RENA BRODHURST, Appellant/Respondent v. JEFFREY FRAZIER, Appellee/Petitioner
Brodhurst v. Frazier
HODGE, Chief Justice’, CABRET, Associate Justice’, and SWAN, Associate Justice.
RENA BRODHURST, Appellant/Respondent v. JEFFREY FRAZIER, Appellee/Petitioner
RENA BRODHURST, Appellant/Respondent v. JEFFREY FRAZIER, Appellee/Petitioner
S. Ct. Civil No. 2011-0003
Supreme Court of the Virgin Islands
September 12, 2012
Joel H. Holt, Esq., St. Croix, USVI, Attorney for Appellant.
ROBERTA. Waldman, Esq., Hamm Law Firm, St. Croix, USVI, Attorney for Appellee.
HODGE, Chief Justice’, CABRET, Associate Justice’, and SWAN, Associate Justice.
Although signed by the Superior Court judge on December 21,2010, the Clerk of the Superior Court did not enter the order until December 22, 2010. See V.I.S.Ct.R. 5(a)(9) (“A judgment or order is entered within the meaning of this Rule when it is entered in the docket in compliance with Superior Court Rule 49.”).
OPINION OF THE COURT
(September 12, 2012)
Hodge, Chief Justice.
Appellant Rena Brodhurst appeals from the Superior Court's December 22, 2010 Order, which entered summary judgment in favor of Appellee Jeffrey Frazier on his petition for declaratory judgment. For the reasons that follow, we reverse the grant of summary judgment and remand the matter to the Superior Court for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
Frazier filed a petition for declaratory judgment in the Superior Court on September 1, 2006. In his petition, Frazier stated that he had purchased Plot No. 119 Vista Concordia by warranty deed on December 16, 2003 from D.A. Lomax and his wife. Pursuant to this deed, the Lomaxes had conveyed to Frazier "Plot No. 119 . as more fully shown on OLG Drawing No. 4674," but "subject . to covenants, easements, and restrictions of record and all applicable laws and regulations." (J.A. 19.) According to Frazier, OLG Drawing No. 4674 showed a "30' Joint Use Driveway" extending from Plot No. 119 through the bottom of Plot No. 121, a parcel that the Lomaxes had conveyed to Brodhurst through a warranty deed on September 19, 2005, which contained language similar to the December 16, 2003 deed, but with respect to Plot No. 121 Frazier further alleged that the "30' Joint Use Driveway" had been established to provide him with access to Plot No. 119 — which was otherwise landlocked — and constituted an easement that Brodhurst had refused to honor.
On November 6, 2007, Frazier moved for summary judgment, relying upon —• among other authorities — section 2.13 of the Restatement (Third) of Property: Servitudes (2000) to support his claim that the phrase "Plot No. 119 . as more fully shown on OLG Drawing No. 4674" in the December 16, 2003 deed created an easement in the "30' Joint Use Driveway." Frazier filed, as an exhibit to his motion, an affidavit from Lomax stating that he intended for the "30' Joint Use Driveway" to be an easement so that the owner of Plot No. 119 would be able to access a public road, as well as an affidavit from R.W. Heffington — the surveyor who prepared and drew OLG Drawing No. 4674 — stating that the drawing was intended to reflect the "30' Joint Use Driveway" as an easement to be shared by Plot Nos. 119 and 121 to enable ingress and egress. As further support, Frazier submitted several unrecorded maps of the same properties that he argued clearly depicted an easement.
In her opposition, Brodhurst contended that she lacked notice that any easement existed at the time she purchased Plot No. 121. Through an affidavit attached as an exhibit to her opposition, Brodhurst stated that she "ha[s] purchased various properties on St. Croix from time to time over the past 20 years" and is thus "familiar with the documents generally involved in such transactions," but that OLG Drawing No. 4674 differed from similar maps because it "has multiple lines drawn across the eastern portion of [the] property, none of which are clear and none of which cause[d] [her] to believe that there was an easement across this property." (J.A. 84.) Additionally, Brodhurst noted that the alleged easement had never been recorded and was not specifically mentioned in the September 19, 2005 warranty deed, and stated that she had never seen any of the unrecorded maps relied upon by Frazier. (Id.) In his reply to the opposition, Frazier argued, among other things, that the Superior Court should disregard Brodhurst's affidavit because it was an "unfounded declaration." (J.A. 94.)
After Frazier filed his reply, the matter remained dormant in the Superior Court for more than two years, despite Frazier filing several documents requesting a ruling. In a December 22, 2010 Order, the Superior Court, relying solely on section 2.13 of the RESTATEMENT, granted Frazier's motion for summary judgment on the grounds that (1) the Lomaxes intended to provide an easement by referencing OLG Drawing No. 4674 in both deeds, and (2) the easement would benefit both Plot No. 119 and Plot No. 121. The Superior Court stated that it was "incredulous" of the statements in Brodhurst's affidavit "because reason dictates that any reasonable person would notice and be put on actual notice of the clearly labeled words: '30' Joint Use Driveway,' " that "it would be incumbent upon someone with experience in purchasing properties for over 20 years to notice and take account of the Joint Use Driveway," and that "[tjhere is no question then that [Brodhurst] understands that easements can be shown on maps." (J.A. 12.) Finally, the Superior Court held that Brodhurst "merely stated in her affidavit that the map does not show an easement, and she did not believe there was an easement upon purchase," which the Superior Court characterized as reliance on her pleadings and "mere allegations or denials." (J.A. 13.) Brodhurst timely filed her notice of appeal on January 18, 2011.
II. DISCUSSION
A. Jurisdiction and Standard of Review
"The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law." V.I. Code Ann. tit. 4, § 32(a). Because the Superior Court's December 22, 2010 Order constitutes a final judgment, this Court possesses jurisdiction over Brodhurst's appeal. See, e.g., Browne v. People, 56 V.I. 207, 216 (V.I. 2012).
"This Court exercises plenary review of a Superior Court's grant of summary judgment." Williams v. United Corp., 50 V.I. 191, 194 (V.I. 2008) (citing Maduro v. American Airlines, Inc., S. Ct. Civ. No. 2007-029, 2008 V.I. Supreme LEXIS 24, at *7 (V.I. Feb. 28, 2008) (unpublished)). "On review, we apply the same test that the lower court should have utilized." Id. "Because summary judgment is a drastic remedy, it should be granted only when 'the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.' " Id. (quoting former wording of Fed. R. Civ. P 56(c)). "When reviewing the record, this Court must view the inferences to be drawn from the underlying facts in the light most favorable to the non-moving party, and we must take the non-moving party's conflicting allegations as true if 'supported by proper proofs.' " Joseph v. Hess Oil V.I. Corp., 54 V.I. 657, 664 (V.I. 2011) (quoting Williams, 50 V.I. at 194-95). "[T]o survive summary judgment, the nonmoving party's evidence must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Id.
B. The Summary Judgment Award
In her appellate brief, Brodhurst contends that the Superior Court should not have granted Frazier's motion for summary judgment because (1) OLG Drawing No. 4674 is not "clear" and thus the Superior Court could not conclude that the map clearly identified an easement; and (2) the Superior Court made impermissible credibility determinations when it essentially disregarded her affidavit. We agree.
In its December 22, 2010 Order, the Superior Court relied upon section 2.13 of the Restatement (Third) of Property: Servitudes, which reads, in full, as follows:
In a conveyance or contract to convey an estate in land, description of the land conveyed by reference to a map or boundary may imply the creation of a servitude, if the grantor has the power to create the servitude, and if a different intent is not expressed or implied by the circumstances:
(1) A description of the land conveyed that refers to a plat or map showing streets, ways, parks, open space, beaches, or other areas for common use or benefit, implies creation of a servitude restricting use of the land shown on the map to the indicated uses.
(2) A description of the land conveyed that uses a street, or other way, as a boundary implies that the conveyance includes an easement to use the street or other way.
Restatement (Third) of Property: Servitudes § 2.13 (2000). Assuming without deciding that this provision is applicable to this case, we note that the comments to the Restatement clarify that, if a party submits evidence that the requirements of section 2.13 are met, there is only an inference that the parties intended for there to be an easement, which any other party may rebut by pointing to evidence of a contrary intent, with the strength of the evidence needed to rebut the inference of an easement varying based on the strength of the evidence — particularly the explicitness of the map — used to support the inference. Restatement (Third) of Property: Servitudes § 2.13 cmt. b; see also Boucher v. Boyer, 301 Md. 679, 484 A.2d 630, 635 (1984) ("As we see it, a deed that is silent as to the right of way but refers to a plat that establishes such a right of way creates a rebuttable presumption that the parties intended to incorporate the right of way in the transaction.") (emphasis added). However, "the most important indicators of the grantor's intent [are] the appearance of the subdivision map and the language of the original deeds." Heim v. Conroy, 211 A.D.2d 868, 621 N.Y.S.2d 210, 211 (N.Y.App. Div. 1995) (internal quotation marks omitted). This necessarily imposes a high burden on the party claiming an implied easement, given the general preference against encumbering property. See, e.g., Davey v. Artistic Builders, Inc., 263 S.C. 431, 211 S.E.2d 235, 237 (1975) ("restrictions as to the use of real estate should be strictly construed and all doubts resolved in favor of free use of the property").
Nevertheless, regardless of whether section 2.13 applies to this matter, Virgin Islands law imposes a similar notice requirement with respect to enforcing an unrecorded servitude. Pursuant to statute, "[e]very conveyance of real property hereafter made within the Virgin Islands which is not filed for record shall be void against any subsequent innocent purchaser in good faith and for a valuable consideration of the same real property, or any portion thereof, whose conveyance is first duly recorded." 28 V.I.C. § 124. This Court and other Virgin Islands courts have consistently interpreted this enactment as a race-notice statute, in which the failure to record an easement or other conveyance renders it unenforceable against a subsequent purchaser, but only if that purchaser lacks notice of the encumbrance. See Harvey v. Christopher, 55 V.I. 565, 574-75 (V.I. 2011) (collecting cases). For purposes of section 124, "[n]otice may be actual or constructive, and actual notice may be express or implied." Netsky v. Sewer, 205 F. Supp. 2d 443, 457 (D.V.I. 2002). "Constructive notice is a legal fiction designed to impute notice to a person not having actual notice where that person has knowledge of certain facts which should lead him to the ultimate fact." Id.
Here, it is undisputed that Brodhurst purchased Plot No. 121 for consideration, and that neither the Lomaxes nor Frazier ever recorded the purported easement with the Recorder of Deeds before Brodhurst purchased and recorded her interest. Likewise, the record contains no evidence that the Lomaxes had told Brodhurst that Plot No. 121 was encumbered, or that Brodhurst otherwise possessed actual notice of an easement. Thus, assuming that an implied easement exists, it is only enforceable against Brodhurst if OLG Drawing No. 4674 — which was referenced in the deed conveying Plot No. 121 — was sufficiently clear to provide her with constructive notice.
In this case, the Superior Court erred when it held that OLG Drawing No. 4674 (depicted below) is so unambiguous that one can interpret its meaning at the summary judgment stage:
While the text "30' Joint Use Driveway" does appear on the map, the arrow next to that text stops on the solid line setting the boundary between Plot No. 121, Plot No. 123, and Plot No. 119 and does not extend into Plot No. 121 itself, which could imply that the "30 Joint Use Driveway" text is referring to the boundary line rather than something separate that is completely encompassed within Plot No. 121, particularly given that the Lomax affidavit states that the line immediately above the boundary line is a " 'leader-line' denoting the location of Survey Point 'UU' " that has no relevance to the "30 Joint Use Driveway." (J.A. 53.) Although there is an arrow that points to a dotted line on Plot No. 121 — which the Superior Court characterized as "marking the boundary of the Joint Use Driveway" (J.A. 13) — there is no text on the map that explains the purpose of the arrow or the dotted line, let alone anything that would unquestionably place someone on notice that the arrow and the dotted line have any relevance to the "30' Joint Use Driveway" text. Given that the map is unclear, the Superior Court should not — at the summary judgment stage — have interpreted the meaning of the lines. Instead, it should have permitted the finder of fact, who would be able to weigh the evidence, to perform this task at trial. See, e.g., Hamilton v. CCM, Inc., 274 S.C. 152, 263 S.E.2d 378, 381 (1980) (wavy lines on map are ambiguous); Robidoux v. Pelletier, 120 R.I. 425, 391 A.2d 1150, 1155 (1978) (noting that meaning of road represented by dotted line, when other roads depicted with solid lines, constituted factual inquiry). See also, e.g., Stockbridge v. Gemini Air Cargo, Inc., 269 Va. 609, 618, 611 S.E.2d 600 (2005) (summary judgment "is a drastic remedy" and "should not be used to short-circuit litigation by deciding disputed facts without permitting the parties to reach a trial on the merits"). Therefore, we reverse the December 22, 2010 Order.
III. CONCLUSION
Even if an implied easement had been created pursuant to section 2.13 of the Restatement, section 124 of title 28 of the Virgin Islands Code precludes Frazier from enforcing the unrecorded encumbrance against Brodhurst if she lacked actual or constructive notice before she recorded her interest in Plot No. 121. Since OLG Drawing No. 4674 is not so clear and unambiguous as to warrant the trial court in concluding, as a matter of law, that there was no jury issue as to whether it was sufficient to have alerted Brodhurst that an easement may exist over the property, the Superior Court erred when it granted Frazier's motion for summary judgment. Accordingly, we reverse the December 22, 2010 Order and remand this matter to the Superior Court for further proceedings consistent with this Opinion.
It appears that the only significant difference between the December 16,2003 deed and the September 19,2005 deed — other than the parcels involved — is that the September 19,2005 deed provides that the conveyance is "subject... to all easements, covenants, restrictions, and rights of way of public record," (J.A. 21), while the December 16,2003 deed stated that it was "subject... to covenants, easements, and restrictions of record and all applicable laws and regulations." (J.A. 19.)
The Superior Court, in its December 22, 2010 Order, found that section 2.13 of the Restatement applied to this dispute by virtue of title 1, section 4 of the Virgin Islands Code, which provides that "[t]he rules of the common law, as expressed in the restatements of the law approved by the American Law Institute . shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary." However, nearly a year after the Superior Court rendered its decision — and more than five months after this appeal was submitted for a decision — this Court, in response to a certified question from the United States Court of Appeals for the Third Circuit, held
that the adoption of section 21 of title 4 in 2004 supersedes and alters section 4 of title 1, which is one of the initial provisions of the Virgin Islands Code that were adopted in 1957, and that therefore this Court and — to the extent not bound by precedent, the Superior Court — may determine the common law without automatically and mechanistically following the Restatements.
Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967, 979 (V.I. 2011) (citations omitted). In Banks this Court also clarified that when the parties to an appeal do not "expressly request that this Court exercise its inherent power to adopt a different rule... this Courtis notinclined to do so sua sponte without receiving the benefit of briefing by the parties." Id. at 984 n.9.
As noted later in this opinion, reversal of the summary judgment is required regardless of whether section 2.13 applies to this case because a genuine issue of material fact exists as to whether Brodhurst had notice of the alleged unrecorded easement pursuant to section 124 of title 28. On remand, however, the parties may brief the Superior Court as to whether it should apply section 2.13, or apply a different common law rule.
In its December 22, 2010 Order, the Superior Court heavily relied on the contents of the Lomax affidavit to hold that an easement by implication existed pursuant to section 2.13, since Lomax stated in his affidavit that he intended to create an easement. However, even if section 2.13 is applicable to this matter and the Superior Court could have properly concluded, at the summary judgment stage, that an implied easement was created — which we do not hold — Lomax makes no representation in his affidavit that he ever told Brodhurst that an easement existed.
As noted above, the fact that OLG Drawing No. 4674 is — at best — ambiguous precluded entry of summary judgment in favor of Frazier. Yet, we cannot ignore that the Superior Court further misapplied the summary judgment standard when it weighed the evidence to disregard Brodhurst's affidavit. The Superior Court noted that "[Brodhurst] has merely stated in her affidavit that the map does not show an easement, and she did not believe there was an easement upon purchase. However, [Brodhurst] may not rely on [her] pleadings, mere allegations or denials, but must present evidence by affidavit or otherwise." (J.A. 13.) As additional grounds for disregarding the affidavit, the Superior Court stated that it "is incredulous of these statements because reason dictates that any reasonable person would notice and be put on actual notice of the clearly labeled words: '30'JointUse Driveway.' "(J.A. 12,)The Superior Court further concluded that because Brodhurst possessed prior experience with OLG maps, "there is no question then that [she] understands that easements can be shown on such maps." (Id.)
Had Brodhurst simply stated, without more, that no easement exists, the Superior Court would have been correct to disregard the affidavit. But Brodhurst did not make a legal conclusion in her affidavit — she stated, albeit succinctly, that she had purchased various properties on St. Croix over the past 20 years and she did not believe OLG Drawing No. 4674 depicted an easement because it was inconsistent with how easements have been depicted on all the prior OLG maps she has reviewed. See UTELCOM, Inc. v. Bridges, 77 So.3d 39, 53 (La. Ct. App. 2011) ("[T]he mere fact that [a corporate officer's] assertions in the affidavit track the incidents of taxation listed in [applicable state statutory provisions] does not render them impermissible legal conclusions, as the Department contends; rather, the statements are simply factual statements based on [the affiant's] personal knowledge and experience."). Moreover, Brodhurst did not state that a map can never show an easement, and never disputed that the text "30' Joint Use Driveway" appears on OLG Drawing No. 4674. Rather, Brodhurst, in her affidavit, attempted to convey that this particular map was different from the OLG maps she has dealt with in the past, in that it contained numerous lines that she could not interpret as an easement. Accordingly, we take this opportunity to remind the Superior Court that an affidavit from a non-moving party constitutes evidence that can be considered at the summary judgment stage, and should not be rejected or given less weight than other evidence simply because it was produced by a party to the litigation.
In his initial November 6,2007 motion for summary judgment, Frazier had also argued that he was entitled to an easement by necessity pursuant to section 2.15 of the RESTATEMENT. However, we decline to address this argument in the first instance, given that the Superior Court failed to consider it in its December 22, 2010 Order. See United Corp. v. Tutu Park Ltd., 55 V.I. 702, 720 n. 16 (V.I. 2011). We advise the parties that our failure to reach this issue — as well as our decision not to determine whether section 2.13 should be adopted by Virgin Islands courts in light of Banks or whether the requirements for an implied easement under section 2.13 have been satisfied — should not preclude them from litigating these issues on remand to the Superior Court.
The record does not inform what "OLG" designates. However, the Department of Planning and Natural Resources confirms that OLG stands for "Office of Lieutenant Governor." These drawings are required for registration with the Office of Lieutenant Governor's Cadastral section which issues these maps with a numeric designation.