Patterson v. Sharek, 05-CV-1523.

• Citation: 924 A.2d 1005
• Decision Date: 17 May 2007
• Docket Number: No. 05-CV-1523.,05-CV-1523.
• Parties: Estate of James C. PATTERSON, et al., Appellants, v. Carl R. SHAREK, et al., Appellees.
• Court: Court of Appeals of Columbia District

924 A.2d 1005

Estate of James C. PATTERSON, et al., Appellants, v. Carl R. SHAREK, et al., Appellees.

No. 05-CV-1523.

District of Columbia Court of Appeals.

Argued March 26, 2007.

Decided May 17, 2007.

Harvey J. Volzer, Alexandria, VA, for appellants.

Brigitte L. Adams for appellee Carl Sharek.

Raighne C. Delaney, Arlington, VA, with whom James Bruce Davis was on the brief, for appellees Ronald and Rebecca Somers.

Before FARRELL, KRAMER and THOMPSON, Associate Judges.

THOMPSON, Associate Judge:

The primary issue before us in this appeal is whether appellants have a right to park in the rear of their property located at 2429 I Street, N.W. They challenge that portion of the trial court's order rejecting their claim that, through adverse use, their predecessor-in-interest extinguished appellees' right-of-way for automobile ingress and egress across the rearmost 25 feet of the property, leaving appellants free to park on their property as they see fit. We affirm the trial court's ruling that appellants' predecessor-in-interest did not acquire the right to unfettered use of the 25-foot area through adverse possession, but we vacate the court's order enjoining appellants from parking in the rear of their property "except as specifically set forth in the deed of easement." We remand for the trial court to determine whether appellants can park in that area without interfering unreasonably with appellees' right-of-way for ingress and egress (and, if so, within what parameters appellants may park there).

I. Factual and Procedural Background

The parties' dispute in this case pertains to three adjacent lots—Lot 810 on the west, Lot 809 in the center, and a lot formerly known as Lot 865¹ on the east— located in the 2400 block of I Street, N.W. Vehicle access to the rear of all three lots may be had only by entering through the rear of Lot 865, the lot owned by appellants. Appellee Carl R. Sharek and his wife are the owners of Lot 809, and they previously owned the other two lots as well. In April, 1958, the Shareks conveyed Lot 810 to Russell A. Eldridge. The deed from the Shareks to Eldridge ("the Eldridge deed") conveyed Lot 810

TOGETHER WITH with Right of Way for purposes of ingress and egress for automobiles over the North or rear 34 feet by full depth thereof of Lots 809 and 865 in Square 28. Reserving to the grantors a Right of Way for parking over the North or rear 17 feet by full width thereof of the above described property.

William R. Tiefel acquired Lot 810 in 1972. Sometime after the underlying lawsuit was commenced, Tiefel conveyed the property to Ronald and Rebecca Somers.

In November, 1959, the Shareks conveyed Lot 865 to James C. Patterson, subject to the right-of-way specified in the Eldridge deed. Specifically, the conveyance to Patterson was

[s]ubject to a right of way established in Deed from Carl R. Sharek and wife to Russell A. Eldridge dated April 21, 1958 . . . for purposes of ingress and egress over the North or rear 34 feet by full width of said land.

(italics added). The parties' dispute relates to the portion of Lot 865 referred to in the italicized language quoted above: the North or rear 34 feet of Patterson's lot, which was conveyed subject to a right-of-way for ingress and egress ("the North 34-foot ingress/egress area" or "the North 34 feet").

Sometime in the 1970's, Patterson built behind his house on Lot 865 a patio enclosure, surrounded by a brick wall, that extended nine feet into the southern portion of the North 34-foot ingress/egress area, leaving only 25 feet for ingress and egress. In addition, for decades, Patterson parked his vehicle within that remaining 25-foot area, apparently without objection from his neighbors. By sometime in 2002, however, Patterson began to park his car within the 25-foot area in a way that, according to Sharek and Tiefel (then the owners of Lots 809 and 810, respectively) interfered with ingress and egress to and from their lots. Sharek and Tiefel filed suit on August 7, 2003, against Patterson to regain the unobstructed benefit of their easement.² Unbeknownst to them, in 1996 Patterson had transferred Lot 865 to the J.C. Patterson Irrevocable Trust, also known as the Pop! Trust ("the Trust"). Because the complaint named Patterson as the sole defendant and he no longer owned Lot 865, the trial court dismissed appellees' original complaint.

Thereafter, Sharek and Tiefel re-filed their complaint, this time naming as defendants the Estate of James Patterson (Patterson had died in May, 2004); John T. Patterson and Hank Moose, who succeeded James Patterson as Trustees of the Trust; and Richard J. Mudd, legal counsel for the Trustees at the time the first complaint was filed.³ Count I of the complaint sought a declaratory judgment that defendants were prohibited from "obstructing or inhibiting Plaintiffs' right of ingress and egress across the rear 34 feet of lot [865], including a ban on parking motor vehicles, or placing of any obstruction of any kind, within the rear most 17 feet of said property."⁴ Count II sought an injunction to that effect. Count III sought an order directing defendants to remove the portion of the brick patio wall that infringed on the easement. Count IV alleged defendants' tortious interference with plaintiffs' use and enjoyment of their easement. Finally, Count V claimed that the Patterson Estate and Mudd intentionally had misled plaintiffs to believe that Patterson still owned Lot 865, causing plaintiffs to name the incorrect defendant in their original complaint and to incur expenses arising from that error.

In answering the complaint, the Trustees asserted a claim that Patterson's adverse use, of both the 9-foot patio portion of the North 34 feet of Lot 865 and the remaining, northernmost 25-foot portion of the lot, had extinguished the ingress/egress easement. The parties filed various motions for summary judgment or dismissal. On August 16, 2005, the trial court entered an order granting Mudd's motion to dismiss. The court also ruled that the Trustees had acquired a right to unfettered use of nine feet of the North 34-foot ingress/egress area (i.e., the nine feet within the brick patio wall), accepting their argument that Patterson's open, hostile, continuous and exclusive use of the area as a walled-off patio had extinguished appellees' easement as to the 9-foot-long area. However, the court granted summary judgment in favor of Sharek and Tiefel as to their request that "defendant Trustees be enjoined from parking in the remaining 25 feet of the easement," rejecting the Trustees' adverse possession claim with respect to that portion of the North 34 feet. The court ordered that "defendant Trustees shall be permanently enjoined from parking in the rear 25 feet of their Lot [865], except as specifically set forth in the deed of easement."

On or around December 1, 2005, the parties entered into a general Stipulation of Dismissal of all remaining outstanding claims. Finally, on December 16, 2005, the court entered a final order dismissing the case with prejudice.

On December 21, 2005, the Trustees filed their notice of appeal, seeking review of the trial court's orders of August 16, 2005 and December 16, 2005.⁵ They contend that the trial court erred in denying their claim of adverse possession of the northern 25-foot portion of Lot 865 and in restricting them from parking in that area.

II. Jurisdiction

Before we reach the merits, we must determine whether we have jurisdiction over this appeal. Appellees argue that we do not because, they assert, the notice of appeal was untimely. They reason that because the injunction that appellants challenge was entered via the court's order of August 15, 2005, to be timely under D.C.App. R. 4, the notice of appeal had to be filed within 30 days of that date.⁶ We should dismiss the appeal for lack of jurisdiction, appellees urge, because appellants did not file their notice of appeal until December 21, 2005, long after the 30-plus days allowed for appeal had elapsed. Appellees rely on Robinson v. Evans, 554 A.2d 332, 335 (D.C.1989) (the "prescribed time limits for noting an appeal are mandatory and jurisdictional. If the notice of appeal is not timely filed, the appellate court has no jurisdiction to hear the case, and the appeal must be dismissed.").

As appellees note, D.C.Code §§ 11-721(a)(1), (a)(2)(A), and (a)(2)(C) (2001) give this court jurisdiction to review not only final judgments of the Superior Court, but also injunctions and interlocutory orders changing or affecting the possession of property. Id. Thus, as appellees assert, the trial court's August 15, 2005 order rejecting appellants' adverse possession claim as to the rear 25 feet of Lot 865, and enjoining appellants from parking there, was immediately appealable to this court. See District of Columbia v. Eastern Trans-Waste of Md., Inc., 758 A.2d 1, 8 (D.C.2000) (trial court order granting partial summary judgment on one count of a multi-count complaint held appealable because it granted plaintiff's request for injunctive relief, regardless of whether all the issues in the case had been finally adjudicated). Appellees incorrectly reason, however, that because the Trustees could have appealed as of August 15, 2005, they were required to appeal within 30 days of that date or else forfeit their right to appeal as to the matters addressed in the August 15 order.

This issue appears to be a question of first impression in our jurisdiction, but numerous federal courts have addressed it in applying 28 U.S.C. § 1292, which, we have recognized, is the federal counterpart to D.C.Code § 11-721. See Hagner Management Corp. v. Lawson, 534 A.2d 343, 345 (D.C.1987) (analyzing whether an order was appealable under section 11-721, and noting that this court had adopted a test established by the Supreme Court for deciding the appealability of orders under "the corresponding federal statute governing interlocutory...