Opinion
16-P-386
04-04-2017
LYNN WATER AND SEWER COMMISSION v. Christopher M. STEVENS, trustee.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Lynn Water and Sewer Commission (LWSC), appeals following the allowance of a motion for summary judgment filed by the defendant, Christopher M. Stevens, trustee of the Broadway Realty Trust (trust),and an ensuing judgment. LWSC contends that the judge erred in deciding that certain deed covenants were restrictions governed by the thirty-year limitation period contained in G. L. c. 184, § 23. We affirm, albeit for reasons different than those of the judge.
The following facts are undisputed. On December 26, 1974, the city of Lynn sold the property in question to Augustine Luongo, trustee of the Luongo Realty Trust. The deed from the city of Lynn to Luongo contained two covenants, an indemnification covenant and a maintenance covenant.
LWSC is the successor in interest to the city of Lynn. See St. 1982, c. 381.
The indemnification covenant provides: "The Grantee [Luongo] and his heirs and assigns, covenant and agree to save the Grantor [city of Lynn], its heirs and assigns, harmless from any and all claims arising from any flooding of the land of the abutters of Penny Brook and caused by the overflow of the Walden Pond Reservoir, located upstream from the situs."
The maintenance covenant provides: "The Grantee [Luongo] and his heirs and assigns, covenant and agree to maintain, service and repair the existing culvert presently on the bed of the Penny Brook, which brook is included in the above mentioned description; and further, to make any reasonable and necessary additions to said culvert if it be reasonably determined by the City of Lynn as necessary to control the flow of waters from the Walden Pond Reservoir."
On July 19, 1995, Luongo obtained a mortgage on the property from Eastern Bank. On May 21, 1998, Eastern Bank assigned the mortgage to 114 Broadway LLC. Sometime in 2000, 114 Broadway LLC foreclosed on the mortgage. On September 14, 2000, 114 Broadway LLC sold the property to the predecessor trustee of the trust. The deed from 114 Broadway LLC to the trust did not contain the indemnification or maintenance covenants.
In May of 2006, after a rainstorm, LWSC opened a valve to lower the water level of the Walden Pond Reservoir (reservoir) to prevent a breach of the dam. The discharge from the reservoir flooded numerous homes and properties, causing damage to the homeowners. On January 29, 2007, the homeowners filed suit against LWSC alleging negligent operation of the reservoir. On July 22, 2011, judgment entered for the homeowners, awarding $268,500 in damages. This court affirmed the judgment. Bentley v. Lynn Water & Sewer Commn., 83 Mass. App. Ct. 1129 (2013). LWSC paid a total of $456,899.82 in damages and interest.
Relying on the indemnification and maintenance covenants in the 1974 deed, LWSC then filed suit against the trust seeking reimbursement of the damages and interest paid on the judgment to the homeowners. The trust moved for summary judgment on the grounds that the 1974 deed covenants were not conservation restrictions or watershed preservation restrictions, G. L. c. 184, § 31, and were therefore subject to the thirty-year limitation period contained in G. L. c. 184, § 23. LWSC filed a cross motion for summary judgment, arguing that the indemnification and maintenance covenants were conservation or watershed preservation restrictions, and therefore were not subject to the thirty-year limitation period contained in G. L. c. 184, § 23. The judge concluded that the indemnification and maintenance covenants were not conservation or watershed preservation restrictions under G. L. c. 184, § 31. The judge further concluded that if the covenants were not conservation or watershed preservation restrictions, "they must, as recorded restrictions on land, fall within [G. L. c. 184, § ]23."
It is undisputed that if § 23 applies, the covenants ceased to be enforceable thirty years after the date of the deed, two years before the 2006 rainstorm.
On appeal, LWSC abandons the argument that the two covenants are conservation or watershed preservation restrictions. Instead, LWSC now argues that the covenants are not conditions or restrictions within the meaning of G. L. c. 184, § 23, and are therefore enforceable against the trust.
Discussion. "In review of a grant of summary judgment, we proceed de novo upon the same record as did the motion judge." Suffolk Constr. Co. v. Illinois Union Ins. Co., 80 Mass. App. Ct. 90, 93 (2011). "We must determine whether all material facts and questions of law are resolved." Ibid. "When the allowance of summary judgment results from cross motions, we examine the record in the light most favorable to the losing party." Ibid.
The fact that a deed, covenant, or restriction is not a restriction enumerated in G. L. c. 184, § 31, does not mean that the covenant or restriction necessarily falls within the thirty-year limitation period in G. L. c. 184, § 23. Negative restrictions, including negative easements, equitable servitudes, or covenants running with the land, that "compel the person entitled to possession of the land not to use it in specified ways" fall within the purview of § 23. Patterson v. Paul, 448 Mass. 658, 662 (2007), quoting from Labounty v. Vickers, 352 Mass. 337, 347 (1967). Other types of provisions, such as affirmative easements or certain covenants running with the land, are not subject to the thirty-year limitation period. See Patterson v. Paul, supra (concluding view easement is affirmative); Essex Co. v. Goldman, 357 Mass. 427, 432 (1970) (conveyance of land which required maintenance of canals and annual rental payments was covenant that ran with land and was not personal in character).
Which line of cases applies here is a question we do not reach, however. While we may affirm on "any ground apparent on the record that supports the result reached in the [trial] court," Gabbidon v. King, 414 Mass. 685, 686 (1993), it is another matter to reverse on the basis of a theory explicitly disclaimed there. LWSC affirmatively and explicitly waived in the Superior Court any claim that the covenants at issue were covenants that run with the land. "An issue not raised or argued below may not be argued for the first time on appeal." Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (quotation omitted). Accordingly, because LWSC has waived the legal theory that would, if applicable, entitle it to relief, the judgment is affirmed.
LWSC's appellate brief argues that the restrictions are not negative, but proffers no sustained appellate argument that they should be treated as affirmative easements, equitable servitudes, or covenants running with the land. At oral argument, LWSC argued for the first time that the covenants ran with the land. Arguments raised for the first time at oral argument may not be considered. See Santos v. U.S. Bank Natl. Assn., 89 Mass. App. Ct. 687, 700 n.14 (2016) ; Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
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So ordered.
Judgment affirmed.