Bridge Bloq Nac LLC v. Sorf

• Decision Date: 01 August 2019
• Docket Number: No. 20171043-CA,20171043-CA
• Citation: 447 P.3d 1278
• Parties: BRIDGE BLOQ NAC LLC, Appellant, v. Zdenek SORF, CNC Machine and Design Inc., and FRS Leasing LLC, Appellees.
• Court: Utah Court of Appeals

447 P.3d 1278

BRIDGE BLOQ NAC LLC, Appellant,

v.Zdenek SORF, CNC Machine and Design Inc., and FRS Leasing LLC, Appellees.

No. 20171043-CA

Court of Appeals of Utah.

Filed August 1, 2019

Leslie Van Frank, Stephen T. Hester, Salt Lake City, and Bradley M. Strassberg, Attorneys for Appellant

Paul M. Belnap and Alan R. Houston, Salt Lake City, Attorneys for Appellees

Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Kate Appleby concurred.

Opinion

POHLMAN, Judge:

¶1 This dispute involves whether Appellees Zdenek Sorf (Mr. Sorf), CNC Machine and Design Inc., and FRS Leasing LLC (collectively, Sorf)¹ have an implied easement over property belonging to Bridge BLOQ NAC LLC.² The trial court ruled that an easement existed. Bridge appeals, and we affirm.

BACKGROUND

¶2 Bridge and Sorf own adjoining properties separated by a paved alley. Bridge owns the east property and Sorf owns the west property. The alley, which is the subject of this dispute, is on Bridge's property.

¶3 On each property sits a building—the east building and the west building. The west building is approximately one foot from the boundary line between the two properties. The east building is approximately thirty feet to the east of the same boundary line.

¶4 Both properties were once owned by Sorf's predecessor, a company formed by Mr. Sorf and a business partner (Partner). In 2001, the east property was conveyed to Partner, while Sorf retained the west property. After the properties were severed, Sorf continued to use the alley in the same manner it was used before severance. Specifically, Sorf used the alley for ingress and egress, received deliveries to the west building through the alley, and parked in the alley. In addition, before and after severance, a tenant of the west building (Tenant) was given exclusive use of two parking spaces in the southernmost part of the alley. Tenant testified at trial that without those spots, it would "probably have to move" out of the west building.

¶5 Six years after severance, a dispute developed between Sorf and Partner regarding rights to the alley. Sorf filed a Notice of Easement, stating that "[a]n easement ... in the alley is claimed for pedestrian and vehicle access for the entire length of the alley, for all parking stalls located therein, for garbage receptacles and for storage of raw materials, storage of metal bars and ingots, pallets, and machinery." The Notice of Easement further claimed that Sorf and its predecessors had used the alley "continuously for fifty-one (51) years."

¶6 Through a series of conveyances, the east property—including the alley—came to belong to Bridge, which subsequently brought suit to quiet title. Sorf counterclaimed, requesting (as relevant here) a declaratory judgment upholding the existence of an implied easement.³

¶7 As the litigation proceeded, Mr. Sorf was deposed. He testified that when he severed the properties in 2001, he intended to split "everything 50/50" and that he would have "never agree[d]" to someone else owning the alley. He also testified that "from day one, [he] ke[pt] using that property as [his] property ... for [the] next six years" until he found out he did not own it. "That's when I start[ed] fighting back," explained Mr. Sorf, "because this was not the agreement."

¶8 Mr. Sorf expressed similar sentiments in two declarations. In the first, he stated,

[Partner] and I agreed to dissolve our business relationship in the year 2001 and at that time we agreed that the alley would be split 50-50, just as we had discussed previously, and that the alley would continue to be used as in the past.

I did not know the alley was part of the property deeded to [Partner] when we ended our relationship, and I believed that we had divided the alley equally.

In his second declaration, he confirmed,

I NEVER would have agreed to conveyance of the east property to [Partner] if I had known that the alley was located on the east property because the alley is critical to the operation of [the west property].

¶9 Based partly on these statements, Bridge moved for summary judgment on Sorf's sole remaining counterclaim for an implied easement. It argued that there was "no basis to imply" the intent necessary for an implied easement, because "Sorf has made his intent clear by virtue of his ... sworn testimony in this case." Bridge reasoned that "Sorf intended to own half of the alley, not have permission to use it." (Emphasis added.) Because Mr. Sorf stated that he never would have conveyed the east property and alley to Partner in 2001, Bridge asserted that Sorf's claim for an implied easement failed as a matter of law.

¶10 The trial court denied the summary judgment motion. It determined, relying on Adamson v. Brockbank , 112 Utah 52, 185 P.2d 264 (1947), that in the context of implied easements "we're striving [for] an intent that the parties would have had if they'd thought of it." Thus, while Mr. Sorf's "recollection of his subjective intent" was "probative" for the court, it was "not dispositive." The court concluded that the issue was "entitled to be tried" rather than resolved as a matter of law.

¶11 A jury trial followed. After presentation of the evidence, Bridge moved for a directed verdict. The motion repeated, in part, what had been argued in the motion for summary judgment. That is, Bridge argued (1) that because of Mr. Sorf's sworn testimony there was no evidence "that the intent of the parties was to create an implied easement at the time of severance" and (2) that Sorf "made clear in this case that what [it] seeks is not an easement, but ownership," especially with respect to parking in the alley. Bridge asserted that an easement is a limited, "non-possessory interest in land" and that Sorf "intends to occupy all of the parking spaces" in the alley, "necessarily to the exclusion of [Bridge]." (Cleaned up.)

¶12 The trial court denied the motion for a directed verdict. It again determined that the parties had presented a jury question as to intent. And as to parking, the court concluded that Utah and other states "recognize parking easements." In other words, the court concluded that the law does not foreclose an easement for parking and that there was "evidence for which a jury might conclude that there was a reasonable necessity for parking" at the time of severance.

¶13 The jury was tasked with deciding whether the factual elements of an implied easement were met, and it found each element was satisfied.⁴ Specifically, the jury found, by clear and convincing evidence,⁵ that Sorf's claimed easement was "apparent, obvious, and visible" at the time of severance in 2001; that the claimed easement was "reasonably necessary" to Sorf's use of the west property; that Sorf's use of the claimed easement was "continuous rather than sporadic"; and, finally, that Sorf and Partner at the time of severance "intended, or, having formed no conscious intent, probably would have intended, to create an easement" in favor of the west property.

¶14 After trial, but before the court entered final judgment in the case, Bridge moved for judgment notwithstanding the verdict (JNOV) based primarily on this court's intervening decision in Judd v. Bowen , 2017 UT App 56, 397 P.3d 686, cert. dismissed as improvidently granted , 2018 UT 47, 428 P.3d 1032. There, this court held that the doctrine of prescriptive easements could not grant a parking right that totally excluded the owner from his property. Id. ¶¶ 55, 68. Bridge argued that under Judd , "no easement for parking [in the alley could] be established, as a matter of law."

¶15 The trial court denied the JNOV motion and distinguished Judd . First, it concluded that Judd was a prescriptive easement case—not an implied easement case. It reasoned that parties can expressly "contract away their rights to exclusive use" and that the jury found that is what impliedly happened here. The court stated, "This is not a matter of determining whether a prescriptive right can arise through non-exclusive use versus a possessory right that can be obtained only through exclusive use. This is a right that is implied by the circumstances and the parties' actual or probable intent." Second, the court concluded that Judd was factually distinguishable. According to the court, Judd concerned a narrow, one-lane driveway with limited parking and the Judd court "repeatedly emphasized the peculiar facts in that case." By way of contrast, the trial court found in this case that there were a total of around eight parking spaces in the alley and that there was "very little evidence" concerning the extent of Sorf's interference with Bridge's parking rights.

¶16 The trial court then entered final judgment, concluding that "an implied easement over the alley was created in favor of the west property" in 2001 and that the easement covered ingress and egress, deliveries to the west building, and parking. As it relates to parking, the court determined that Sorf has an exclusive easement for daily parking across the two southernmost parking spaces in the alley and a nonexclusive easement for the remaining parking spaces.⁶ Accordingly, the court granted Sorf's request for a declaratory judgment and dismissed Bridge's quiet title claim.

¶17 Bridge appeals.

ISSUES AND STANDARDS OF REVIEW

¶18 Bridge first contends that the trial court erred when it denied its motion for summary judgment on the nonexistence of an implied easement. "Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law, viewing the facts and all reasonable inferences drawn therefrom in a light most favorable to the nonmoving party." Stephenson v. Elison , 2017 UT App 149, ¶ 20, 405 P.3d 733 (cleaned up). We review the trial court's "ultimate grant or denial of summary judgment for correctness." Id. (cleaned up).

¶19 Bridge next contends that the trial court erred when it denied its motion for a directed verdict. "A...