Testa's, Inc. v. Jack Coopersmith , 2014 Me. LEXIS 148 ( 2014 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 137
Docket: BCD-14-43
Argued: November 6, 2014
Decided: December 9, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, JABAR, and HJELM,
JJ.
TESTA’S, INC.
v.
JACK COOPERSMITH et al.
SILVER, J.
[¶1] Testa’s, Inc., appeals from a judgment entered in the Business and
Consumer Docket (Nivison, J.) after a bench trial, finding that a 1978 agreement
granted an appurtenant easement over property belonging to Testa’s for the benefit
of Jack and Sherri Coopersmith’s predecessors-in-title. Testa’s contends that the
court erred in concluding that (1) the 1978 agreement was enforceable and created
an easement, and (2) alternatively, the Coopersmiths have a prescriptive easement
over the Testa’s property. We affirm the judgment.
I. BACKGROUND
[¶2] Based on the evidence presented at trial, the court found the following
facts. Both parties own property on the westerly side of Main Street in Bar Harbor.
Testa’s owns several contiguous parcels, including a restaurant and a large parking
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lot behind the buildings on Main Street, and Jack and Sherri Coopersmith own two
contiguous parcels that abut the Testa’s parking lot. The Coopersmiths’ parcels
comprise retail jewelry businesses and upstairs rental properties with space for
parking behind the buildings. The Coopersmiths’ southerly parcel (the
Coopersmith building) abuts the Testa’s parking lot to the north and east, and the
rear of their northerly parcel (the Tourmaline building) abuts the Testa’s parking
lot to the east.1
[¶3] Between the 1950s and 1970s, the Coopersmiths’ predecessors-in-title
accessed the rear of their properties for business deliveries and other purposes via
an area behind Main Street known as the “backyard,” which Testa’s owns. In the
1970s, the predecessors-in-title to Testa’s, Joseph and Michele Testa, made plans
to expand the parking lot behind the buildings on Main Street. The plans included
building a concrete retaining wall that would block the Coopersmiths’
predecessors-in-title from accessing the rear of their property. At that time, Phillip
and Nathan Sanborn owned the Coopersmith building and Catherine Riccardo
owned the Tourmaline building. After learning of the planned construction, the
Sanborns, together with Riccardo and Joan Purcell, 2 sued the Testas on
1
The Coopersmiths own one parcel in their names and the other in the name of their LLCs,
Tourmaline King, LLC and Tourmaline Queen, LLC.
2
Joan Purcell, Riccardo’s daughter, operated an art gallery in the Tourmaline building. Purcell
originally bought the Tourmaline building with her husband but transferred the property to her mother
3
September 9, 1977. The complaint alleged that the construction would prevent the
access to the rear of their property that they and their predecessors historically had.
The court granted a temporary restraining order that same day, prohibiting the
Testas from interfering with the plaintiffs’ access to the rear of their buildings.
[¶4] Through their attorneys, the parties eventually negotiated a written
agreement in June 1978. The Testas agreed that both Riccardo and Sanborn “shall
have access by foot or motor vehicle over lands of Testa to the westerly side of”
their land. The agreement provided that in the event the Testas built a fence or
installed a gate that “in any way imped[ed] said access over land of Testa to land
of Sanborn or Riccardo,” the Testas “shall provide” tokens or keys to access the
gate. In other words, if the Testas proceeded with the construction of the retaining
wall, the Sanborns and Riccardo would have access to the rear of their properties
through a different route. The keys and tokens were to be used by “Riccardo,
Sanborn, their immediate families, for delivery purposes or persons occupying said
land of Sanborn and Riccardo under a written lease.” Abuse of that access would
terminate the agreement.
[¶5] Four people—Joseph Testa, Michele Testa, Philip Sanborn, and Nathan
Sanborn—signed the agreement in June 1978. The fifth party, Catherine Riccardo,
after her husband faced potential liability following a car accident in 1971. Riccardo conveyed the
building back to Purcell in 1984.
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never signed the agreement. The Testas subsequently expanded the parking lot,
built the concrete retaining wall, and installed a gate. The Sanborns and Joan
Purcell then consistently accessed the rear of their properties through the gate (and
over the parking lot) using tokens provided by the Testas. The lawsuit was
dismissed for lack of prosecution in October 1980, and the agreement was recorded
in the Hancock County Registry of Deeds in February 1981. The Testas removed
the token-operated gates in May 1993.
[¶6] The Coopersmiths bought the Coopersmith building in 2005. In 2010,
the town of Bar Harbor passed an ordinance providing that businesses were no
longer required to have minimum parking space available for customers, making
the Testa’s parking lot available for development. Testa’s sued the Coopersmiths
and Joan Purcell on May 28, 2010, seeking a declaratory judgment that the
Coopersmiths do not have a right of way over its property. The Coopersmiths
counterclaimed, arguing that they have an express, prescriptive, or implied
easement over Testa’s property. Purcell, from whom the Coopersmiths had
previously rented, conveyed the Tourmaline building to the Coopersmiths on
December 24, 2012.
[¶7] The case was transferred to the Business and Consumer Docket and a
three-day bench trial was held September 9-11, 2013. On October 1, 2013, the
court entered judgment, finding that the 1978 agreement granted an appurtenant
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easement over the Testa’s property to the rear of the Coopersmith and Tourmaline
buildings. After discussing post-trial motions with the parties, the court issued a
superseding final decision and judgment on November 22, 2013. It addressed
additional issues and found that (1) the statute of frauds did not bar the 1978
agreement, (2) the agreement did not convey a mere license, (3) the Coopersmiths
did not abuse the easement, (4) the Coopersmiths alternatively had a prescriptive
easement over Testa’s property, and (5) the Coopersmiths did not have an implied
easement. On January 6, 2014, the court denied motions by Testa’s for a new trial
and to alter or amend the final judgment. It granted in part a motion by Testa’s for
findings of fact and conclusions of law and amended the judgment to provide a
more specific description of the Coopersmiths’ easement over the Testa’s property.
Testa’s timely appealed.
II. DISCUSSION
A. The Enforceability of the 1978 Agreement
[¶8] Testa’s argues that the 1978 agreement is unenforceable because one of
the five parties, Catherine Riccardo, did not sign it. “A contract exists when the
parties mutually assent to be bound by all its material terms, the assent is either
expressly or impliedly manifested in the contract, and the contract is sufficiently
definite.” McClare v. Rocha, 2014 ME 4, ¶ 16, 86 A.3d 22 (quotation marks
omitted). The existence of an enforceable contract is a question of fact that we
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review for clear error. See Thurston v. Galvin, 2014 ME 76, ¶ 11, 94 A.3d 16;
McClare, 2014 ME 4, ¶ 16, 86 A.3d 22 (“Whether a contract exists, the intent of
the parties in entering into a contract, and whether a breach occurred are questions
of fact.”). We will affirm a trial court’s findings of fact if they are supported by
competent record evidence, and we “examine the record, and the reasonable
inferences that may be drawn from the record, in the light most favorable to the
trial court’s judgment.” Pelletier v. Pelletier, 2012 ME 15, ¶ 13, 36 A.3d 903
(quotation marks omitted).
[¶9] There was no error here under our deferential standard of review noted
in Pelletier. First, the court properly found that Riccardo’s signature was
unnecessary to establish a binding agreement between the Testas and the Sanborns
as to the Coopersmith building. The Testas and the Sanborns were the only parties
necessary to come to agreement regarding access over the Testas’ parking lot for
the benefit of the Coopersmith building. Second, the trial court’s finding that
Riccardo consented to the terms of the 1978 agreement is not clearly erroneous.
Riccardo’s daughter, Joan Purcell, testified that she conveyed the Tourmaline
building to her mother in order to protect the asset—in other words, Riccardo was
an owner “in name only” and it was Purcell, not Riccardo, who occupied the
property. Purcell testified that she understood that the 1978 agreement allowed her
to access her parking area behind the Tourmaline building over the Testa’s parking
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lot. The court found no evidence that Riccardo (or anyone else) had concerns
about the terms of the agreement. Purcell consistently accessed the Tourmaline
property in accordance with the agreement and without objection from the Testas.
Based on these particular facts, the court did not clearly err in concluding that
Riccardo’s failure to sign the agreement was not the result of any objection she had
to it. The 1978 agreement, which both Testas signed and the parties followed for
many years, is valid and enforceable.
B. The Scope of the 1978 Agreement
[¶10] Testa’s argues that the 1978 agreement could reasonably be read to
convey only a license, and not an easement, and is therefore ambiguous. It
contends that the court erred in excluding the testimony of Douglas Chapman,
Esq., the attorney who drafted the 1978 agreement. Alternatively, Testa’s asserts
that the agreement unambiguously granted a license rather than an appurtenant
easement.
[¶11] “The construction of language creating an easement is a question of
law. If the language . . . is ambiguous, however, extrinsic evidence may be
considered to determine the intent of the parties.” Anchors v. Manter,
1998 ME 152, ¶ 16, 714 A.2d 134 (citation omitted); see Laux v. Harrington,
2012 ME 18, ¶ 11, 38 A.3d 318 (“[T]he scope of a party’s easement rights must be
determined from the unambiguous language on the face of the deed. Only if
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language in a deed is ambiguous may a court consider extrinsic evidence to
determine the intent of the parties.” (quotation marks omitted)). We review
de novo whether language in a contract is ambiguous. Id. “If we determine that
[a] contract is unambiguous, then its interpretation is also a question of law. On
the other hand, if the contract is ambiguous, then its interpretation is a question of
fact for the factfinder,” in which case we review the trial court’s conclusion for
clear error. Am. Prot. Ins. Co. v. Acadia Ins. Co., 2003 ME 6, ¶ 11, 814 A.2d 989
(citation and quotation marks omitted).
[¶12] Generally speaking, “[a]n easement is a right of use over the property
of another.” Stickney v. City of Saco, 2001 ME 69, ¶ 31, 770 A.2d 592; see Marvin
M. Brandt Revocable Trust v. United States, 134 S. Ct. 1257, 1265 (2014) (“An
easement is a nonpossessory right to enter and use land in the possession of
another and obligates the possessor not to interfere with the uses authorized by the
easement.” (quotation marks omitted)). The law recognizes two general types of
easements: appurtenant and in gross. Stickney, 2001 ME 69, ¶ 31, 770 A.2d 592.
An appurtenant easement, which must be attached or related to a dominant estate,
entitles the dominant estate’s owner to the use of a servient estate’s land in some
manner. See id. Appurtenant easements run with the land. Id. “In contrast,
easements in gross are personal interests in land or the right to use another’s land.
They are not appurtenant to any estate in land and do not belong to any person by
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virtue of his ownership of an estate in other land.” Wentworth v. Sebra, 2003 ME
97, ¶ 13, 829 A.2d 520 (citation and quotation marks omitted).
[¶13] An easement may also be subject to defeasance based upon the
occurrence of a future event. See Eis v. Meyer, 555 A.2d 994, 996
(Conn. App. Ct. 1989), aff’d, 566 A.2d 422 (Conn. 1989) (“[A]n easement may be
created which will terminate upon the happening of an event or contingency, or
which may be terminated on the occurrence, [or] breach . . . of a condition . . . and
the limitation or condition will ordinarily be enforced unless it is not sufficiently
definite . . . or is contrary to law or public policy.” (quotation marks omitted)
(alterations in original)); Rollins v. Blackden, 99 Me. 21, 25, 58 A. 69 (1904)
(describing as determinable the “grant of the right to draw water from [a] well”
because it would be terminated upon sale of the land bearing the well).3
[¶14] A license, on the other hand, is a “personal privilege to do an act or
acts in relation to another’s land.” Reed v. A. C. McLoon & Co.,
311 A.2d 548, 552 (Me. 1973). Unlike an easement, “[a] license creates no interest
in land, may be created orally, and is revocable, unless coupled with an interest.”
3
See also Akasu v. Power, 91 N.E.2d 224, 226 (Mass. 1950) (“An easement may be granted
which will terminate upon the happening of some particular act or upon the non-performance of
a condition subsequent.”); The Law of Easements & Licenses in Land § 10:3 (2014) (“A
defeasible easement may be structured in such a way that the easement either (1) ends
automatically upon the happening of the stated event, in which case it is a determinable
easement, or (2) is subject to termination by an affirmative act of the servient estate owner
whenever the specified event occurs, in which case it is an easement subject to a condition
subsequent.” (footnotes omitted) (citing cases)).
10
Id. n.7. An easement is therefore “of more permanent character” than a license.
Id.; see, e.g., Waterville Estates Ass’n v. Town of Campton, 446 A.2d 1167, 1169
(N.H. 1982) (describing a license as “a transient or impermanent interest”).
[¶15] In issuing its decision, the trial court acknowledged that both of the
parties’ experts had opined that, if the agreement were valid, its language conveyed
an appurtenant easement. We agree. It granted an appurtenant easement over the
Testas’ parking lot for the benefit of Riccardo’s and the Sanborns’ buildings. As
the plain language of the agreement states, the Testas agreed that both Riccardo
and the Sanborns “shall have access by foot or motor vehicle over the lands of
Testa” to the westerly and southerly sides of their respective parcels. The
agreement “confers more than a revocable, temporary right to act,” Reed, 311 A.2d
at 552—it guarantees open-ended access after the installation of a fence and
token-operated gates. With the construction of the concrete retaining wall, the
Sanborns and Riccardo (and Purcell) would have no other way to reach the rear of
their properties. The agreement clearly “benefit[s] a dominant estate,” Wentworth,
2003 ME 97, ¶ 12, 829 A.2d 520—two estates, in this case—and is subject to
termination only upon abuse.
[¶16] Testa’s relies on the termination language to argue that the agreement
could be read to convey a license and is therefore ambiguous. Alternatively, it
argues that the agreement unambiguously granted a license. But unlike a license,
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the 1978 agreement is not revocable at will. See, e.g., The Law of Easements &
Licenses in Land § 1:5 (2014) (“Specifying a power to terminate for a particular
reason or in limited circumstances may be seen as inconsistent with the unabridged
right to revoke retained by one who grants a license. Moreover, an easement may
be expressly subject to termination by the servient owner upon the occurrence of a
specified event.” (footnotes omitted)); Riverwood Commercial Park, LLC v.
Standard Oil Co., 797 N.W.2d 770, 777 (N.D. 2011) (finding that a “permit
constituted an easement,” not a license, because it “is not revocable at the will of
the landowner, but is subject to termination only under limited circumstances”).
That the access was structured to end upon the happening of a “specified event” in
the agreement—abuse of the access—does not transform it into a license. The Law
of Easements & Licenses in Land § 10:3 (2014); see Akasu v. Power,
91 N.E.2d 224, 226 (Mass. 1950). In its amended judgment, the trial court found
that the Coopersmiths had not abused the easement and Testa’s does not appeal
that finding here.
[¶17] For these reasons, the court did not err in determining that the
language of the 1978 agreement unambiguously granted an appurtenant easement
and excluding Chapman’s testimony. See Sleeper v. Loring, 2013 ME 112, ¶ 16,
83 A.3d 769 (“When interpreting a deed whose terms are not ambiguous, we do
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not speculate about the grantors’ actual or probable objectives; rather, we focus on
what is expressed within the four corners of the deed.”).
III. CONCLUSION
[¶18] The trial court properly concluded that the 1978 agreement (1) is
enforceable against Testa’s and (2) granted an appurtenant easement. Because of
our holding, we do not reach the parties’ prescriptive-easement arguments.
The entry is:
Judgment affirmed.
On the briefs:
Aaron K. Baltes, Esq., Norman, Hanson & DeTroy, LLC, Portland,
for appellant Testa’s, Inc.
David A. Soley, Esq., and Glenn Israel, Esq., Bernstein, Shur,
Sawyer & Nelson, Portland, for appellees Jack N. Coopersmith,
Sherri L. Coopersmith, Tourmaline King, LLC, and Tourmaline
Queen, LLC
Gerald O. Fournier, Esq., Richardson, Whitman, Large and Badger,
Bangor, for appellees Jack N. Coopersmith and Sherri L.
Coopersmith
At oral argument:
Aaron K. Baltes Esq., for appellant Testa’s, Inc.
David Soley for appellees Jack N. Coopersmith, Sherri L.
Coopersmith, Tourmaline King, LLC, and Tourmaline Queen, LLC
Business and Consumer Docket docket number RE-2011-3
FOR CLERK REFERENCE ONLY