412 S. Broadway Realty, LLC v. Wolters

• Citation: 147 A.3d 417,169 N.H. 304
• Decision Date: 23 August 2016
• Docket Number: No. 2015-0498,2015-0498
• Parties: 412 SOUTH BROADWAY REALTY, LLC & a. v. John M. WOLTERS, Jr. & a.
• Court: Supreme Court of New Hampshire

169 N.H. 304

147 A.3d 417

412 SOUTH BROADWAY REALTY, LLC & a.

v.John M. WOLTERS, Jr. & a.

No. 2015-0498

Supreme Court of New Hampshire.

Argued: June 14, 2016

Opinion Issued: August 23, 2016

Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Michael J. Tierney on the brief and orally), for 392 South Broadway LLC.

Cleveland, Waters and Bass, P.A., of Concord (David W. Rayment and Mark S. Derby on the brief, and Mr. Rayment orally), for John M. Wolters, Jr. and Steven M. Lospennato.

Johnson & Borenstein, LLC, of Andover, Massachusetts (Mark B. Johnson and Kathleen M. Heyer on the brief, and Mr. Johnson orally), for Emmett Horgan, Trustee of the FUN Trust.

412 South Broadway Realty, LLC and Salem Rockingham, LLC filed no brief.

LYNN, J.

Defendants John M. Wolters, Jr. and Steven M. Lospennato (hereinafter "defendants") appeal multiple orders of the Superior Court (Wageling, J.) ruling that their property was not benefited by a deeded right-of-way over several other properties and finding them liable for abuse of process. The third-party defendant, Emmett Horgan, Trustee of the FUN Trust (FUN Trust), cross-appeals, arguing that the trial court erred in finding that the defendants had not committed slander of title and in calculating the damages award for the trust's abuse of process claim. We affirm in part, vacate in part, and remand.

I

The trial court found, or the record supports, the following facts. This case involves the defendants' alleged entitlement to travel across several properties in Salem in order to access Route 28. The defendants own the property located at 16 Garabedian Drive, and claim to have a deeded right-of-way to travel from their property eastward, across State-owned railroad tracks and continuing across the southernmost section of two parcels of land owned by Cumberland Farms, Inc. and 392 South Broadway, LLC respectively. The Cumberland Farms property abuts the railroad on its western boundary and 392 South Broadway's property to the southeast. 392 South Broadway's property is bounded on the north and west by the Cumberland Farms property and Route 28 on the east. The travel way across these properties is known as Cuomo Drive.

This case was instituted, in 2009, by plaintiffs 412 South Broadway Realty, LLC and Salem Rockingham, LLC, which owned property located just to the south of Cuomo Drive, against the defendants and Cumberland Farms. 412 South Broadway, whose property abuts Cuomo Drive on its northern boundary, alleged that the defendants were crossing onto its property and unlawfully expanding the right-of-way located on Cumberland Farms's property. 412 South Broadway requested a declaratory judgment that the right-of-way did not run across its property and that the defendants had no property rights over its land. Because the litigation involved the defendants' claim that they had the right to cross the State-owned railroad tracks and the property owned by 392 South Broadway, the trial court required that they both be joined as parties to the litigation.

The defendants filed several counterclaims against 412 South Broadway, alleging that, over its years of use, Cuomo Drive had expanded onto a small section of 412 South Broadway's property and that the defendants had acquired that portion through adverse possession or, alternatively, had acquired a prescriptive easement over it. This disputed portion of 412 South Broadway's property became known throughout the case as the "cross-hatched area."

In 2011, 412 South Broadway sold its property to FUN Trust. FUN Trust later joined the litigation and asserted several claims against the defendants. Among other claims, FUN Trust alleged that the defendants had committed slander of title and abuse of process in connection with the appeal of a site plan approval that FUN Trust had received from the Town of Salem Planning Board in 2012.

Prior to trial, the State and Cumberland Farms settled the claims pending against them. As a result, the remaining property rights issues concerned the defendants' claims that: (1) they had adversely possessed, or gained prescriptive easement rights to, the cross-hatched area on FUN Trust's property; and (2) they had a deeded right-of-way over the property owned by 392 South Broadway. The parties agreed to present evidence with regard to these issues, and then, depending upon the outcome, FUN Trust would present evidence on its slander of title and abuse of process claims against the defendants at a later date.

Following a four-day bench trial, the trial court issued an order finding that the defendants had not demonstrated any property rights to the crosshatched area. Specifically, the trial court stated that, due to a berm constructed along the northern boundary of FUN Trust's property line in the 1990s, the defendants "failed to demonstrate continuous use of the crosshatched area for the prescriptive period." The trial court also found that "even if [the defendants] could demonstrate they have fulfilled the requisite time requirements for adverse possession, they have not shown a definitive right to the disputed area because their description of the area crossed lacks any specificity."

With regard to the defendants' claim of deeded easement rights over 392 South Broadway's property, the trial court found that no such right existed. The trial court determined that, in 1874, the original grantor, John A. Messer, sold a parcel of property on the east side of the railroad tracks, which included the land that eventually became the lot owned by 392 South Broadway, reserving as a right-of-way "whatever may be necessary in going to and from land of said Messer on the Westerly side of said Railroad." The trial court found that "at the time John A. [Messer] reserved that right of way for himself, the property he owned on the West ... side of the rail road tracks [which included the defendants' property] was a life estate only." Thus, the court stated that John A. Messer "did not reserve for himself a perpetual right of way[;] [r]ather, he reserved a personal interest, or an easement in gross," which terminated when his interest in the life estate terminated.

Alternatively, the trial court ruled that, even assuming that the right-of-way passed with title to the property west of the railroad tracks, the right-of-way was later extinguished as to the defendants' property. The court cited a deed in the defendants' chain of title that did not mention the right-of-way in 1945, but found that the same grantor specifically did reference the right-of-way in deeds conveying two properties on the east side of the railroad tracks. The trial court found that that grantor "chose only to convey the benefit of the right of way to [the] properties on the East side of the railroad tracks" and that the defendants' property "did not obtain the disputed right of way." Given these rulings, the trial court directed the clerk to set a date for a bench trial regarding FUN Trust's remaining slander of title and abuse of process claims.

FUN Trust's remaining claims stemmed from the defendants' appeal of a 2012 Town of Salem Planning Board decision, which, over the defendants' objections, approved FUN Trust's site plan application. The defendants claimed that the planned redevelopment interfered with their rights to access Cuomo Drive and to cross over FUN Trust's property. The trial court heard evidence on these claims during a two-day bench trial. In its order, the court found that the defendants were not liable for slander of title because the statements that they had made were protected by judicial privilege.

However, the court found that the defendants were liable for abuse of process. It ruled that the defendants "failed to properly investigate their claim of adverse possession or prescriptive easement prior to the filing of the 2012 Appeal." It also found that the defendants made a nearly identical claim in a prior planning board appeal that was rejected, and that they pursued the 2012 appeal with the knowledge that the planning board did not have the authority to decide boundary disputes. Additionally, relying upon e-mails exchanged between the parties, the court found that the defendants had sought "borderline extortionate terms" in exchange for supporting FUN Trust's site plan application. The court ordered that the defendants pay FUN Trust's attorney's fees for the defense of the 2012 planning board appeal. This appeal followed.

II

On appeal, the defendants argue that the trial court erred: (1) in finding that they did not have a deeded right-of-way over 392 South Broadway's property; (2) in denying their motion to dismiss FUN Trust's claims for slander of title and abuse of process based upon res judicata and collateral estoppel; (3) in ruling in favor of FUN Trust on its abuse of process claim; and (4) in relying upon settlement communications between the parties as evidence of FUN Trust's abuse of process claim. We note that the defendants have not appealed the trial court's ruling that they do not have any property rights over the cross-hatched area located on FUN Trust's property.

In its cross-appeal, FUN Trust argues that the trial court erred: (1) in ruling that judicial privilege barred its claim against the defendants for slander of title; (2) by failing to award carrying costs, including property taxes, as damages in connection with its abuse of process claim; and (3) in denying its request for attorney's fees in connection with this litigation. We address each argument in turn.

A

The defendants argue that the trial court erred in finding that they did not have a deeded right-of-way across Cuomo Drive, which runs over 392 South Broadway's property. The defendants do not appeal the trial court's ruling that the original easement reservation made by John A. Messer, who owned only a life estate in the dominant estate, would have terminated when the life estate ended. Rather, they argue that "even if there was a life estate issue with the...