Benvenuto v. 204 Hanover, LLC
| Decision Date | 09 March 2020 |
| Docket Number | No. 18-P-1267.,18-P-1267. |
| Citation | 143 N.E.3d 467,97 Mass.App.Ct. 140 |
| Court | Appeals Court of Massachusetts |
| Parties | Angela BENVENUTO & others v. 204 HANOVER, LLC, & another. |
Rebecca H. Newman for 204 Hanover, LLC.
George R. Jabour for the plaintiffs.
Present: Desmond, Sacks, & Ditkoff, JJ.
Defendant 204 Hanover, LLC (204 Hanover), owner of the land and building at 204 Hanover Street in Boston, appeals from the entry of summary judgment in favor of the owners of the adjacent land and building at 206-208 Hanover Street, plaintiffs Angela Benvenuto and her three siblings.3 The judgment, as amended, declared that an express right of way easement over the plaintiffs' land, granted to 204 Hanover's predecessors in interest, had been extinguished by the plaintiffs' adverse use. Critical to the motion judge's allowance of the plaintiffs' summary judgment motion was the judge's conclusion that, because certain deposition testimony favorable to 204 Hanover was contradicted by other testimony at the same deposition, the favorable testimony did not create a genuine issue of material fact. The judge based this conclusion on an analogy to the principle that "a party cannot create a disputed issue of fact by the expedient of contradicting by affidavit statements previously made under oath at a deposition." O'Brien v. Analog Devices, Inc., 34 Mass. App. Ct. 905, 906, 606 N.E.2d 937 (1993). We hold that this principle did not warrant disregard of the witness's self-contradictory deposition testimony in this case. We therefore reverse the amended judgment.
The bank later conveyed the 204 Hanover Street property to one of 204 Hanover's predecessors in interest.
The area at issue is a three-foot-wide passageway located on the 206-208 Hanover Street parcel; it begins at Hanover Street and runs in the narrow space between the buildings on the two parcels. Tenants of 206-208 Hanover Street use the passageway to pass between Hanover Street and a building entrance leading to their apartments. Tenants of 204 Hanover Street's ground-floor commercial space access that space through a front door leading to the street, although a door located at the rear of the space opens onto the passageway. Tenants of 204 Hanover Street's upper floors gain access to their apartments through a separate door from the street.
At some point -- as early as 1972, according to Benvenuto, or as late as 2000 or thereafter, according to 204 Hanover -- the plaintiffs or their predecessors in interest installed an iron gate across the passageway where it began at Hanover Street. They installed a lock that prevented the gate from being opened from the Hanover Street side without a key, although whether a key was required to open the gate from the passageway side is unclear. They gave keys to their own tenants but not to the owners or tenants of 204 Hanover Street. They also attempted by other means to deny access to the passageway to 204 Hanover Street's owners and tenants; the extent to which they succeeded was a major focus of the summary judgment papers.
In 2013, defendant 204 Hanover acquired the property. In late 2014, the plaintiffs filed this action, asserting that 204 Hanover's easement had been extinguished by the plaintiffs' adverse use of the passageway for the preceding approximately forty years.5 In February of 2015, 204 Hanover counterclaimed, seeking an order that the gate be removed, an injunction against the plaintiffs' further interference with its use of the passageway, and damages.6 On cross motions for summary judgment, the judge allowed the plaintiffs' motion, ruling that their and their predecessors' undisputed acts to prevent 204 Hanover's predecessors from using the passageway, over a period of more than twenty years, had extinguished the easement. From the amended judgment so declaring, 204 Hanover appealed.
Discussion. "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, 571 N.E.2d 357 (1991). Here, to obtain summary judgment on their extinguishment claim, the plaintiffs were required to show on the facts not genuinely disputed that they or their predecessors had used their 206-208 Hanover Street property in a manner adverse to the easement, meaning, at a minimum, "irreconcilable with the rights" of the easement holder.7 Patterson v. Simonds, 324 Mass. 344, 352, 86 N.E.2d 630 (1949). The adverse use must have been open, notorious, and continuous for at least twenty years. See Brennan v. DeCosta, 24 Mass. App. Ct. 968, 969, 511 N.E.2d 1110 (1987). We conclude that on two critical issues -- the date the gate was installed, and how the passageway was used -- the judge erred in determining that the facts regarding adverse use were not genuinely disputed.
1. Date of gate's installation. Benvenuto's 2017 affidavit asserted that the plaintiffs or their predecessors in interest erected the gate "approximately [forty] years ago," i.e., about 1977. Her 2018 affidavit asserted that although she could "not remember the exact date," she believed the gate had been installed "on or about, 1972."
In response, 204 Hanover submitted the deposition testimony of Kathleen Briana, who had operated a photography store on the ground floor of 204 Hanover Street for ten to twelve years beginning sometime in the 1990s, perhaps 1996 or 1998. Briana initially testified: Next, asked if she knew when the gate was installed, Briana answered: This testimony, if believed, would put the installation of the gate in the year 2000 or thereafter, meaning it had been in place for less than the twenty years required to extinguish the easement.8
But Briana was "not 100 percent" certain about the date the gate was installed. "I'm guessing.... I'm not going to say definitely.
I mean, [Benvenuto] would be able to tell you when she put it up." And later in Briana's deposition, when asked if there was no gate there when she first moved in, she replied:
Faced with this testimony, the judge concluded that "it is clear that Ms. Briana was not sure when the gate was erected," and that her "contradictory statements cannot create a genuine issue of material fact." As we have noted, supra, in support of this ruling, the judge analogized to the principle that "a party cannot create a disputed issue of fact by the expedient of contradicting by affidavit statements previously made under oath at a deposition." O'Brien, 34 Mass. App. Ct. at 906, 606 N.E.2d 937, citing Radobenko v. Automated Equip. Corp., 520 F.2d 540, 544 (9th Cir. 1975), and Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969). The judge also gave some weight to Briana's testimony that [Benvenuto] "would be able to tell you when she put it up," coupled with what the judge termed Benvenuto's "clear recollection" as of 2017 that the gate had been up for "approximately [forty] years, or more."
To the extent that the judge concluded there was no dispute that the gate had been installed in approximately 1977, O'Brien was not a sufficient basis to do so.9 The principle of O'Brien, sometimes known as the "'sham' affidavit rule," Smaland Beach Ass'n v. Genova, 461 Mass. 214, 229 n.24, 959 N.E.2d 955 (2012), did not warrant disregard of the witness's self-contradictory testimony within the same deposition. The sham affidavit rule is based on the recognition that "[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Perma Research & Dev. Co., 410 F.2d at 578. A party who manufactures an issue of fact in this manner has not created a "genuine issue" for summary judgment purposes, id. ; "sham issues ... should not subject the [moving party] to the burden of a trial." Radobenko, 520 F.2d at 544.
Briana's deposition testimony here did not create this danger. First, she was neither a party nor had any significant interest in this case,10 and an exception to the sham affidavit rule is that "a conflicting affidavit from a disinterested witness may suffice to prevent summary judgment when the court determines that nothing in the record suggests that its introduction was solely to create a genuine dispute of fact." 10A C.A. Wright, A.R. Miller, & M.K. Kane, Federal Practice and Procedure § 2726.1, at 468-469 (2016). Second and more importantly, this case did not involve the "expedient" of a postdeposition affidavit. Contrast O'Brien, 34 Mass. App. Ct. at 906, 606 N.E.2d 937. Rather, Briana gave her...
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...by contradicting her own deposition answers, a doctrine sometimes known as the "sham affidavit rule." Benvenuto v. 204 Hanover, LLC, 97 Mass. App. Ct. 140, 144, 143 N.E.3d 467 (2020). Meanwhile, Raymond's overtime claims were dismissed on statute-of-limitations grounds. Her separate retalia......