SAMUEL DEPINA v. DESIREE FORTINI-CRAFT

Samuel DePina and Desiree Fortini-Craft own abutting properties on Winthrop Street in Hyde Park. At issue in this case, after DePina's prescriptive easement claim was dismissed by agreement, is whether a record driveway easement over Fortini-Craft's property for the benefit of DePina's property has been extinguished by merger, reinstated, or abandoned. Upon Fortini-Craft's motion for summary judgment, the court finds that the easement was extinguished by merger when the properties came into common ownership, but was then reinstated when DePina's property was conveyed out. The court further finds that entering summary judgment that the easement has been abandoned would require the drawing of inferences of intent in favor of Fortini-Craft, the moving party, something that is impermissible in a motion for summary judgment. The motion for summary judgment will be denied; the issue of abandonment will have to be tried.

Procedural History

The Complaint (Compl.) was filed on August 7, 2017. The Answer of Desiree Fortini-Craft (Ans.) was filed on September 1, 2017. The Defendant's Motion for Summary Judgment, Defendant's Statement of Material Undisputed Facts in Support of Defendant's Motion for Summary Judgment (Def.'s SOF.), Memorandum of Law in Support of Defendant's Motion for Summary Judgment, Affidavit of Desiree Fortini-Craft, Affidavit of Roy Ercolano, Affidavit of Linda White, and Affidavit of David A. Marsocci were filed on October 1, 2018. The Plaintiff's Objection to Defendant's Motion for Summary Judgment was filed on November 15, 2018. The Defendant Desiree Fortini-Craft's Reply Brief was filed on November 30, 2018. The court heard the Defendant's Motion for Summary Judgment on December 5, 2018. At the hearing, the parties agreed that Count II of the Complaint, for prescriptive easement, was dismissed with prejudice. The court took the Defendant's Motion for Summary Judgment under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

Undisputed Facts

The following facts are undisputed or are deemed admitted:

1. DePina owns the property located at 19-21 Winthrop Street, Boston, Massachusetts (DePina property) by a deed dated May 20, 2016, and recorded in the Suffolk County Registry of Deeds (registry) at Book 56154, Page 98 on May 23, 2016 (DePina Deed). Compl. Exh. 1; Ans. ¶ 3; Def.'s SOF ¶ 1.

2. Fortini-Craft owns the property located at 25 Winthrop Street, Boston, Massachusetts (Fortini-Craft property) by a deed dated July 24, 2003, and recorded with the registry at Book 32174, Page 196 on July 25, 2003. Compl. Exh. 2; Ans. ¶ 5; Def.'s SOF ¶ 2.

DePina Chain of Title

3. On May 5, 1997, Mathias Leniw conveyed the DePina property to Stephen D. Wosny by deed recorded in the registry on May 5, 1997, at Book 21384, Page 173 (Leniw Deed). The deed conveyed "the land in that part of Boston known as Hyde Park with the buildings thereon and shown on a plan entitled "Plan of land belonging to Joseph Spadano, Hyde Park, Mass.' dated May 1928, Winebaum & Wexler, Engineers, recorded with Suffolk Deeds [(the 1928 Plan)]." The deed further recites that the property is bounded and described as follows:

SOUTHERLY on Winthrop Street, thirty four (34) feet;

WESTERLY on the right of way hereinafter referred to and shown on said plan, one hundred (100) feet;

NORTHERLY on land now or late of the New England Telephone & Telegraph Company, thirty four (34) feet; and

EASTERLY on land of the Methodist Episcopal Church, one hundred (100) feet.

Being shown on said plan as lot B. Together with the general right of way in and over a strip of land eight feet in width lying along the entire westerly boundary of the premises hereinbefore described and leading from said Winthrop Street to said land of New England Telephone & Telegraph Company, said right of way to be used in common between the owner and occupants of said parcel above described and the owners and occupants of the said premises shown on said plan as lot A [(the driveway easement)].

Compl. Exh. 15; Ans.¶ 22; Def.'s SOF ¶ 7.

a. On June 24, 1997, Stephen D. Wosny conveyed the DePina property to Michael Wosny, Jr. by deed recorded in the registry on June 24, 1997, at Book 21501, Page 203. The deed conveyed the DePina property by the same description recited in the Leniw Deed. Compl. Exh. 14; Ans. ¶ 21; Def.'s SOF ¶ 8.

b. On November 23, 1998, Michael Wosny, Jr. conveyed the DePina property to Stephen D. Wosny by deed recorded in the registry on December 9, 1998, at Book 23203, Page 71. The deed conveyed the DePina property by the same description recited in the Leniw Deed. Compl. Exh. 13; Ans. ¶ 20; Def.'s SOF ¶ 9.

c. On December 17, 1998, Stephen D. Wosny conveyed the DePina property to Michael Wosny, Jr., Trustee of Winthrop Street Boston Realty Trust, by deed recorded in the registry on December 22, 1998, at Book 23250, Page 146. The deed conveyed the DePina property by the same description recited in the Leniw Deed. Compl. Exh. 12; Ans. ¶ 19; Def.'s SOF ¶ 10.

d. On November 5, 2001, Michael Wosny, Jr., Trustee of Winthrop Street Boston Realty Trust conveyed the DePina property to Michael Wosny, Jr. and Mathew J. Wosny, as joint tenants, by deed recorded in the registry on November 6, 2001, at Book 27348, Page 235. The deed conveyed the DePina property by the same description recited in the Leniw Deed. Compl. Exh. 11; Ans. ¶ 18; Def.'s SOF ¶ 11.

e. On October 10, 2002, Michael Wosny, Jr. and Mathew J. Wosny conveyed the DePina property to Osarumwense Omoroghomwan and Abieyuwa Omoroghomwan (the Omoroghomwans) by deed recorded in the registry on October 11, 2002, at Book 29565, Page 261 (Omoroghomwan Deed). The deed conveyed the DePina property by the same description recited in the Leniw Deed. Compl. Exh. 10; And. ¶ 17; Def.'s SOF ¶ 12.

f. On May 20, 2016, the Omoroghomwans conveyed the DePina property to DePina by deed recorded in the registry on May 23, 2016, at book 56154, Page 98. The deed conveyed the DePina property by the same description recited in the Leniw Deed. Compl. Exh. 1; Ans. ¶ 3; Def.'s SOF ¶ 1.

Fortini-Craft Chain of Title

4. On June 12, 1984, Lena Sacramona conveyed the Fortini-Craft property to Robert N. Sacramona and Jacqueline R. Sacramona by deed recorded in the registry on June 13, 1984, at book 10969, Page 217 (Sacramona Deed). The deed conveyed "[t]he land with the buildings thereon, situated in that part said Boston known as Hyde Park, and shown as No. 25 Winthrop Street on [the 1928 Plan], duly recorded with Suffolk Deeds." The deed further recites that the property is bounded and described as follows:

Southerly on Winthrop Street, thirty six (36) feet;

Westerly on land of the City of Boston, as shown on said plan, one hundred (100) feet;

Northerly on land now or late of George F. Pollard, as shown on said plan, thirty six (36) feet; and

Easterly on Lot B as shown on said plan, one hundred (100) feet.

Containing 3600 square feet more or less, and comprising Lot A and a portion of Lot B on the aforesaid plan.

Subject to the right of others legally entitled thereto to use for the purpose of driveway, a strip of land eight feet in width lying along the Easterly boundary of the within granted premises and shown on said plan.

Compl. Exh. 9; Ans. ¶ 15; Def.'s SOF ¶ 13.

a. On December 15, 2000, Nicholas G. Sacramona, Administrator of the Estate of Jacqueline R. Sacramona, conveyed the Fortini-Craft property to Stephen D. Wosny and Michael Wosny by deed recorded in the registry on December 15, 2000, at Book 25674, Page 274. The deed conveyed the Fortini-Craft property by the same description recited in the Sacramona Deed. Compl. Exh. 8; Ans. ¶ 14; Def.'s SOF ¶ 14.

b. On January 28, 2002, Stephen D. Wosny and Michael Wosny conveyed the Fortini-Craft property to Michael Wosny and Mathew J. Wosny, as joint tenants, by deed recorded in the registry on March 13, 2002, at Book 28155, 339. The deed conveyed the Fortini-Craft property by the same description recited in the Sacramona Deed. Compl. Exh. 7; Ans. ¶ 13; Def.'s SOF ¶ 15.

c. On November 25, 2002, Michael Wosny and Mathew J. Wosny conveyed the Fortini-Craft property to Michael Wosny by deed recorded in the registry on January 10, 2003, at Book 30304, Page 148. The deed conveyed the Fortini-Craft property by the same description recited in the Sacramona Deed, with the exception that the easement language was modified from "a strip of land eight feet in width," to read "a strip of land eight (8) feet in width." Compl. Exh. 6; Ans. ¶ 12; Def.'s SOF ¶ 16.

d. On July 24, 2003, Michael Wosny conveyed the Fortini-Craft property to Fortini-Craft by deed recorded in the registry on July 25, 2003, at book 32174, Page 196. The Exhibit "A" to the deed described the Fortini-Craft property as follows:

The land with buildings thereon in that part of Boston known as Hyde Park and also shown as No. 25 Winthrop Street on [the 1928 Plan] recorded with the Suffolk County Registry of Deeds in Book 5017 Page 304.

Containing 3600 square feet more or less, and comprising Lot A and a portion of Lot B on the aforesaid plan.

Subject to the right of others legally entitled thereto to use for the purpose of driveway, a strip of land eight feet in width lying along the Easterly boundary of the within granted premises and shown on said plan.

Compl. Exh. 2; Ans. ¶ 5; Def.'s SOF ¶ 2.

5. From January 28, 2002 through October 10, 2002, the DePina and Fortini-Craft properties were held by Michael Wosny and Mathew Wosny. Compl. Exhs. 6-7, 10-11; Def.'s SOF ¶ 17.

6. The 1928 Plan, attached as Exhibit A, depicts Lot A as having an area of 3,200 square feet, with 32 feet of frontage on Winthrop Street, and bounded on its easterly side by an eight foot wide "Common Driveway," four feet of which is situated on the easterly portion of Lot A running 100 feet from the lot's southerly bound on Winthrop Street, in a northerly direction to the rear lot line of the property. Compl. Exh. 3; Ans. ¶ 7-9; Def.'s SOF ¶ 5-6.

7. The 1928 Plan depicts Lot B as having an area of 3,800 square feet, with 38 feet of frontage on Winthrop Street, and bounded on its westerly side by an eight foot wide "Common Driveway," four feet of which is situated on the westerly portion of Lot B running 100 feet from the lot's southerly bound on Winthrop Street, in a northerly direction to the rear lot line of the property. Compl. Exh. 3; Ans. ¶ 7-9; Def.'s SOF ¶ 5-6.

8. The DePina property has an area of 3,400 square feet, being 100 feet deep and having 34 feet of frontage on Winthrop Street. Def.'s SOF ¶ 18.

9. No portion of the driveway utilized solely by Fortini-Craft is located on any portion of the DePina property. Def.'s SOF ¶ 20.

10. The legal description of the DePina property in DePina's deed does not contain the word "driveway" nor does it make any reference to vehicular access. Def.'s SOF ¶ 21.

11. Roy Ercolano resided at 21 Winthrop Street, as a tenant of Michael Wosny and then of Osarumwense Omoroghomwan, from July 2001 to February 2015, and never observed any tenant or any owner affiliated with the DePina property use the driveway located between the DePina property and the Fortini-Craft property. From 2001 on, the only person he observed using the driveway was Steve Wosny or other owners of the Fortini-Craft property. Def.'s SOF ¶ 22.

12. Linda White has owned and resided at 22 Winthrop Street since April 19, 2002, and has never observed any owner or occupant of the DePina property parking any vehicle in the driveway or using it to access or park anywhere on the land of the DePina property. Linda White has only observed Fortini-Craft using the driveway between the DePina and Fortini-Craft properties. Def.'s SOF ¶ 23.

13. DePina has never observed any person who has owned or occupied the DePina property use the driveway easement to park a car or to access the rear of the DePina property. Def.'s SOF ¶ 24.

14. Prior to purchasing the DePina property, DePina was told by the listing broker that he would have to discuss the use of the driveway with Fortini-Craft. Def.'s SOF ¶ 25.

15. From 2002 to 2016, there was no disclosure of any easement of right of way in any applicable multiple listing service documents. Def.'s SOF ¶ 26.

16. DePina testified in his deposition that other than the language in his deed and the deed of Fortini-Craft, and what he claims to have been told by brokers, he has relied on no other information to support his claim to the driveway easement. Def.'s SOF ¶ 27.

17. DePina has never spoken with and is aware of no person who has observed anyone living at the DePina property use the driveway easement. Def.'s SOF ¶ 28.

Discussion

Fortini-Craft has moved for summary judgment seeking to dismiss DePina's claims on the grounds that the driveway easement was extinguished by merger when Michael and Mathew Wosny held title to both the DePina and Fortini-Craft properties in 2002. Alternatively, Fortini-Craft argues that if the driveway easement was recreated by the subsequent conveyances it has been abandoned.

"Under the common-law doctrine of merger, easements are extinguished 'by unity of title and possession of the two estates [the dominant and the servient], in one and the same person at the same time.'" Williams Bros. Inc. of Marshfield v. Peck, 81 Mass. App. Ct. 682 , 684 (2012), quoting Ritger v. Parker, 8 Cush. 145 , 146 (1851). "When the dominant and servient estates come into common ownership there is no practical need for the servitude's continued existence, as the owner already has 'the full and unlimited right and power to make any and every possible use of the land.'" Busalacchi v. McCabe, 71 Mass. App. Ct. 493 , 498 (2008), quoting Ritger, 8 Cush. at 147.

Merger applies only where (1) "the unity of title between the affected parcels [is] of a permanent and enduring estate, an estate in fee in both, because the merger of the easement…arises from that unlimited power of disposal," and (2) the "ownership interests are coextensive…mean[ing] that the type of ownership interest being united must be the same." Id. (internal quotations and citations omitted). The requisite "unity of title does not exist when two separate mortgages on two parcels are held by one person." Mt. Holyoke Realty Corp v. Holyoke Realty Corp., 284 Mass. 100 , 108 (1933).

The record indicates that before the DePina and Fortini-Craft properties were both held by Michael and Mathew Wosny, the DePina property was benefitted by an easement, defined as follows:

Together with the general right of way in and over a strip of land eight feet in width lying along the entire westerly boundary of the premises hereinbefore described and leading from said Winthrop Street to said land of New England Telephone & Telegraph Company, said right of way to be used in common between the owner and occupants of said parcel above described and the owners and occupants of the said premises shown on said plan as lot A.

Fortini-Craft argues that the unity of title of the DePina and Fortini-Craft properties in Michael and Mathew Wosny extinguished the driveway easement through merger. Michael and Matthew Wosny took title in fee, as joint tenants, to the DePina and Fortini-Craft properties, and this unity of title extinguished the driveway easement. DePina has not supplemented the record with any evidence which would suggest that Michael and Mathew Wosny did not hold sufficient interests in the DePina and Fortini-Craft properties such that merger would not occur.

The extinguishment of the driveway easement by merger has no effect on the parties' rights, if, as argued by DePina, the easement was recreated by the conveyance to the Omoroghomwans in 2002. "Once an easement is extinguished by merger, it cannot come into existence again merely by severing the dominant and servient estates. For the easement to arise again, it must be created anew by express grant, by reservation, or by implication." Cheever v. Graves, 32 Mass. App. Ct. 601 , 607 (1992). Here, the Omoroghomwan Deed, which severed the unity of title in the DePina and Fortini-Craft properties, expressly included the grant of the driveway easement, by the same language that appears in the preceding deeds in the DePina chain of title. Michael and Mathew Wosny had the power to reestablish the driveway easement burdening the Fortini-Craft property, which they still held at the time that they executed the Omoroghomwan Deed. Fortini-Craft argues that DePina has not alleged or offered evidence that there was an intention to reestablish the driveway easement in the Omoroghomwan Deed. This argument is belied by the plain and unambiguous language of the easement grant in the deed, which is the best evidence of the intent of the grantor. See Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998) ("The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.").

The driveway easement benefitting the DePina property was extinguished by merger when the DePina and Fortini-Craft properties were held by Michel and Mathew Wosny from January 2002 to October 2002. Subsequently, however, when Michael and Mathew Wosny conveyed the DePina property to the Omoroghomwans, the driveway easement was reestablished, by an express grant in the Omoroghomwan Deed.

Fortini-Craft further argues that even if the driveway easement existed in the grant to the Omoroghomwans, the undisputed facts show that it has since been abandoned and no longer benefits the DePina property. "Abandonment of an easement requires a showing of intent to abandon the easement by acts inconsistent with the continued existence of the easement." Cater v. Bednarek, 462 Mass. 523 , 528 n.15 (2012). "[M]ere nonuse is insufficient to demonstrate an intent by the dominant estate holder to abandon the easement." Patterson v. Paul, 448 Mass. 658 , 668 (2007), citing Desotell v. Szczygiel, 338 Mass. 153 , 159 (1958). The "failure to protest acts which are inconsistent with the existence of an easement, particularly where one has knowledge of the right to use the easement, permits an inference of abandonment." Carlson v. Fontanella, 74 Mass. App. Ct. 155 , 158 (2009). In support of her argument that the driveway easement has been abandoned Fortini-Craft has submitted affidavits of a neighbor and a former resident of the DePina property, and her own affidavit. The affidavits tend to suggest that no one other than Fortini-Craft has used the area of the driveway easement since Fortini-Craft acquired her property in 2002. Fortini-Craft further relies on evidence which shows that when the DePina property has been advertised in the multiple listing service the property description did not include the driveway easement. These facts have not been challenged by DePina and are undisputed. The only evidence presented that might support a finding of non-abandonment are DePina's statements about what he was told by the lawyer and listing broker.

Fortini-Craft is the moving party in this Motion for Summary Judgment and has provided evidence, unrefuted by DePina, on the issue of whether the driveway easement has been abandoned. For the court to hold that the easement was abandoned, it would have to find that the Omoroghomwans—the previous owners of the DePina property--acted with the intent to abandon the easement. To make such a finding on this record would require the court to infer from the lack of use of the easement and the failure to list it on MLS listings that that was the owners' intent. The court must, on a summary judgment motion, draw inferences in favor of the nonmoving party. Willitts, 411 Mass. at 203. Here, that means drawing an inference in DePina's favor, in light of what he said he was told, that the previous owners of the DePina property did not intend to abandon the easement. This is why a question of intent is rarely amenable to summary judgment, Town of Sudbury v. Scott, 439 Mass. 288 , 302 (2003), and the motion must be denied on the grounds that material facts are in dispute. The combination of the statements to DePina and the inference drawn in his favor may be a toehold, but a "toehold…is enough to survive a motion for summary judgment." Marr Equip. Corp. v. I.T.O. Corp. of New England, 14 Mass. App. Ct. 231 , 235 (1982).

Considering the evidence in the light most favorable to DePina, the non-moving party, a question of material fact remains with respect to whether the conduct, or lack thereof, by DePina and his predecessors in title, the Omoroghomwans, was sufficient to abandon the driveway easement granted in the Omoroghomwan Deed. Summary judgment on the existence of the driveway easement is inappropriate at this time.

Conclusion

For the foregoing reasons, the Defendant's Motion for Summary judgment is DENIED. A telephone status conference is set down for May 7, 2019, at 3:00 p.m.

SO ORDERED

Exhibit 1