easement to use the space, but rather retained only the limited rights reserved in the master deed. The trustees appeal therefrom. We affirm.
Background. We recite the relevant facts from the summary judgment record in the light most favorable to the nonmoving party. As set forth in the master deed, the trustees, as declarant, created the 603 High Street Condominium (condominium) located at 603 High Street in Medford. The condominium consists of a single building with two residential units. There is a garage and common driveway located on the premises. Section 13 of the master deed, captioned "Reserved Rights," states as follows:
"The Declarant hereby reserves the right to hold and in the future, transfer that area/parking space shown on the Site Plan attached as the 'Reserved Space.' The Declarant shall be permitted to transfer Exclusive Use of the Reserved Space to no one other than a unit owner of the Condominium. No amendment to any of the Condominium Documents, or any other instrument, which alters this right shall be of any force and effect unless the same has been consented to in writing by the Declarant, or Declarant's successors or assigns."The site plan for the condominium depicts an approximately ten by twenty foot "Reserved Space" on the common driveway, adjacent to the condominium building.
The trustees sold unit one of the condominium to Bertrand P. Gouffault and Lauren P. Gouffault on April 20, 2017, and sold unit two to Kerry A. Herlihy on April 10, 2017 (collectively, unit owners). Trustee Gary Sullivan parked his vehicle in the Reserved Space on at least one occasion following the unit owners' purchase of their respective units. On November 28, 2017, the unit owners, through counsel, sent Sullivan a "Notice of No Trespass," forbidding him from entering the condominium's property.
In the quitclaim deed, Ms. Gouffault's name is listed as "Lauren R. Gouffault"; however, we use the spelling that appears in the complaint, "Lauren P. Gouffault," for consistency.
The trustees commenced this action against the condominium and the unit owners seeking a declaratory judgment that (1) the trustees had the right to park in the Reserved Space until they transferred that right to one of the unit owners, and (2) the unit owners did not have the authority to interfere with this right or to use the Reserved Space. The trustees also brought a trespass claim. The trustees' subsequent motion for preliminary injunctive relief was denied.
The defendants brought counterclaims for declaratory relief, misrepresentation, and violations of G. L. c. 93A, which were not included in their motion for summary judgment and are not the subject of this appeal. The defendants also brought a G. L. c. 93A claim against the third-party defendants Michael Pierce and Matthew Pierce, individually and in their capacity as owners of Pierce Properties Real Estate, LLC. Neither the defendants' counterclaims nor their third-party claim have been resolved.
The parties filed cross motions for summary judgment. In a written decision, the judge determined that the language in the "Reserved Rights" section of the master deed was unambiguous, and reserved to the "declarant, i.e. the trust, the 'right to hold and in the future, transfer' the [R]eserved [S]pace." The judge further concluded, however, that the language did not expressly or impliedly create an easement in favor of the trustees.
The third-party defendants neither joined nor opposed either of the summary judgment motions.
Discussion. 1. Premature appeal. As a threshold procedural issue, we note that there remain unresolved claims between the parties and no final judgment has issued pursuant to Mass. R. Civ. P. 54 (a) or (b), 365 Mass. 820 (1974). See Harrison v. Roncone, 447 Mass. 1001, 1001-1002 (2006) ("Where, as here, a case involves multiple claims and multiple parties, a judgment dismissing fewer than all of the claims or parties is interlocutory and . . . [is] not immediately appealable absent a 'determination [by a judge in the trial court] that there is no just reason for delay and upon an express direction for the entry of [final] judgment'" [citation omitted]). We nevertheless exercise our discretion to treat the appeal as properly before us because the issues have been fully briefed and argued. See ZVI Constr. Co., LLC v. Levy, 90 Mass. App. Ct. 412, 418 (2016); Scannell v. Attorney Gen., 70 Mass. App. Ct. 46, 47 n.2 (2007).
2. Summary judgment. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). We review a summary judgment decision de novo. See Chamberlain v. Badaoui, 95 Mass. App. Ct. 670, 673 (2019).
The fundamental issue on appeal is whether, by reserving the "right to hold and in the future, transfer" the Reserved Space, the trustees created an easement in gross. The trustees argue that "to hold" "includes the right to possess and the right to occupy" and if they "hold/possess" the Reserved Space then they must be able to enter and use the space, creating an easement in gross. According to the trustees, because section 13 of the master deed reserves the right to, in the future, "transfer Exclusive Use of the Reserved Space," this implies that they currently have exclusive use of the space. Finally, the trustees argue that because they reserved an easement in gross over the Reserved Space, it necessarily follows that the unit owners are trespassing on the trustees' parking space. We disagree with the trustees' analysis.
A deed is interpreted according to the "basic principle" that its "meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances." Patterson v. Paul, 448 Mass. 658, 665 (2007), quoting Sheftel v. Lebel, 44 Mass. App. Ct. 175, 179 (1998). An easement created by deed is interpreted with "the same considerations." Patterson, supra at 665. "Where the language of the master deed is clear and unambiguous, the inquiry need go no further." Chamberlain, 95 Mass. App. Ct. at 674.
"An affirmative easement 'creates a nonpossessory right to enter and use land in the possession of another.'" Patterson, 448 Mass. at 663, quoting Restatement (Third) of Property (Servitudes) § 1.2(1) (2000). An easement in gross is "a personal interest in or right to use land of another." McLaughlin v. Board of Selectmen of Amherst, 422 Mass. 359, 364 (1996). "It is . . . well-settled that a developer may reserve nonownership interests in condominium property without conflicting with G. L. c. 183A." Busalacchi v. McCabe, 71 Mass. App. Ct. 493, 496 (2008). See Commercial Wharf E. Condominium Ass'n v. Waterfront Parking Corp., 407 Mass. 123, 128-129 (1990) (Commercial Wharf).
We agree with the judge that the language of section 13 of the master deed is unambiguous; it reserves to the trustees, as declarant, "the right to hold and in the future, transfer" the Reserved Space. There is no explicit grant of an easement in gross contained in section 13 of the master deed. Contrary to the trustees' argument, reserving the right "to hold," as meaning "to possess," does not expressly reserve an easement in gross because, as with all easements, an easement in gross is a nonpossessory right. See Busalacchi, 71 Mass. App. Ct. at 496. Further, there is also no language in section 13 reserving the right to enter and use the Reserved Space. Compare, e.g., Commercial Wharf, 407 Mass. at 133 (concluding developer retained easement where, inter alia, "Declaration" granted "non-exclusive right and easement to use the Condominium Land" to owners of retained land); Rauseo v. Board of Assessors of Boston, 94 Mass. App. Ct. 517, 518 (2018) (master deed provided "that the parking easements shall be easements in gross"); Schwartzman v. Schoening, 41 Mass. App. Ct. 220, 221-223 (1996) (condominium master deed reserved "exclusive use" of parking spaces to such unit as designated in unit deed, creating appurtenant easement).
We recognize that the judge did not resolve the meaning of the words "to hold and in the future, transfer" the Reserved Space in her decision on the summary judgment motion. On the record before us, we are not in a position to make that determination. We hold only that the unambiguous language of section 13 of the master deed does not grant an easement in gross to the trustees allowing them to enter and use the Reserved Space. Because we conclude that the trustees do not have an easement in gross, we do not reach the claim of trespass.
At oral argument, the defendants stipulated that these open questions -- (1) what is meant by the language in the master deed that states "to hold and in the future, transfer," and (2) which party, if any, may use the Reserved Space -- may be addressed by the judge in the ongoing action pending in the Superior Court.
What "to hold" means in this context and who has the right to use this space under a different legal theory is not before us. See note 8, supra.
The defendants' request for attorney's fees and double costs on the ground that this appeal is frivolous is denied.
Order entered September 9, 2019, affirmed.
By the Court (Blake, Massing & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 12, 2020.