Maher M. Mahmoud v. Town of Thornton & a. , 169 N.H. 387 ( 2016 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Grafton
No. 2015-0712
MAHER M. MAHMOUD
v.
TOWN OF THORNTON & a.
Submitted: June 9, 2016
Opinion Issued: September 20, 2016
Maher M. Mahmoud, self-represented party, by brief.
Mitchell Municipal Group, P.A., of Laconia (Steven M. Whitley on the
brief), for defendant Town of Thornton.
Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Robert E. Murphy, Jr.
on the brief), for defendants Winwin Properties, LLC, Gary T. Shulman, Anita S.
Shulman, Aaron Katz, and Jeremy Gavin.
Primmer Piper Eggleston & Cramer PC, of Manchester (Thomas J.
Pappas on the memorandum of law), for defendant Bank of New York, as
Trustee for the Certificate Holders CWABS, Inc. Asset-Backed Certificates,
Series 2006-15.
CONBOY, J. The plaintiff, Maher M. Mahmoud, appeals an order of the
Superior Court (MacLeod, J.) granting the summary judgment motion filed by
defendants Winwin Properties, LLC (Winwin), Gary T. Shulman, Anita S.
Shulman, Aaron Katz, and Jeremy Gavin, and denying the plaintiff’s cross-
motion for summary judgment. We affirm.
The relevant facts follow. In 2004, the plaintiff acquired title to an
approximately 17-acre parcel of land in Thornton. In April 2005, the plaintiff
received subdivision approval from the Thornton Planning Board to create Lot
1, a 1.06-acre parcel; he recorded the subdivision as Plan 11808 at the Grafton
County Registry of Deeds (registry of deeds). In July 2006, the plaintiff
mortgaged Lot 1 to Mortgage Electronic Registration Systems, Inc. (MERS) by
mortgage deed, recorded in the registry of deeds. The mortgage deed described
the property as Lot 1 as depicted on Plan 11808. The mortgage deed further
described the property:
TOGETHER WITH all the improvements now or hereafter erected
on the property, and all easements, appurtenances, and fixtures
now or hereafter a part of the property. All replacements and
additions shall also be covered by this Security Instrument. All of
the foregoing is referred to in this Security Instrument as the
“Property.”
Thereafter, the plaintiff received approval from the Thornton Planning
Board to further subdivide the approximately 17-acre parcel into a total of eight
lots; he recorded the subdivision as Plan 12600 at the registry of deeds in
December 2006. As part of this subdivision approval, the southerly boundary
of Lot 1 was relocated. Plan 12600 shows both the original Lot 1 lot line and
the new southerly lot line, and shows Lot 1 as consisting of 2.40 acres.
The plaintiff subsequently defaulted on his loan, and MERS foreclosed on
Lot 1. MERS conveyed Lot 1, pursuant to a foreclosure deed under power of
sale dated March 2008, to defendant Bank of New York, as Trustee for the
Certificate Holders CWABS, Inc. Asset-Backed Certificates, Series 2006-15
(Bank of New York). In June 2008, the Bank of New York conveyed Lot 1 to
Winwin by quitclaim deed. The deed from the Bank of New York to Winwin
included the same description as that contained in the 2006 mortgage deed,
with the additional phrase, “[s]ubject to any and all matters, including setbacks
if any, as shown on Plan No. 11808 and Plan No. 12600 recorded in [the
registry of deeds].” Winwin conveyed the property in May 2009 to defendants
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Gary and Anita Shulman, and the Shulmans conveyed the property in April
2014 to the current owners of Lot 1, defendants Aaron Katz and Jeremy Gavin.
In 2015, the plaintiff sued the defendants, asserting several claims
relating to the size of Lot 1. Winwin moved for summary judgment on the
plaintiff’s petition to quiet title to Lot 1, asserting that it had previously held
record title to the lot, which included the approximately 1.34 acres added to
Lot 1 by the lot line adjustment (the disputed land), because the description of
the property in the mortgage deed included any additions to the land. The
plaintiff cross-moved for summary judgment, asserting that the foreclosure
sale and mortgage deed were invalid, and that therefore he owns record title to
Lot 1, including the additional disputed land. The trial court granted Winwin’s
motion, finding that because the 2006 mortgage deed included any additions to
the land, “MERS obtained and could transfer the approximately 1.34 acres
added to Lot 1 by the lot line adjustment reflected in Plan 12600.” The trial
court subsequently denied the plaintiff’s motion for reconsideration, and this
appeal followed.
“In reviewing the trial court’s rulings on cross-motions for summary
judgment, we consider the evidence in the light most favorable to each party in
its capacity as the nonmoving party and, if no genuine issue of material fact
exists, we determine whether the moving party is entitled to judgment as a
matter of law.” Bovaird v. N.H. Dep’t of Admin. Servs., 166 N.H. 755, 758
(2014) (quotation omitted). “If our review of that evidence discloses no genuine
issue of material fact and if the moving party is entitled to judgment as a
matter of law, then we will affirm the grant of summary judgment.” Id.
(quotation omitted). “We review the trial court’s application of the law to the
facts de novo.” Id. (quotation omitted).
“A petition to quiet title quiets title as against the world with respect to
the land at issue.” Porter v. Coco, 154 N.H. 353, 357 (2006). “[T]he burden is
on the [petitioner] to prove good title as against all other parties whose rights
may be affected by the court’s decree.” Id. (quotation, brackets, and ellipses
omitted). The interpretation of a deed in a dispute to quiet title is a question of
law, which we review de novo. See Greenan v. Lobban, 143 N.H. 18, 21 (1998).
We will uphold the trial court’s determination in a quiet title action unless it is
erroneous as a matter of law or unsupported by the evidence. See Hersh v.
Plonski, 156 N.H. 511, 514 (2007).
The plaintiff asserts that “[t]he main focus of the appeal is whether Lot 1
is 2.40 acres or 1.06 acres.” He argues that “Plan No. 12600” was never part of
the mortgage with MERS and “should never have been mentioned” in the deed
from the Bank of New York to Winwin in 2008. (Emphasis omitted.) He
asserts that Plan 12600 “hosts Lots 2 through 8, [and] the original Mortgage
deed was surveyed with [metes] and bounds and set on its own Plan No.
11808.” (Bolding and citations omitted.) Thus, he argues that “MERS could
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not have deeded the disputed [additional] land because [it] was never part of
the loan.”
In resolving this issue, the trial court, noting that there are no New
Hampshire cases directly on point, found Hellweg v. Cassidy, 71 Cal. Rptr. 2d
798 (Ct. App. 1998), “particularly instructive.” In Hellweg, the appellant
obtained a loan secured by a deed on her residential property. Id. at 799. The
deed was assigned from the original lender to the Federal National Mortgage
Association (Fannie Mae). Id. The appellant subsequently recorded a lot line
adjustment to add land to the residential property from adjoining, unimproved
property that she also owned. Id.
Thereafter, Fannie Mae foreclosed on the property. Id. Upon sale, the
deed reflected the legal description of the property that existed before the lot
line adjustment; however, the deed also described the property:
Together with all the improvements now or hereafter erected on the
property, and all easements, rights, appurtenances . . . and all
fixtures now or hereafter a part of the property. All replacements
and additions shall also be covered by this Security Instrument.
All of the foregoing is referred to in this Security Instrument as the
“Property.”
Id. at 800 (quotation omitted). Fannie Mae sold the property to the
respondents by deed that included in the legal description of the property the
additional property resulting from the lot line adjustment. Id. The appellant
claimed that “because the deed . . . assigned to Fannie Mae and the . . . deed
upon sale in foreclosure did not specifically include the lot line adjustment,
and because the additional property had not been necessary to secure the loan,
the respondents [were] not entitled to the additional property.” Id. The court
disagreed, holding that the language of the deed was “clear and explicit,” and
“operate[d] automatically to add easements, fixtures and additions to the
secured property obtained after the deed was provided to the lender.” Id. The
court reasoned that, “[i]f this were not so, the conflict between the legal lot line
adjustment recorded by [the appellant] and the deed she provided in
foreclosure could jeopardize future alienation of” the adjacent, contiguous
property. Id. at 801.
Here, the trial court found that the mortgage deed contained “language
virtually identical to that in Hellweg,” and that such language, “like the
mortgage deed language in Hellweg, operate[d] automatically to add additions
to the secured property obtained after the deed was provided to the lender.”
(Quotation and ellipsis omitted.) The trial court concluded, therefore, that
“when [the plaintiff] adjusted the southerly lot line of Lot 1 after the execution
of the Mortgage Deed, thereby increasing the size of Lot 1 to 2.40 acres, this
additional acreage was automatically added to the secured property by virtue of
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the . . . language in the Mortgage Deed.” Because “MERS obtained and could
convey the approximate[ly] 1.34 acres added by this lot line adjustment,” the
trial court determined that defendants Katz and Gavin hold record title to the
disputed land and, accordingly, quieted title to Lot 1 in their names.
We agree with the trial court that the language in the mortgage deed
granted to MERS in 2006 clearly and automatically included any additions to
the mortgaged property. See Lussier v. N.E. Power Co., 133 N.H. 753, 756-57
(1990) (clear and unambiguous language in a deed is controlling). The 2006
mortgage deed plainly stated that it included, together with the legal
description of the property, “improvements . . . easements, appurtenances, and
fixtures now or hereafter a part of the property” and “[a]ll replacements and
additions.” Given this unambiguous language, the trial court correctly
concluded that MERS obtained and could convey the entire 2.40 acres that
comprise Lot 1. Accordingly, we affirm the trial court’s rulings on the cross-
motions for summary judgment and its ruling quieting title in defendants Katz
and Gavin to Lot 1, including the disputed additional land.
The plaintiff raises numerous additional challenges to the trial court’s
order, including its decision granting the Town’s motion to dismiss. As the
appealing party, the plaintiff has the burden of demonstrating reversible error.
Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our review of the trial
court’s order, the plaintiff’s challenges to it, the relevant law, and the record
submitted upon appeal, see Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250
(2004), we conclude that the plaintiff has not demonstrated reversible error.
See Gallo, 166 N.H. at 740.
Affirmed.
DALIANIS, C.J., and HICKS, LYNN, and BASSETT JJ., concurred.
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