Rupli v. South Mountain Heritage Soc'y, Inc.
| Decision Date | 22 December 2011 |
| Docket Number | No. 2555,Sept. Term,2009.,2555 |
| Citation | 33 A.3d 1055,202 Md.App. 673 |
| Parties | Brenda RUPLI v. SOUTH MOUNTAIN HERITAGE SOCIETY, INC. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Jacob I. Weddle (Gordon & Simmons, LLC, on the brief), Frederick, MD, for appellant.
Bethamy N. Beam, Frederick, MD, for appellee.
At issue in this case is the continued use of a well that has supplied water to a neighboring property since before 1973. Appellant Brenda Rupli (“Rupli”) appeals the grant by the Circuit Court for Frederick County of a motion for summary judgment in favor of appellee, the Southern Mountain Heritage Society, Inc. (“SMHS”), and the denial of summary judgment in her favor. She presents four questions which we have rephrased and consolidated as follows: did the circuit court err in granting summary judgment in favor of SMHS? 1
For the reasons that follow, we answer the question in the negative, and shall affirm the judgment of the circuit court.
In 1965, Moran Enterprises, Inc. (“Moran Inc.”) purchased the property at 1 E. Main Street, Burkittsville, MD (“the Rupli Property”). The property adjacent to the Rupli Property, 3 E. Main Street (“the Church Property”), was at that time owned by Resurrection Reformed Church of Burkittsville (“RRCB”). Some time prior to 1973, because the well on the Rupli Property was contaminated, RRCB granted Mr. Moran permission to use a well on the Church Property and to run piping between that well and the house on the Rupli Property. This well provided water to the Rupli property throughout Moran Inc.'s ownership of the Rupli Property.
Rupli and her former husband, Mr. Rupli, purchased the Rupli Property from Moran in 1973.3 At that time, Mr. Moran advised Mr. Rupli 4 that the well was used with permission from RRCB.5
In 1979, SMHS, a not-for-profit corporation, purchased the Church Property. At this time, SMHS knew of Rupli's use of the well, which continued after SMHS purchased the Church Property.
In 1998, Rupli approached SMHS with a deed of easement to the well on the Church Property, which she later described as an attempt to document “something she already had.” SMHS did not sign the deed of easement and, on November 16, 2005, SMHS directed Rupli to disconnect from the well because it had decided to hold events at the church which would require indoor plumbing.6 Rupli refused.
On September 14, 2009, SMHS filed an amended complaint in the Circuit Court for Frederick County seeking declaratory relief with respect to use of the well (Count I), and to quiet title to the well (Count II). In each count SMHS requested that the court:
F. Issue an award to SMHS of the costs of these proceedings, and G. Grant SMHS such other relief as the nature of this cause and justice requires.
The parties filed cross-motions for summary judgment on both counts.
On November 18, 2009, the court held a hearing on the motions for summary judgment, and on December 8, 2009, the court issued its “opinion and order” on the motions.7 Harmonizing Banks v. Pusey, 393 Md. 688, 904 A.2d 448 (2006), with Rau v. Collins, 167 Md.App. 176, 891 A.2d 1175 (2006), the court reasoned that
[w]hile Rau clearly demonstrates that the grant of permission between RRCB and Moran terminated upon the disposition of the property, it does not demand that that transfer raised a presumption of adversity as a matter of law.... Thus, where initial permission has been proven the burden remains on the claimant to show via affirmative evidence how and when the license was repudiated.... Absent unequivocal conduct giving the owner of the servient property notice of adversity, this Court will not conclude that a use initiated with permission could transform into one defined by hostility. Such a conclusion would damage the public interest of encouraging amicable relationships between neighbors.According to the circuit court, because the use of the well was “initiated with permission” to her predecessor in title, Rupli had the burden of proving adverse use with “affirmative evidence,” which she did not satisfy.
ORDERED that [Rupli] is required to remove all equipment from the Well that is designed to serve the Rupli property, and further, ORDERED that [Rupli] shall cooperate with SMHS by providing access to such portions of the Rupli Property, and take such other steps as may be necessary, to facilitate the disconnection of the Rupli Property from the Well on the Church Property.8
Maryland Rule 2–501 authorizes summary judgment where “there is no genuine dispute as to any material fact and ... the party in whose favor judgment is entered is entitled to judgment as a matter of law.” “Although a summary judgment in a declaratory judgment action is the exception rather than the rule, circumstances may warrant the entry of a full or partial summary judgment.” Loewenthal v. Security Ins. Co., 50 Md.App. 112, 117, 436 A.2d 493 (1981).
We review a trial court's grant or denial of a motion for summary judgment de novo to determine whether a dispute of material fact exists, and whether the movant is entitled to judgment as a matter of law. Haas v. Lockheed Martin Corp., 396 Md. 469, 479, 914 A.2d 735 (2007). We do “not attempt to decide any issue of fact or credibility, but only whether such issues exist.” Eng'g Mgmt. Servs. v. Md. State Highway Admin., 375 Md. 211, 226, 825 A.2d 966 (2003). In so doing, we review “the same material from the record and decid[e] the same legal issues as the circuit court.” Lopata v. Miller, 122 Md.App. 76, 83, 712 A.2d 24 (1998).
“When both sides file cross-motions for summary judgment ... the judge must assess each party's motion on its merits, drawing all reasonable factual inferences against the moving party,” MAMSI Life & Health Ins. Co. v. Callaway, 375 Md. 261, 278, 825 A.2d 995 (2003) (citation omitted), but “it does not follow that the circuit court must grant one of the motions,” Callaway v. MAMSI Life & Health Ins. Co., 145 Md.App. 567, 580, 806 A.2d 274 (2002), rev'd on other grounds, 375 Md. 261, 825 A.2d 995 (2003), for the filing of “cross-motions for summary judgment is not dispositive of the absence of a genuine dispute of material fact.” Taylor v. NationsBank, N.A., 365 Md. 166, 174, 776 A.2d 645 (2001). But where the litigants file cross-motions for summary judgment and there are no disputes of material fact, “it is clear that one of these motions should be granted.” Cook v. Alexandria Nat'l Bank, 263 Md. 147, 149, 282 A.2d 97 (1971). In this case, both parties agreed that there were no disputes of material fact.9
Rupli contends that “the Circuit Court improperly acted as the trier of fact, inappropriately decided [SMHS's] intent and motives in relation to permission, and incorrectly resolved inferences and factual disputes against [Rupli], the non-moving party.” In support of these contentions, Rupli offers the circuit court's statement that SMHS “tolerated” Rupli's use of the church well: 10
[t]he Circuit Court's fact finding—that is, that ... Rupli's use of the Well since 1973 was permissive because [SMHS] subjectively tolerated her use—has poisoned its entire ruling. The Circuit Court accepted [SMHS's] allegations that it tolerated ... Rupli's usage of the Well as true (in the face of powerful, contrary inferences), and substituted its judgment for that of the jury. Indeed, the Circuit Court usurped the jury's preliminary function—to weigh the evidence and to make factual findings. The Circuit Court, in essence, transformed the summary judgment procedure into a bench trial.
We are not persuaded that the circuit court's statements that SMHS “tolerated” Rupli's use of the well constituted an impermissible finding of fact. See Eng'g Mgmt. Servs. v. Md. State Highway Admin., 375 Md. 211, 226, 825 A.2d 966 (2003). Rather, looking at the opinion as a whole, the court's use of this term arose out of its legal conclusion that Rupli's use of the well was presumptively permissive, and Rupli failed to proffer facts that would be legally sufficient to rebut this presumption. See Zimmerman v. Summers, 24 Md.App. 100, 106, 330 A.2d 722 (1975) (quoting Cox v. Forrest, 60 Md. 74, 80 (1883)) (“[A]n adverse right of an easement cannot grow out of a mere permissive enjoyment, the real point of distinction being between a permissive or tolerated user, and one which is claimed as a matter of right.”) (emphasis added). The court did not, so to speak, “put the cart before the horse.”
“A prescriptive easement arises when a party makes an adverse, exclusive, and uninterrupted use of another's real property for twenty years.” Kirby v. Hook, 347 Md. 380, 392,...
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