Rawley v. Heymann

• Docket Number: 23-AP-003
• Decision Date: 15 December 2023
• Parties: John F. Rawley, et al. Greg Wilson & Maria Shik, Trustee, Appellants v. Nicholas P. Heymann, et al.
• Court: Vermont Supreme Court

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2023 VT 64

John F. Rawley, et al. Greg Wilson & Maria Shik, Trustee, Appellants
v.
Nicholas P. Heymann, et al.

No. 23-AP-003

Supreme Court of Vermont

December 15, 2023

On Appeal from Superior Court, Windham Unit, Civil Division Michael R. Kainen, J.

Richard K. Bowen of Law Office of Richard K. Bowen, Springfield, for Plaintiffs-Appellants.

Constance Tyron Pell of Carroll, Boe, Pell &Kite, P.C., Middlebury, for Defendants-Appellees Nicholas and Bibiana Heymann.

Hans G. Huessy of MSK Attorneys, Burlington, for Defendants-Appellees Cathryn Abbott and Victor Baisley.

PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Dooley, J. (Ret.), Specially Assigned

CARROLL, J.

¶ 1. In this declaratory-judgment action, plaintiffs appeal the trial court's grant of summary judgment to defendants regarding the allocation of maintenance costs for a private, shared road. We affirm.

¶ 2. Plaintiffs are the owners of five of seven lots served by Purple Mountain Road, a private road in the towns of Dummerston and Brookline. Defendants are the owners of the other two lots. Plaintiffs filed this action in November 2019, seeking a declaration from the court as to how maintenance costs of the private road should be allocated among the lot owners. Although

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all parties acknowledged that they have some obligation to contribute to maintenance costs, plaintiffs and defendants disagree as to how those costs should be allocated. Plaintiffs assert that each lot owner should contribute based on the percentage of distance traveled from the public highway along the private road to reach the driveway to their respective lot. Defendants maintain that all parcel owners should divide costs equally. Following discovery, the parties filed crossmotions for summary judgment.

¶ 3. In December 2022, the court issued a written decision denying plaintiffs' motion for summary judgment and granting defendants' motions. The following summarized facts are undisputed unless otherwise noted. The road was constructed by developers in the mid-1970s as part of the creation of a seven-lot subdivision. The road is fifty feet wide and extends 3790 feet from a public highway to a dead-end cul-de-sac; it has no outlets. Plaintiff-appellant Trustee Shik controls the lot closest to the public highway, and the trust's driveway is approximately 735 feet from the highway. Plaintiff-appellant Gregory Wilson's lot is adjacent to the trust's property. Defendants own the two lots located farthest from the public highway-the Heymann lot is approximately 3356 feet away, and the Abbott and Baisley lot is approximately 3790 feet away. All parties use the road to access their properties, although the parties dispute the frequency and intensity of use by various lot owners. All seven of the parties' deeds provide them the right to use the road. The chain of title for the first lot conveyed out by the original developers-now owned by defendants Abbott and Baisley-does not explicitly address road-maintenance obligations. The deeds for the other six lots all contain a requirement that the grantee "will bear their proportionate share of the repair and maintenance of the road."

¶ 4. Currently there is no written road-maintenance agreement that binds all parties. However, the parties submitted affidavits, prior agreements, and other documents with their summary-judgment motions, demonstrating numerous different ways that some or all of the parties or their predecessors in interest have allocated maintenance costs over the years. For example,

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defendants Nicholas and Bibiana Heymann submitted a 2012 road-maintenance agreement that was signed by some but not all owners, recorded in the Dummerston land records, and provided that all maintenance costs would be divided equally among lots. The Heymanns asserted that all parties, including those who had not signed, abided by these terms from 2012 through 2017, but plaintiffs disputed this fact.^[1] Plaintiffs submitted affidavits and agreements in support of their assertion that from the 1980s until 2001, when defendants Abbott and Baisley purchased their property, all lot owners contributed to maintenance proportionally based on distance from the public highway. Defendants disputed this fact to some extent. The parties also made disputed assertions about the history and status of development on each lot. It appears that some lots are, or were recently, undeveloped and some lots may have more than one residence.

¶ 5. The court determined that because there is no operative road-maintenance agreement binding all parties, 19 V.S.A. § 2702 governs their obligations. See 19 V.S.A. § 2702 ("In the absence of an express agreement or requirement governing maintenance of a private road, when more than one person enjoys a common benefit from a private road each person shall contribute rateably to the cost of maintaining the private road . . . ."). It concluded that "rateably" can mean either equally or proportionally based on use or some other measure, depending on the circumstances. In considering the circumstances here, the court reasoned as follows:

In this case, the parties created a right of way with shared benefits, and all have the right to utilize the entire Road at any time. Cf. Birchwood Land Company, Inc, v Krizan, 2015 VT 37, ¶¶ 11 and 21, 198 Vt. 420 (incidental benefits not unjust enrichment). Their right of way enhances private and commercial access to their properties. The fact that the Road is a cul-de-sac does not compel a

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different conclusion, in that all who access their properties through this road also share in privacy afforded by the fact that it is not a thoroughfare. Cf. Regan v. Pomerleau, 2014 VT 99, ¶¶ 34-35, 197 Vt. 449 (discussing access/easements by necessity as essential to enjoyment of land). In short, under these circumstances, all parties must pay a reasonable equal fee for maintenance of the Road, and they cannot parse out some smaller amount based on some notion of actual use.

¶ 6. On appeal, plaintiffs argue that the trial court should have applied the "proportionate"-contribution standard contained in all but one of the current owners' deeds, and that this standard requires the parties to make prorated contributions to maintenance based on distance from the public road. Plaintiffs contend that the court's determination that "rateable shares" meant "equal shares" is not supported by the record and the court failed to consider important material facts.^[2]

¶ 7. "We review summary[-jjudgment decisions de novo, using the same standard as the trial court." Gauthier v. Keurig Green Mountain, Inc., 2015 VT 108, ¶ 14, 200 Vt. 125, 129 A.3d 108. "Summary judgment will be granted 'if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Id. (quoting V.R.C.P. 56(a)). We review the record as a whole, accepting as true allegations made in opposing summary judgment as long as they are supported by evidentiary materials, Robertson v. Mylan Lab'vs, Inc., 2004 VT 15, ¶ 15, 176 Vt. 356, 848 A.2d 310, and give the benefit of all reasonable doubts and inferences to the nonmoving party. Gauthier, 2015 VT 108, ¶ 14.

¶ 8. Where landowners served by a private road are subject to an agreement or particular requirement for contributing to road-maintenance expenses-for example, as set forth in deeds or a subdivision plan-the language of that agreement or requirement governs road maintenance.

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However, where there is no such agreement or requirement, each landowner must contribute "rateably." 19 V.S.A. § 2702; Hubbard v. Bolieau. 144 Vt. 373, 375, 477 A.2d 972, 973 (1984) ("This Court has long recognized the equitable principle that when several persons enjoy a common benefit, all must contribute rateably to the discharge of the burdens incident to the existence of the benefit." (quotation omitted)). Under the rateable standard, the formula for contribution must be "reasonable and equitable" given the benefits that each owner receives. Khan II, 2020 VT 90, ¶ 40. Thus, the "basis of fair apportionment will vary depending on the circumstances." Id. ¶ 9 (quoting Restatement (Third) of Prop.: Servitudes § 4.13 cmt. e (2000)).

¶ 9. The court correctly determined that the parties' contributions are governed by 19 V.S.A. § 2702 and the common-law principles recognized in Hubbard. It is undisputed that there is no current express agreement among all parties regarding maintenance obligations. Plaintiffs argue that the maintenance servitude requiring "proportionate" contributions, which is contained in all but one of the parties' chains of title, should control. Under certain circumstances, a common servitude may be implied where most but not all deeds in a subdivision contain such language. See Khan v, Alpine Haven Prop. Owners' Ass'n (Khan I), 2016 VT 101, ¶ 30, 203 Vt. 251, 153 A.3d 1218 (discussing implied servitudes). But there is no indication that plaintiffs raised such an argument below, and they have not advanced that contention on appeal. Insofar as it was not fairly presented to the trial court, the court was not obligated to consider whether an implied servitude pertaining to maintenance obligations existed, and we will not entertain that issue for the first time on appeal. See...