Assad v. Sea Lavender, LLC.

• Decision Date: 26 July 2019
• Docket Number: No. 18-P-848,18-P-848
• Citation: 129 N.E.3d 878,95 Mass.App.Ct. 689
• Parties: Sandra A. ASSAD, trustee, v. SEA LAVENDER, LLC.
• Court: Appeals Court of Massachusetts

95 Mass.App.Ct. 689

129 N.E.3d 878

Sandra A. ASSAD, trustee,¹

v.SEA LAVENDER, LLC.

No. 18-P-848

Appeals Court of Massachusetts, Plymouth..

Argued January 11, 2019.

Decided July 26, 2019.

Dennis J. Conry, Wareham, for the defendant.

John H. Perten, Boston, for the plaintiff.

Present: Hanlon, Lemire, & Wendlandt, JJ.

HANLON, J.

Sea Lavender, LLC (Sea Lavender) appeals from a second amended judgment issued by a judge of the Superior Court declaring that Sea Lavender has no legal right to use a sewage pump station located on the abutting property of the plaintiff, Sandra A. Assad, trustee of the S.C.S. Realty Trust, and awarding damages to the trustee for trespass. We conclude that the parties' predecessors in title had agreed to modify the terms of an express easement to permit Sea Lavender to use the pump station. In addition, we are persuaded that the trustee is estopped from denying the servitude.

Background. We draw the undisputed facts from the summary judgment record. All of the property at issue is located in Wareham (town) and at one time was owned by Earnest Blanchard. On or about April 22, 1974, the town planning board endorsed a plan Blanchard had submitted as a plan for which "approval under the subdivision control law [was] not required" (ANR plan). The ANR plan showed Blanchard's property divided into three lots. On or about June 1, 1974, Blanchard conveyed lot 2 as shown on the ANR plan (lot 2) to William Goyette (Goyette) by a deed containing the following express easement:

"All of the above premises are also conveyed together with the right to dig, excavate, maintain, and repair and do any and all other acts that might be necessary for the continued operation and use of so much of the sewerage system and related drains, pipes, leaching fields or beds as may be presently located on lot 3, for the benefit of [l]ot 2."

Almost two years later, on or about May 5, 1976, Blanchard conveyed lot 3 as shown on the ANR plan (lot 3), to Tremont Nail Company (Tremont), a division of W.H. Maze Company (Maze). The deed expressly provided it was subject to the same sewerage easement for the benefit of lot 2.

Goyette operated the Mill Pond Diner (diner) on lot 2. Tremont operated a company store on lot 3. Subsequent transfers of lot 3 between related entities resulted in Maze taking title to lot 3 in 1989. All of these relevant deeds contained the sewerage easement for the benefit of lot 2. Beginning in 1993, Sandra Assad and her husband, John Assad (together, the Assads), leased lot 3 from Maze and operated a store on the property.

The record reflects that at all times between 1974 and 2001, a single private septic system serviced lots 2 and 3. Sewage from lot 2 was discharged into two septic tanks located on lot 2, and then traveled through underground drainage pipes into a cesspool and leaching fields located on lot 3. As detailed below, the lot owners eventually moved to a different means of disposing of the sewage collected on each property by pumping it into the municipal sewer system for off-site treatment and disposal. While these technological means are different in some important respects (such as their particular environmental consequences), from the property owners' perspective, they serve as two alternative systems for piping away the sewage generated on the properties.

Among its various properties, Maze also owned a manufacturing plant located across the street from lots 2 and 3. According to William Driscoll, the general manager of Tremont, in 1999, Maze determined it would be in the company's best interest if the manufacturing plant could tie into the town's sewer system. For over two years, Driscoll worked with engineers and the town to create a pump station on lot 3 with sufficient capacity to tie in all of Maze's properties as well as some of the neighboring properties, including the diner on lot 2. Although Driscoll averred in his affidavit that Goyette was interested in having the diner tie into the pump station and the town sewer, the affidavit does not state whether Driscoll approached Goyette or whether Goyette approached Driscoll regarding the proposed tie-in. However, according to Driscoll, Goyette met with Driscoll several times and they negotiated a deal whereby Goyette paid Tremont a fixed sum to tie into the pump station and the town sewer system. Together, Maze and Goyette spent close to $200,000 to create the pump station as well as the piping system leading to the town sewer system. Driscoll averred that there was no agreement for Goyette to pay any additional maintenance or user fees to Tremont or Maze. The affidavit is silent as to whether Goyette's existing easement was discussed.

On September 27, 2001, the town issued sewer permits approving the tie-in of lot 3 to the town sewer system via the pump station. The approved sewerage and pump design plan specifically showed that the existing grease trap adjacent to the diner was to remain, the existing septic pit was to be abandoned, and "[n]ew PVC piping [from the diner] [was to] ... be connected to [the] existing sewer line."

Around the same time that the pump station was completed, Maze, after negotiations with John Assad, sold lot 3 to the trustee. The trustee averred that, at the time she purchased lot 3, she was aware that the owner of lot 2 was using the pump station on lot 3 to dispose of the sewage from the diner located on lot 2. She also testified at a deposition that the pump station was installed to replace the cesspool. According to Driscoll, who negotiated the sale of lot 3 to the trustee, the Assads "were fully aware of the pumping station and of the properties which were connected to the pumping station which included the ... [d]iner and the buildings that the Assads purchased."

From 2001 through 2004, any costs associated with the pump station were paid by Tremont. The costs were minimal. In 2004, Maze sold the manufacturing plant property to the town. Thereafter, the record suggests that until sometime in 2011, the town paid the costs associated with the pump station because the meter for the station was on that property. Each of the properties tied into the system also paid its own sewer assessments to the town.

In February 2011, Goyette died and his wife, Lorrain Goyette, became sole owner of lot 2. When the Assads sought to tie in additional buildings to the town sewer in 2011, the town realized it had been paying the costs of the pump station on lot 3 and sought to recoup those costs from the trustee. Disputes arose between the Assads and Lorrain Goyette regarding her contributions to the costs of maintaining the pump station. Sandra Assad, individually and as trustee, began and later settled litigation regarding the claim that Lorrain Goyette owed her maintenance fees; Lorrain Goyette's counterclaim for damages also settled. During the course of that litigation, John Assad plugged the sewerage line coming from the diner with cement, causing a backup of raw sewage into the diner. John Assad admitted he did this because Lorrain Goyette had not been contributing promised payments for the costs of operating the pump station.

While the District Court case was still pending, Lorrain Goyette sold lot 2 and the diner to Sea Lavender on July 21, 2014 for $200,000. She had been struggling financially and Sea Lavender's principal, Joseph Zeadey, had been a friend of Goyette and bought the diner in part to help her out. The Assads then approached Sea Lavender to pay the expenses of maintaining the pump station. Zeadey made some initial payments but negotiations between the parties broke down and Zeadey stopped making payments. The trustee then began this action in the Superior Court seeking a declaration that Sea Lavender had no legal right to continued use of the pump station (Count I), damages for trespass (Count II), an injunction ordering Sea Lavender to cease using the pump station (Count III), and damages for violation of G. L. c. 93A (Count IV).

The parties filed cross motions for summary judgment. A judge of the Superior Court granted summary judgment to the trustee, concluding that the easement Blanchard had granted over the drains, pipes, and leaching fields "as may be presently located on [l]ot 3" was limited to the sewerage system, i.e., the cesspool and leaching fields, in place at the time of the 1974 deed. The judge concluded that Goyette had acquiesced in the dismantling of the cesspool and leaching fields and paid Tremont a fixed sum to help construct the pump station to tie lot 3 into the town system, and thereby evidenced an intent to abandon the easement in favor of an oral agreement with Tremont to allow waste from lot 2 to flow across lot 3 and be pumped into the town sewer.

The trustee filed a motion to amend the judgment, seeking damages for trespass, injunctive relief, and G. L. c. 93A damages. The judge entered an amended judgment finding a continuing trespass by Sea Lavender and granting injunctive relief to the trustee. However, he entered judgment in favor of Sea Lavender on the c. 93A claim. After an assessment of damages hearing, the judge issued a second amended judgment awarding the trustee damages in the amount of $32,978.25. Sea Lavender appeals.

Discussion. "We review a grant of summary judgment de novo to determine 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 judgment as a matter of law’ " (citation omitted). Sea Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210, 215, 113 N.E.3d 355 (2018). Where the parties filed cross motions for summary judgment, we determine whether either party is entitled to judgment as a matter of law. Winbrook Communication Servs., Inc. v. United States Liab. Ins. Co., 89 Mass. App. Ct. 550, 550, 52 N.E.3d 195 (2016).

Express easement. "The general principle governing the interpretation of deeds is that the intent of the parties is ‘ascertained from the...