Lynn v. Wentworth by the Sea Master Ass'n

• Decision Date: 27 May 2016
• Docket Number: No. 2015–0333,2015–0333
• Citation: 143 A.3d 238,169 N.H. 77
• Parties: Paul LYNN & a. v. WENTWORTH BY THE SEA MASTER ASSOCIATION.
• Court: New Hampshire Supreme Court

169 N.H. 77

143 A.3d 238

Paul LYNN & a.

v.WENTWORTH BY THE SEA MASTER ASSOCIATION.

No. 2015–0333

Supreme Court of New Hampshire.

Argued: January 7, 2016

Opinion Issued: May 27, 2016

Hinckley, Allen & Snyder, LLP, of Concord (Richard Y. Uchida and Daniel M. Deschenes on the brief, and Mr. Deschenes orally), for the plaintiffs.

Sheehan Phinney Bass + Green, PA, of Manchester (Michael C. Harvell and Megan C. Carrier on the brief, and Mr. Harvell orally), for the defendant.

LYNN, J.

The plaintiffs, Paul and Sara Lynn, appeal an order of the Superior Court (Anderson, J.) granting summary judgment to the defendant, Wentworth By The Sea Master Association (association), and denying summary judgment to the plaintiffs. The parties dispute the validity of an easement on the plaintiffs' property that provides members of the association beach access. Because we conclude that an easement was validly created, we affirm.

I

The record supports the following pertinent facts. The association governs a residential development, comprised of over 100 homes as well as common areas, in New Castle. The plaintiffs purchased their property, Lot 17, by warranty deed dated June 30, 2011. The easement at issue is a walkway that provides beach access to association members and their guests. It runs from Little Harbor Road along Lot 17 and the neighboring lot before cutting across Lot 17 to the water.

Lot 17 was the site of the first house constructed in the development, and was first conveyed to the plaintiffs' predecessors in interest, the Horgans, by warranty deed dated April 28, 1995. Both Horgans testified during deposition that the easement existed on the property before they bought it from the developer. Mrs. Horgan recalled doing a "walk-through" with a realtor, and Mr. Horgan recalled speaking with a realtor on multiple occasions and meeting at least once with David Caligaris, a representative of the developer. Mr. Horgan testified that he knew there was an easement over the property when he and his wife purchased it. Caligaris testified that he and Mr. Horgan had a "handshake" on the existence of the easement, although its precise location may have been unclear. The Horgans also testified that they had no problems with the easement during the time that they lived on the property.

The deed from the developer to the Horgans states: "This Conveyance is subject to all utility and other applicable easements or restrictions of record, or which may be recorded in the future with respect to the Wentworth By The Sea Development or the Little Harbor Development." Similar language is also present in the plaintiffs' deed. No deed in the chain of title specifically mentions an easement providing beach access, although other easements are specifically mentioned.

A site plan for the development, recorded in September 1994 by the association's predecessor, did not show the easement. On May 11, 1995—13 days after the Horgans purchased the property—a revised site plan, which depicted the easement, was recorded. The association's predecessor recorded a Declaration of Easement in April 1996, which stated:

An access easement in favor of NC Wentworth, LLC, and its successors, the Wentworth By The Sea Master Association, or any successor master association, over or upon the easement area shown as "Additional Access Easement" on Lot 17, on a plan entitled "Easement Plan for Lot 17 and 23 of Little [H]arbor, Wentworth By The Sea" to be recorded at the Rockingham County Registry of Deeds.

The predecessor also filed an Easement Plan in April 1996 depicting the easement running over the property.

The Horgans' deed also states: "Title to and use of the above lot is subject to the Declaration of the Wentworth By The Sea Master Association, Covenants, Conditions and Restrictions, recorded at the Rockingham County Registry of Deeds at Book 3026, Page 2596, and amendments thereto recorded in said Registry." The association's Covenants, Conditions, and Restrictions (CCR) states, in relevant part:

The Wentworth By the Sea development is shown on the Master Site Plan dated February 3, 1993, and recorded.... The improvements, both existing and proposed, are shown on that Plan ... or by any subsequent Site Plans. All such plans recorded in connection with the property shall, collectively or as a composite, be deemed to be the Master Site Plan(s).

The record establishes that the plaintiffs had actual notice of the site plan, revised site plan, Declaration of Easement, Easement Plan, and the easement itself prior to purchasing the property. The Easement Plan was specifically mentioned in their deed: "Being the same premises shown on a plan entitled Easement Plan for Lot 17 & 23 at Little Harbor at Wentworth By The Sea recorded in the Rockingham County Registry of Deeds as Plan No. D–24600."

In January 2014, the plaintiffs filed suit seeking injunctive relief to prevent the association from using the easement, and a declaratory judgment that the easement was invalid and unenforceable. The association counterclaimed, and both parties moved for summary judgment. In its objection to the plaintiffs' motion for partial summary judgment, the association submitted affidavits from the Horgans and documents that were presented to the New Castle Planning Board, which had not previously been disclosed to the plaintiffs. The plaintiffs moved to exclude this evidence on the basis that it was not timely produced. After a hearing, the court denied the plaintiffs' motion to exclude and reopened discovery for the limited purpose of allowing the plaintiffs to take the depositions of the Horgans and Caligaris. The parties then filed supplemental memoranda addressing the additional evidence.

The trial court denied the plaintiffs' motion for partial summary judgment and granted summary judgment to the association. The court determined that the easement was validly created. Specifically, the court concluded that "an easement by implication was created when the Horgans purchased the property." The court noted "the uncontroverted testimony from the Horgans and Caligaris that the easement was agreed to before the Horgans bought the property—it was just not recorded until two weeks later" because "the exact metes and bounds were not yet finalized." "[T]he Horgans testified unequivocally that they were aware tha[t] an easement ran over their property prior to the purchase," and Mr. Horgan "unquestionably knew that the easement existed, what it was for, and generally where it fell." Thus, the court decided that "the easement arose by implication when the Horgans, having agreed to the easement, purchased the property."

The court also noted that the deed contained a "catch-all provision" subjecting the property to restrictions in the future, which Caligaris believed allowed the easement. In addition, the court pointed to evidence of the parties' conduct, namely that the Horgans never had any problems with or complaints about people using the easement, which demonstrated that an easement existed on the property.

The court rejected the plaintiffs' argument that the Horgans had agreed only to a revocable license because "the Horgans testified consistently that an easement went over their land" and there was "no evidence to suggest" that the interest was a revocable license instead. This appeal followed.

II

On appeal, the plaintiffs argue that the trial court erred by: (1) concluding that a valid easement was created by implication; (2) denying the motion to exclude the Horgan affidavits and other evidence; and (3) improperly resolving material issues of fact. The plaintiffs further contend that no recorded documents created the easement, and that, at best, a revocable license was created. The association argues that the trial court properly found that the easement arose by implication as part of a planned development, and that the right to create future easements was reserved in the Horgan deed and the CCR. Additionally, the association contends that several of the plaintiffs' arguments are not preserved for appeal.

A

We first address the plaintiffs' contention that the trial court erred by admitting evidence produced after the initial close of discovery, including the Horgans' affidavits and planning board documents. "We review the trial court's decisions on the admissibility of evidence under an unsustainable exercise of discretion standard." Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 832, 891 A.2d 477 (2005). The plaintiffs, therefore, "must demonstrate that the trial court's rulings were clearly untenable or unreasonable to the prejudice of [their] case." Id.

The only prejudice that the plaintiffs identified at the hearing was that they did not have the opportunity to depose the Horgans before discovery closed. The trial court, however, reopened discovery so that the plaintiffs could depose the Horgans and Caligaris, which they did. Both parties then filed supplemental briefs before the court made its ruling. Because the plaintiffs have not demonstrated that their case was prejudiced in any way, we conclude that the trial court did not unsustainably exercise its discretion by admitting the evidence.

B

The issue before us is whether an easement was validly created. The trial court ruled that an implied easement had been created. The plaintiffs argue that the trial court erred by ruling that an easement by implication arose based upon an oral agreement between the Horgans and the association's predecessor because the agreement fails to establish the necessary elements for an easement by implication. They further argue that an easement could not be created by the oral agreement alone because that would violate the Statute of Frauds. See RSA 506:1 (2010); see also RSA 477:7, :15 (2013). The plaintiffs contend that the necessary elements are those needed to establish an easement by prior use, which the trial court recited in its order, see Blaisdell v. Raab, 132 N.H. 711, 716, 571 A.2d 261 (1990), but which...