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Butterfly Realty v. James Romanella & Sons, Inc.

Supreme Court of Rhode Island

July 1, 2014

Butterfly Realty et al.
James Romanella & Sons, Inc

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[Copyrighted Material Omitted]

Page 1024

Washington County. Superior Court. (WC 10-406). Associate Justice Jeffrey A. Lanphear.

For Plaintiffs: Mark E. Liberati, Esq.

For Defendant: Kelly M. Fracassa, Esq.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. Goldberg, J., with whom Suttell, C.J., joins, dissenting.


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Indeglia, Justice.

In this appeal, we revisit an ongoing dispute between two commercial landowners over the existence of a prescriptive easement used by delivery trucks to access a loading dock. The plaintiffs, Butterfly Realty and Dairyland, Inc. (plaintiffs), appeal from a Superior Court judgment denying their claim for a prescriptive easement on the property of the defendant, James Romanella & Sons, Inc. (JR & Sons or defendant). This case came before the Supreme Court on December 10, 2013, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the parties' arguments and reviewing their written submissions, we are satisfied that cause has not been shown. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.


Facts and Travel

The facts of this case were previously discussed in this Court's recent opinion, Butterfly Realty v. James Romanella & Sons, Inc., 45 A.3d 584 (R.I. 2012) (hereinafter, Butterfly I). In that decision, we vacated a judgment in favor of defendant and remanded the matter to the Superior Court. Upon remand, the parties waived the presentation of additional evidence. Accordingly, the facts provided in this opinion come from the one and only trial conducted in this case. We briefly recount below those facts relevant to the instant appeal.

The property at the center of this dispute consists of three commercial lots located in the Town of Westerly where East Avenue meets Granite Street and which are identified on assessor's plat No. 77 as lots Nos. 330, 331, and 332. JR & Sons owns the most southerly of the three parcels, lot No. 330, which has frontage on East Avenue. At all times relevant to this appeal, a commercial building containing a laundromat has occupied the northern portion of lot No. 330. Lot No. 331, which is owned by Dairyland, Inc., lies immediately to the north of lot No. 330 and has frontage on Granite Street. Lot No. 332 sits immediately to the north of lot No. 331 and also has frontage on Granite Street. On August 8, 1985, Albert Romanella, then-president of JR & Sons, conveyed lot No. 332 by warranty deed to Butterfly Realty (Butterfly). That same day, Albert Romanella also assigned his lease for lot No. 331 to Butterfly.

Butterfly owns a single commercial building that occupies most of lots Nos. 331 and 332.[1] The southwestern corner of the building houses a loading dock, the door to which faces southward towards JR & Sons's lot. Because the building sits nearly on top of the boundary line between lots Nos. 331 and 330, delivery trucks cannot access the loading dock without entering onto JR & Sons's property. Accordingly, on August 16, 1985, JR & Sons granted Butterfly an express easement, recorded in the Town of Westerly's land evidence records, which " permit[s] ingress and egress to and from the loading dock at the southwest corner of [Butterfly's] building[.]" The terms of the easement, however, expressly prohibit deliveries by " semi-trailers." The southern boundary of the easement runs roughly parallel to the side

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of Butterfly's building and becomes wider as it moves from east to west.

From 1985 onward, Butterfly's building housed a succession of businesses, all of which made some use of the loading dock. A liquor store operated out of the building from 1985 to 1989. After the liquor store vacated the premises, Butterfly leased a portion of the building to an auto parts store. From 1993 through 2010, another tenant of Butterfly's, Auto Audio, also operated a business out of a different portion of the building. The various businesses received deliveries from trucks of different sizes and with differing frequencies. In general, however, the delivery trucks would drive over JR & Sons's lot, beyond the bounds of the express easement, to access the loading dock.

In May 2010, JR & Sons hired an engineer to determine the precise location of the express easement's southern boundary after a delivery truck damaged a building on JR & Sons's lot. JR & Sons then ordered the installation of " concrete pylons" along the southwestern boundary of the express easement. With the pylons in place, it was nearly impossible for delivery vehicles to directly access the loading dock. On June 14, 2010, Butterfly [2] responded by filing a complaint in Washington County Superior Court, claiming a prescriptive easement over JR & Sons's lot.[3] The defendant filed a counterclaim for a permanent injunction to compel Butterfly to comply with the terms of the express easement.

A two-day bench trial on the parties' claims commenced on December 8, 2010. The testimony and exhibits presented at trial indicated that delivery trucks typically used one of two routes to access the loading dock. These two paths were referred to as the " brown route" and the " green route" at trial. See Appendix.[4] When following the brown route, a truck would enter lot No. 330 from a curb cut on East Avenue and then drive westward, in between the laundromat and the Butterfly building, before making a left turn behind the laundromat. The delivery truck would then back up to the loading dock. When using the green route, a delivery truck would enter lot No. 331 from a curb cut on Granite Street, then drive southwestward across several painted parking spaces,[5] and cross onto lot No. 330, where it would continue along the brown route to reach the loading dock. At trial, both parties presented several witnesses who testified about the delivery trucks' use of JR & Sons's lot. We summarize below the relevant testimony.[6]

Shawn Martin, a part-owner of Butterfly, testified on behalf of plaintiffs. He explained that his partner, an attorney, had negotiated the exact terms of the express easement in 1985 but stated that he " roughly" understood where the boundaries of the express easement were located. According to Mr. Martin, neither Albert

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Romanella nor Albert Romanella's partner, Charles Sposato, had ever voiced any objections about the delivery trucks' use of lot No. 330 to access the loading dock.

The plaintiff also presented Mr. Martin's wife, Rita Martin, who managed the liquor store from the time it opened in 1985 until the time it closed in 1989. During the many hours that she spent at the store, Mrs. Martin personally observed trucks make deliveries to the loading dock. She estimated that the liquor store received approximately twelve to fifteen deliveries per week. Mrs. Martin further estimated that the trucks' use of the brown and green routes was either roughly equal or that the brown route received slightly more use than the green route. She indicated that she had never received any written or oral communications from anyone affiliated with JR & Sons about the delivery trucks' use of lot No. 330 to access the loading dock. Mrs. Martin testified that she and her husband had a " friendly relationship" with Mr. Sposato.

Mrs. Martin explained that, for approximately one month each year, one or more tenants of JR & Sons would sell Christmas trees alongside the northern exterior wall of the laundromat. She testified that the actual dimensions of the area occupied by the trees would vary slightly from one year to another. Nonetheless, according to her recollection, the trees never impeded the trucks' abilities to make deliveries.

Paul Williams also testified on plaintiffs' behalf. Mr. Williams worked in the auto parts store from 1991, approximately two years after the store opened, until 2006.[7] He explained that the auto parts store usually received deliveries at the loading dock on a weekly basis. According to Mr. Williams, those deliveries arrived by semi-trailer trucks which were approximately fifty feet in length. He also testified that sometimes a garbage truck would pick up trash from the loading dock or a United Postal Service (UPS) truck would deliver a large item to the loading dock. Mr. Williams estimated that the delivery trucks' use of the brown and green routes was roughly equal, but he clarified that a truck driver's ability to use the green route depended on whether cars were parked in the parking spaces located southeast of Butterfly's building. See Appendix. Mr. Williams testified that the annual Christmas tree sales did not prevent the delivery trucks from entering through the curb cut on East Avenue and reaching the loading dock.

The plaintiffs' final witness was Craig Jackson, the owner of Auto Audio. Mr. Jackson testified that he personally supervised about half of Auto Audio's deliveries. According to Mr. Jackson, UPS trucks made deliveries to the loading dock about twice per day and used both the brown and green routes. Approximately once every two weeks, a garbage truck would use the loading dock to pick up both Auto Audio's and the auto parts store's trash. Consistent with Mr. Williams's testimony, Mr. Jackson testified that he observed semi-trailer trucks accessing the loading dock on a weekly basis to make deliveries to the auto parts store. He confirmed that the average size of the area occupied by the Christmas trees varied from year to year but maintained that the only time he could recall deliveries being impeded is

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when the concrete pylons were installed in 2010.

Charles Sposato, a 50 percent owner of JR & Sons, testified for defendant. In a deposition submitted into evidence at trial, Mr. Sposato stated that he was unaware of the exact location of the express easement until May 2010 when the survey was completed. Mr. Sposato further indicated in his deposition that he had previously believed that Albert Romanella had an oral, rather than a written, agreement with Butterfly that delivery trucks were allowed to cross over JR & Sons's property to reach the loading dock. Accordingly, he testified at trial that he was surprised in May 2010 when he saw for the first time the deed granting Butterfly an express easement. He insisted that, since 1985, he had consistently believed that Butterfly should pay for its use of JR & Sons's lot. Approximately twenty-five years ago, he expressed this belief to Albert Romanella. After Albert Romanella passed away in 2004, Mr. Sposato considered requesting that Butterfly pay rent but ultimately did not approach anyone from Butterfly at that time. He did not demand rent from anyone at Butterfly until approximately six months before trial when he telephoned Paul Martin, Shawn Martin's brother. According to Mr. Sposato's recounting of the telephone conversation, he requested that Butterfly pay $900 per month for its tenants' use of lot No. 330.

According to Mr. Sposato, delivery trucks had more than once caused damage to JR & Sons's property. On those occasions, Mr. Sposato spoke directly with the drivers of the trucks, but he did not tell anyone from Butterfly, Dairyland, or the auto parts store that the delivery trucks could no longer use JR & Sons's lot. When asked at trial why he never forbade the delivery trucks from entering upon JR & Sons's property, Mr. Sposato explained, " I just wanted to be a good neighbor I guess. I just never did."

Mr. Sposato also testified about his personal observations of the delivery trucks' use of JR & Sons's lot. He indicated that, since 1995, he has visited JR & Sons's property on a daily basis, except for several weeks each year that he spends in Florida. During his time at the property, Mr. Sposato personally observed semi-trailer trucks making deliveries to the loading dock. According to Mr. Sposato, the trucks mostly used the brown route. He clarified, however, that there are " many different trucks that come [into] this property. They are not all trailer trucks. They don't all use that brown [route] at all. * * * They come in our property * * * all ways that I have noticed." Mr. Sposato recalled a dozen or more instances when he had moved his car to accommodate the delivery trucks. He explained that the truck drivers did not ask him to move his car, but he would voluntarily do so if he noticed that the trucks were holding up traffic. Mr. Sposato confirmed that the Christmas tree sales took place on the northern side of the laundromat almost every year from 1985 to 2006 and lasted from approximately Thanksgiving through December 23 or 24.

James Romanella also testified for defendant. James [8] served as vice president of JR & Sons until 2004, when he became president. He recalled a telephone conversation that he had with the manager of the auto parts store about the Christmas trees. According to James's recounting of the conversation, the manager was concerned

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that the size of the area occupied by the trees was making it difficult for the delivery trucks to reach the loading dock. In response, James suggested that the delivery drivers use smaller trucks. He also informed the manager that the tree sales " would continue as long as [his] tenant wanted to do it." James had no recollection of when this conversation occurred other than that it had taken place sometime between 1985 and 2005.

The trial justice denied plaintiffs' claim for a prescriptive easement in a written decision filed on March 18, 2011. The plaintiffs appealed to this Court. In an opinion issued on June 27, 2012, we concluded that the trial justice had committed an error of law because he " inappropriately required Butterfly's tenants' use of the disputed land to be inconsistent with JR & Sons's use * * *." Butterfly I, 45 A.3d at 589. Accordingly, we vacated the trial justice's decision and remanded the matter for further proceedings. Id. at 592. We additionally instructed that on remand the trial justice should address certain inconsistent findings he had made with regard to the Christmas trees' impact on Butterfly's continuous use of the prescriptive easement. Id. at 591. Finally, we directed the trial justice to determine whether the various tenants' use of lot No. 330 could be imputed to Butterfly for the purposes of establishing a prescriptive easement. Id. at 591-92.

Upon remand and after the parties waived the presentation of additional evidence, the trial justice issued a second written decision on November 9, 2012 in which he again denied plaintiffs' claim for a prescriptive easement. In his second decision, the trial justice found that the delivery trucks' use of lot No. 330 was actual, open, and notorious. He concluded, however, that such use was not sufficiently hostile to establish an easement by prescription. According to the trial justice, JR & Sons had given permission for the delivery trucks to traverse its lot in order to access the Butterfly building's loading dock. He also concluded that the Christmas tree sales had interrupted the continuous use of the disputed area. The trial justice did not address whether the various tenants' use of lot No. 330 could be imputed to Butterfly.

Judgment entered on November 20, 2012. The plaintiffs timely appealed to this Court. Additional facts will be provided, as needed, to resolve the issues raised on appeal.


Standard of Review

We afford " much deference to the factual findings of a trial justice sitting without a jury in a civil case." DiPippo v. Sperling, 63 A.3d 503, 507 (R.I. 2013) (quoting McGarry v. Coletti, 33 A.3d 140, 144 (R.I. 2011)). We will not disturb the trial justice's factual findings " unless such findings are clearly erroneous or unless the trial justice misconceived or overlooked material evidence or unless the decision fails to do substantial justice between the parties." Greensleeves, Inc. v. Smiley, 68 A.3d 425, 433-34 (R.I. 2013) (quoting Grady v. Narragansett Electric Co., 962 A.2d 34, 41 (R.I. 2009)). " If the trial justice's decision 'reasonably indicates that [he or she] exercised [his or her] independent judgment in passing on the weight of the testimony and the credibility of the witnesses it will not be disturbed on appeal unless it is clearly wrong or otherwise incorrect as a matter of law.'" Cahill v. Morrow, 11 A.3d 82, 86 (R.I. 2011) (quoting Now Courier, LLC v. Better Carrier Corp., 965 A.2d 429, 434 (R.I. 2009)). Furthermore, the trial justice may " draw inferences from the testimony of witnesses, and such inferences, if reasonable, are entitled on review to the

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same weight as other factual determinations." Id. (quoting DeSimone Electric, Inc. v. CMG, Inc., 901 A.2d 613, 621 (R.I. 2006)). In contrast, " we review de novo the trial justice's conclusions of law." Greensleeves, 68 A.3d at 434 (citing State v. Gianquitti, 22 A.3d 1161, 1165 (R.I. 2011)).



A few years ago, this Court observed that the " ancient roots and arcane rationale" of prescriptive land rights have become increasingly difficult to " square[] with modern ideals in a sophisticated, congested, peaceful society." Cahill, 11 A.3d at 88, 87 (quoting Finley v. Yuba County Water District, 99 Cal.App.3d 691, 160 Cal.Rptr. 423, 427 (Cal. Ct. App. 1979)). Although claims for adverse possession and prescriptive servitudes have continuing vitality in this jurisdiction, our jurisprudence on prescriptive rights in recent years has charted a consistent path by showing solicitude for the rights of record owners, and, correspondingly, guarding against the potential for uncompensated loss by holding claimants to a high burden of proof. See Drescher v. Johannessen, 45 A.3d 1218, 1227 (R.I. 2012); Cahill, 11 A.3d at 88; see also Pelletier v. Laureanno, 46 A.3d 28, 35-36 (R.I. 2012) (rejecting claim for easement appurtenant). A claimant of an easement by prescription " must show actual, open, notorious, hostile, and continuous use under a claim of right for at least ten years." Drescher, 45 A.3d at 1227 (quoting Hilley v. Lawrence, 972 A.2d 643, 651-52 (R.I. 2009)). A plaintiff claiming an easement is held to a higher standard of proof than a plaintiff in an ordinary civil case. Pelletier, 46 A.3d at 35. He or she bears the heavy burden of proving " each element by a preponderance of clear and convincing evidence." Carpenter v. Hanslin, 900 A.2d 1136, 1146 (R.I. 2006); see also Hilley, 972 A.2d at 652 (each element for a prescriptive easement must be proven by " clear and satisfactory evidence" ).

Any analysis of a claim for a prescriptive right must take for its point of origin the principle that such rights " are not favored in the law, * * * since they necessarily work corresponding losses or forfeitures on the rights of other persons[.]" Drescher, 45 A.3d at 1227 (quoting 25 Am.Jur.2d Easements and Licenses § 39 at 536 (2004)); Butterfly I, 45 A.3d at 592 n.8 (stating same). " The burdens of prescription * * * fall onto the shoulders of the subservient estate." William G. Ackerman & Shane T. Johnson, Outlaws of the Past: A Western Perspective on Prescription and Adverse Possession, 31 Land & Water L. Rev. 79, 92 (1996). Those burdens include the " infringement of a landowner's rights, a decrease in value of the servient estate, * * * the generation of animosity between neighbors, a source of damages to land * * * and the creation of uncertainty for the landowner." Cahill, 11 A.3d at 87-88 (quoting Ackerman, 31 Land & Water L. Rev. at 92).

These foundational principles are equally applicable when the holder of an express easement seeks to expand that easement by prescription. An attempt by the holder of an express easement to unilaterally " expand the physical size, purpose or use of the easement beyond the terms as contained in the original grant * * * unduly interferes with the reserved rights of the owner of the servient tenement." 28A C.J.S. Easements § 231 at 449 (2008). In cases such as this one where the easement holder seeks to change not only the frequency or type of use, but also the dimensions of an express easement, the enlargement " 'does more than merely increase the burden upon the

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servient estate; it has the effect of enveloping additional land,'" --land which the owner has purposely reserved for him or herself. Northwest Pipeline Corp. v. Luna, 149 Idaho 772, 241 P.3d 945, 948 (Idaho 2010). Here, Butterfly seeks to expand a limited express easement into an amorphous prescriptive easement that will envelop nearly the entirety of JR & Sons's lot.[9]

An enlargement of an express easement by prescription must satisfy all the traditional requirements for acquiring a prescriptive right. See Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land, § 8:16 (2014).[10] In the instant case, the trial justice found that Butterfly had failed to prove by clear and convincing evidence that its use was hostile to the record owner or that it was continuous for the statutory period. Butterfly challenges both of these findings on appeal. Before turning our attention, however, to the merits of the trial justice's analysis of the element of hostility, we briefly address plaintiff's threshold contention that the trial justice was prohibited upon remand from performing any analysis of the element of hostility.


Scope of Remand

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