Kebreab Zere v. District of Columbia

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-CV-829
KEBREAB ZERE, APPELLANT,
v.
DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(CAB-772-16)
(Hon. Brian F. Holeman, Trial Judge)
(Submitted September 21, 2018 Decided June 6, 2019)
Kebreab Zere, appellant pro se.
Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General, Stacy L. Anderson, Acting Deputy Solicitor General,
and James C. McKay, Jr., Senior Assistant Attorney General, were on the brief for
appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, EASTERLY, Associate Judge, and
NEBEKER, Senior Judge.
BLACKBURNE-RIGSBY, Chief Judge: Pro se appellant Kebreab Zere appeals
the trial court’s July 7, 2017, order granting appellee District of Columbia’s motion
for summary judgment and entering a declaratory judgment that the public has a
prescriptive easement to traverse an alley between O and N Streets, NW, for which
2
he is the property owner. 1 Mr. Zere argues that the trial court erred in granting
summary judgment in favor of the District, and that the establishment of a
prescriptive easement constitutes a de facto unconstitutional taking of property
without just compensation. We affirm.
I.
Mr. Zere purchased five of the six lots forming the alley between the row
houses located in the 3200 block of O Street, NW and the 3200 block of N Street,
NW from tax sales. Mr. Zere acquired title to each of the lots in separate tax-sale
foreclosure actions between 2006 and 2011. Mr. Zere appears to be an
experienced tax-lien purchaser. 2 Subsequently, he attempted to erect a fence to
block the alley, and combine the five lots into one. However, the Historic
1
A prescriptive easement is an interest in land owned by another, consisting
of the right to use or control the land for a specific limited purpose, that is
established by a claimant’s open, notorious, continuous, and adverse use for the
statutory period of fifteen years. Martin v. Bicknell, 99 A.3d 705, 711-712 (D.C.
2014). We clarified in Martin that, while the use of a prescriptive easement must
be adverse, unlike an adverse possession claim, a plaintiff need not show the
element of exclusivity to make out a claim of a prescriptive easement because
“servitudes are generally not exclusive.” Id. at 711, 713-714 (quoting
RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.17 cmt. g (AM. LAW. INT. 2000)).
2
Between 2004 and 2016, Mr. Zere filed twenty tax-sale foreclosure
actions.
3
Preservation Review Board denied Mr. Zere’s proposed consolidation of the five
lots.
In response to Mr. Zere’s attempt to block the alley, the District of Columbia
filed a complaint for declaratory judgment and injunctive relief against Mr. Zere to
prevent his interference with the public’s right to traverse the alley. The District
subsequently filed a motion for summary judgment alleging that the lots owned by
Mr. Zere were encumbered by a public prescriptive easement, and that Mr. Zere
took title to the lots subject to that easement. The District argued that members of
the public had traversed the alley for many years, that this use was open, notorious,
adverse, and continuous for over fifteen years, from 1980 to 1995, and, thus, a
public prescriptive easement had been established by 1995. The District further
asserted that, although the alley was privately owned, the District had long
recognized its public use, which was evidenced, in part, by the District of
Columbia Department of Transportation’s (“DDOT”) maintenance of the street
light in the alley and pavement of the alley in 2003. The District further alleged
that the easement over the alley was perfected by 1995, before Mr. Zere acquired
title, and that the District’s request for declaratory judgment was not a new
acquisition that would constitute a taking or require compensation.
4
As part of its motion for summary judgment, the District filed a statement of
undisputed material facts, pursuant to Super. Ct. Civ. R. 12-I(k), which was
supported by declarations from three individuals who lived in townhouses abutting
the alley — John Queenan, Gerald Turner, and Mary Carter. Taken together, the
three declarations asserted that, from 1980 to at least 1995, the residents used the
alley daily without asking permission. The declarants also observed members of
the public using the alley on a daily basis for a number of purposes without asking
for permission. Moreover, the declarants assert that the public’s usage of the alley
is visible to anyone who lives adjacent to it, or who has passed by it in recent
years.
Mr. Zere did not file a statement of disputed material facts pursuant to Rule
12-I(k) in response to the District’s motion for summary judgment. As a result, the
trial court was entitled to assume that the facts set forth in the District’s statement
of undisputed material facts were admitted without controversy. See Jane W. v.
President & Dirs. of Georgetown Coll., 863 A.2d 821, 826 (D.C. 2004). In his
subsequent opposition to the summary judgment motion, Mr. Zere made the
following arguments: (1) there were no records maintained by DDOT to support a
public prescriptive easement, and DDOT only repaved the alley once in 2003; (2)
the easement does not meet the adversity element of a prescriptive easement
5
because the trespassing is permissive; and (3) any prescriptive easement was
extinguished by the tax-sale foreclosure. Mr. Zere further argued in his opposition
that, under the Takings Clause of the Fifth Amendment, he should be compensated
for the value of the lots.
The trial court granted summary judgment in favor of the District. The trial
court held that there was no material disputed issue of fact that the public had
traversed the alley openly, notoriously, continuously, and adversely in excess of
the fifteen-year statutory period to establish a public easement by prescription.
The trial court also held that pursuant to D.C. Code § 47-1382(a)(3) (2012 Repl.),
the alley was conveyed to Mr. Zere subject to a public easement observable by an
inspection of the property. The trial court explained that the alley was “clearly
burdened” by the public’s right to traverse it, and this right was easily observable
to any tax-lien purchaser. This appeal followed.
6
II.
A. Summary Judgment
We review a trial court’s order granting summary judgment de novo.
Newmyer v. Sidwell Friends, 128 A.3d 1023, 1033 (D.C. 2015). Mr. Zere’s first
argument is legal in nature, in which he claims his tax-sale purchase of the lots
extinguished all unrecorded easements. To the extent that Mr. Zere is raising a res
judicata defense, we conclude it to be without merit. D.C. Code § 47-1382(a)(3)
provides that tax-sale purchasers take a fee simple interest in property subject to
“[e]asements of record and any other easement that may be observed by an
inspection of the real property.” (emphasis added). Therefore, the tax sale would
not have extinguished any preexisting easement. 3 The question then becomes
whether such an easement existed and, in particular, whether the trial court could
make this determination on summary judgment.
3
Mr. Zere also argues that the District should not have sold him the lots in a
tax-sale if the entire alley was burdened with the easement and therefore had no
value. Regardless of the validity of this claim, it does not affect the existence of
the easement. Furthermore, Mr. Zere was required to first raise this argument in a
counterclaim with the trial court, and he failed to do so.
7
In determining whether summary judgment was appropriate, we view the
evidence in the light most favorable to the non-prevailing party and we draw all
reasonable inferences in that party’s favor. Liu v. U.S. Bank Nat’l Ass’n, 179 A.3d
871, 876 (D.C. 2018). Summary judgment is appropriate where there is no
genuine issue of material fact and a party is entitled to a judgment as a matter of
law. Id. (citation and internal quotation marks omitted). Once a party provides
sufficient evidence to establish its entitlement to judgment as a matter of law, the
burden shifts to the adverse party to set forth facts placing issues in dispute.
Newmyer, 128 A.3d at 1033. The opposing party cannot rely solely on denials.
See, e.g., Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 249 (1986) (non-moving
party must provide “sufficient evidence supporting the claimed factual dispute” in
order to defeat a motion for summary judgment) (internal citations omitted);
Newmyer, 128 A.3d at 1033 (“mere ‘conclusory allegations’ are insufficient to
defeat the [summary judgment] motion.”) (internal citations omitted).
“An easement is an interest in land owned by another person, consisting in a
specific limited right to use or control the land.” Martin, 99 A.3d at 708 (internal
alternations, brackets, and citation omitted). The elements to establish a
prescriptive easement by the public are the same elements required to establish a
private prescriptive easement, and the burden rests on the claimant to show by a
8
preponderance of the evidence that a prescriptive easement was established.
Hefazi v. Stiglitz, 862 A.2d 901, 910 (D.C. 2004); see also 25 AM. JUR. 2D
Easements and Licenses § 36 (2014). To establish the existence of a prescriptive
easement, a claimant must demonstrate that use of another’s land was open,
notorious and adverse for a period of at least fifteen years. Martin, 99 A.3d at 711;
see also D.C. Code § 12-301(1) (2012 Repl.) (statute of limitations for bringing a
claim for the recovery of land is fifteen years). The sole element that Mr. Zere
takes issue with is whether the use was adverse.
Adverse use of land is use executed in a manner that does not recognize the
right of the landowner to stop it. Chaconas v. Meyers, 465 A.2d 379, 382 (D.C.
1983). Adversity may be presumed from proof of open and continuous use for the
statutory period absent contrary evidence. Id. Permissive use can defeat a claim of
adversity, and can be granted explicitly or implicitly by the landowner through the
interactions between the parties. See id. at 382-383. However, mere acquiescence
is not permission. Martin, 99 A.3d at 712.
The District’s statement of facts supported each of the requisite elements of
a prescriptive easement. The declarations of three residents of townhouses
abutting the alley—Queenan, Turner, and Carter—showed that the public’s use
9
was open, notorious, and adverse for the fifteen-year statutory period. Mr.
Queenan resided in a townhouse abutting the alley from 1980 until 2016, and
stated that during those thirty-six years he used the alley daily and observed his
neighbors and the public use the alley daily. Mr. Queenan stated that the alley had
never been blocked, aside from a few rare occasions “when the United States
government did so for security reasons.” Mr. Queenan further stated that he never
asked nor observed anyone else ask for permission to use the alley and that he did
not believe that anyone had a right to stop him from using the alley.
Mr. Turner and Ms. Carter, who have been residing in townhouses abutting
the alley since 1989 and 1996, respectively, corroborated Mr. Queenan’s
declaration. Mr. Turner and Ms. Carter both stated that since they began living in
their townhouses they have used the alley daily and have observed members of the
public use the alley in a multitude of fashions. Mr. Turner and Ms. Carter stated
that they have never asked for permission to use the alley, nor have they observed
anyone else asking for permission to use the alley, nor did they believe anyone had
the right to stop them from using the alley. Mr. Zere did not file a statement of
disputed material facts pursuant to Super. Ct. Civ. R. 12-I(k), and therefore, the
trial court was entitled to consider the District’s evidence as undisputed. See Jane
W., 863 A.2d at 826.
10
Mr. Zere contends that he raised material disputes of fact in his opposition to
the District’s motion for summary judgment. We disagree that Mr. Zere created
any material disputes within his opposition. Mr. Zere contends that the declarants
lacked credibility because he was not able to cross-examine the declarants.
However, Mr. Zere’s credibility challenge is misplaced because, at the summary
judgement stage, the trial court does not assess credibility, and Mr. Zere is not
entitled to cross-examine the affiants. Anderson v. Ford Motor Co., 682 A.2d 651,
654 (D.C. 1996); see Bortell v. Eli Lilly & Co., 406 F. Supp. 2d 1, 11 (D.D.C.
2005) (agreeing with the Seventh Circuit that Rule 56 governing summary
judgment does not have a cross examination requirement); see also Journal of
Commerce, Inc. v. U.S. Dep’t of Treasury, 1987 WL 4922 at *3 (D.D.C. Jun. 1,
1987) (holding that there is “no automatic entitlement to cross-examination” at the
summary judgement stage because that “would in essence deprive [] defendants of
their right to move for summary judgment on the basis of appropriate affidavits.”). 4
4
Mr. Zere also argues that the declarations were in violation of the Dead
Man’s Statute, D.C. Code § 14-302(a) (2012 Repl.), but this statute does not apply.
The Dead Man’s Statute is intended to protect a deceased party from being
fraudulently held liable in a legal action where the only evidence of liability is the
claimant’s own assertion that the deceased was obligated to him in some fashion.
See Gray v. Gray, 412 A.2d 1208, 1212 (D.C. 1980). This is not the case here.
11
Mr. Zere contends that the District did not establish adversity because there
is a dispute as to whether the public’s use of the alley was merely permissive. He
claims that none of the declarants showed they ever made a claim of right on the
lots, nor did they maintain the lots, or interfere with the use of the lots by the
owner. However, other than denials, Mr. Zere presents no evidence to place this
issue in dispute. See Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 198-99
(D.C. 1991). Mr. Zere’s argument thus fails to refute the District’s prima facie
showing of adverse, open, and continuous public use of the alley. See Smith v.
Tippett, 569 A.2d 1186, 1190 (D.C. 1990) (“[P]ossession is adverse whenever
there is open and continuous use of another’s land for the statutory period, and this
presumption is effective to establish title in the absence of evidence to the
contrary.”).
Mr. Zere also claims that there is not a public prescriptive easement because
the testimony of a DDOT representative at a public hearing on a bill to condemn
the lots demonstrates that the agency did not recognize, or maintain, the alley as a
public alley. Mr. Zere asserts that this notion is supported by the absence of any
public record of the easement, the introduction of a bill to condemn the lots and
transfer ownership to the District, and the District’s collection of taxes.
Additionally, Mr. Zere argues that it was a contradiction for the Council to hold an
12
eminent domain hearing on the property at issue in 2015, when the District now
claims a prescriptive easement was created in 1995. None of these assertions,
however, defeat the creation of a public easement. The burden of establishing a
prescriptive easement does not require public knowledge or acknowledgment, but
only a demonstration of open, notorious, continuous and adverse use for the
statutory period. See Martin, 99 A.3d at 711. “[A] use is open and notorious if
knowledge of it is had by those who are or may be affected by it even though the
use is not a matter of common knowledge in the community.” RESTATEMENT
(FIRST) OF PROP. § 458 cmt. h (AM. LAW INST. 1944) (emphasis added). The
undisputed evidence shows that the property owners abutting the alley used the
alley and did not ask permission. Therefore, summary judgment was properly
granted in favor of the District on the issue of whether a prescriptive easement had
been established.
B. Takings Claim
Mr. Zere alternatively argues that, assuming a public easement existed, the
District should compensate him for the fair market value of the lots, under the
Takings Clause of the Fifth Amendment. Mr. Zere did not raise this as a
compulsory counterclaim in his answer to the complaint, see Super. Ct. Civ. R. 13
13
(a), but rather, first raised it in a motion to dismiss before the trial court. The trial
court, in its order denying his motion to dismiss, alerted Mr. Zere that this
argument was improperly presented in his motion.5 Mr. Zere, nevertheless, did not
raise this compulsory counterclaim. Therefore, he forfeited this claim.
III.
Accordingly, the judgment on appeal is affirmed.
So ordered.
5
In the order denying Mr. Zere’s motion, the trial court explained that such
a claim was not a valid ground for dismissal, nor was it properly presented in a
motion to dismiss.