Mancini v. Spagtacular, LLC.

• Citation: 131 N.E.3d 261,95 Mass.App.Ct. 836
• Decision Date: 29 August 2019
• Docket Number: No. 18-P-593,18-P-593
• Parties: Angela Ciamarra MANCINI v. SPAGTACULAR, LLC.
• Court: Appeals Court of Massachusetts

95 Mass.App.Ct. 836
131 N.E.3d 261

Angela Ciamarra MANCINI¹
v.
SPAGTACULAR, LLC.

No. 18-P-593

Appeals Court of Massachusetts, Worcester..

Argued January 11, 2019
Decided August 29, 2019

Barry A. Bachrach, Leicester, for the defendant.

Damien D. Berthiaume, North Brookfield, for the plaintiff.

Present: Massing, Desmond, & McDonough, JJ.

McDONOUGH, J.

95 Mass.App.Ct. 836

After a jury-waived trial, a Superior Court judge declared that the plaintiff has acquired by adverse possession two separate areas of land contiguous to her property in Shrewsbury. The defendant, who holds record title to the disputed

95 Mass.App.Ct. 837

land, argues clear error in the judge's factual findings and legal error in his application of adverse possession doctrine. We affirm.

Background. The plaintiff, Angela Ciamarra Mancini (Mancini), first acquired the property known as 110 Oak Street in Shrewsbury on June 1, 2000.² Mancini's property is improved with a single-family home. To the east, her lot fronts on Oak Street. To the west and south, Mancini's land directly abuts undeveloped, wooded land owned by the defendant, Spagtacular, LLC (Spagtacular). A survey plan of the properties, trial exhibit 5, appears in adapted form in the appendix to this opinion.³

As shown in the appendix, two areas functionally incorporated into Mancini's yard actually lie beyond her lot lines and within the land held (as of record) by Spagtacular. We refer to them as the disputed areas. (The exhibit calls each area a "Land of Potential Claim.") The larger of the two disputed areas is situated behind (i.e., to the west of) Mancini's house, adjacent to her parcel's northwest corner. This is a mowed, grassy area, with no permanent improvements; like the judge we will call it the disputed back area. The smaller disputed area is located just beyond one of Mancini's side lot lines, to the south of her house. This area is largely covered by a paved basketball court, with one permanent post, backboard, and hoop.⁴ As the judge did, we will refer to it as the disputed basketball area.⁵

131 N.E.3d 265

Mancini filed this action on June 5, 2014. Spagtacular does not contest that Mancini has established the elements of adverse possession as to both disputed areas for the entire time she has owned the locus, up until commencement of this action,⁶ a total of fourteen out of the required twenty years. See

95 Mass.App.Ct. 838

G. L. c. 260, § 21. Accordingly, this appeal focuses on whether Mancini has proved adverse possession of the disputed areas by her immediate predecessor for the remaining six years, from June 1, 1994 to June 1, 2000. See Luce v. Parsons, 192 Mass. 8, 12, 77 N.E. 1032 (1906) (claimant alleging adverse possession may include evidence of predecessors' possession). See also G. L. c. 260, § 22 ; LaChance v. First Nat'l Bank & Trust Co. of Greenfield, 301 Mass. 488, 489-491, 17 N.E.2d 685 (1938).

Relevant to that inquiry, the judge found the following facts after trial (including a view). Prior to Mancini's purchase of her property in 2000, it was owned by the Schwab family. Mancini's principal witness, Joseph Schwab (Schwab), moved into the locus in 1983 with his mother and his two brothers, at age sixteen. From 1983 to 2000, "there always existed a sharp and delineating tree line that rimmed the westerly side and southern portion of" the locus. That tree line never changed during the Schwab family's occupation of the property.

The Schwab family treated as their own the entire area within the tree line along both the property's southerly and westerly lot lines. From 1983 until the sale of the property to Mancini in 2000, the Schwab family "maintained, utilized, and considered their own the entire area on the western and southern sides of their lot as extending to and bounded by the tree line. These areas were maintained by, among other things, mowing, fertilizing, and on the westerly side, the installation of a [thirty-five foot by thirty-five foot] basketball court in 1984 which extends beyond the actual lot line into the [d]isputed [b]asketball [a]rea."

Up until Schwab and his brother left home for college, they mowed and maintained the lawn in the disputed basketball area (around the perimeter of the paved court) and in the disputed back area. After the Schwab brothers left, their mother engaged a lawn service company to perform these tasks. During the Schwabs' residence at the locus, they never sought nor received permission to use the disputed areas. Additionally, the judge expressly found the tree line was in the same location at the time of trial as it had been when the Schwabs lived at the locus.

Discussion. 1. Factual findings. Spagtacular argues that the judge committed clear error in his fact findings. See Kendall v. Selvaggio, 413 Mass. 619, 620, 602 N.E.2d 206 (1992). In particular, Spagtacular argues that the evidence at trial was insufficient to allow the judge to conclude that the Schwabs' "use and maintenance" of the disputed areas "occurred from 1983 through the sale of this property to Mancini in 2000." More specifically, Spagtacular argues

95 Mass.App.Ct. 839

that this finding cannot be properly supported by Schwab's testimony because Schwab was not living at the property during the critical six years, from 1994 until 2000. Additionally, Spagtacular argues, Schwab's testimony was not sufficiently detailed to support the judge's finding.

131 N.E.3d 266

A finding is only clearly erroneous, however, when "there is no evidence to support it or ‘the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ " Brandao v. DoCanto, 80 Mass. App. Ct. 151, 154, 951 N.E.2d 979 (2011), quoting Kendall, 413 Mass. at 620-621, 602 N.E.2d 206. "So long as the judge's account is plausible in light of the entire record, an appellate court should decline to reverse it." Brandao, supra, quoting Commonwealth v. Carr, 458 Mass. 295, 303, 936 N.E.2d 883 (2010). Stated another way, "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Brandao, supra at 155, 951 N.E.2d 979, quoting Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510, 677 N.E.2d 159 (1997).

Here, we readily consider the judge's finding to be plausible on the record presented. Schwab testified that the thirty-five foot by thirty-five foot paved basketball court was installed in 1984. Before he left for college, he, with an uncle's help, fertilized and mowed the entire grassy area around the perimeter of the basketball court, and mowed (with less frequent application of fertilizer) the disputed back area. The mowing occurred weekly, or even more frequently, using a ride-on mower. Schwab specifically remembered mowing along the edges of the disputed back area with a hand mower, using the tree line as a guide.

By 1990, when Schwab graduated from college and briefly moved back home, his mother had hired a man to mow, perform other yard maintenance, and plow the driveway. From when Schwab again moved out of the family home in 1991 until his mother died in August 1999, Schwab visited his mother regularly, approximately twice per week. Schwab testified that he knew only the first name of the man maintaining the lawn (Paul), but he did not know a last name or a company name. When Schwab was asked whether he knew what part of the locus the hired man maintained, he replied, "Yes -- the lawn. Otherwise it would have become overgrown." He later testified that at no point between 1983 and 2000 did any part of the yard become overgrown or neglected. When asked specifically if it was his recollection that the disputed back area was always mowed with the rest of the lawn, he answered, "It would be my recollection that that was the case. It had to be, if we weren't cutting it."

95 Mass.App.Ct. 840

Schwab also testified clearly that the tree line never changed from the time he moved in until the property was sold to Mancini in 2000. Similarly, he said the basketball court was never changed or moved. Finally, Schwab testified that the basketball court was still usable when the house was sold, although some of the painted markings had worn off.⁷

A second witness, Brian Lake, corroborated Schwab's testimony in various respects. Lake testified that he either lived at or frequently visited the home next

131 N.E.3d 267

door, at 108 Oak Street, from 1971 (when he first moved in at six years old) to the time of trial. Lake expressed familiarity with 110 Oak Street and stated that he had no recollection of the disputed back area becoming overgrown at any time. As to the tree line, he said, "I recall it being the same today as it was when we moved in."

Spagtacular argues that Schwab's testimony should be disregarded as speculative because Schwab said the lawn must have been mowed by someone "if we weren't cutting it," because...