Carol C. Ballard et al.
v.
SVF Foundation. SVF Foundation
v.
Carol C. Ballard et al. Dorrance H. Hamilton et al.
v.
Carol C. Ballard et al.
Newport County Appeal. NC 13-499, NC 08-655, NC 00-340
Superior Court Walter R. Stone Associate Justice
For
Plaintiffs: R. Daniel Prentiss, Esq.
For
Defendants: Stephen J. MacGillivray, Esq. Michael Daly, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Indeglia, JJ.
OPINION
Maureen McKenna Goldberg Associate Justice.
Before
this Court is yet another chapter in the long-running spat
between Newport's renowned feuding neighbors, Carol C.
Ballard and A.L. Ballard (the Ballards) against SVF
Foundation (the Foundation) and its predecessor owner, the
Dorrance H. Hamilton Trust (the Trust), regarding the former
"Edgehill property" located in Newport, Rhode
Island. The parties have engaged in an embittered and
unseemly battle that has endured for more than seventeen
years. In the multiple cases that have been filed in the
Superior Court- presided over by a series of intrepid trial
justices-not a single count, claim, or counterclaim has
proceeded to trial.[1] Rather, a plethora of summary judgments
and Rule 54(b) judgments abound. The Ballards currently
appeal from summary judgments and an order of dismissal
entered by the Superior Court, on the eve of trial, in these
consolidated cases. The parties appeared before the Supreme
Court for oral argument on November 7, 2017. After carefully
reviewing the record and considering the parties' written
and oral submissions, we affirm the judgment in all respects.
Facts
and Travel
In
early 2001, in the context of pending litigation, the
Superior Court ordered a partition of the Edgehill property
and appointed a partition commissioner (the commissioner) to
assess the equities and recommend a fair division of the
property between the Ballards and the Foundation's
previous owner, the Trust.[2] On February 8, 2002, the commissioner
issued his report, including his findings and
recommendations; on September 27, 2002, the commissioner
issued a supplemental report and recommendation. The Superior
Court adopted the commissioner's findings and
recommendations, and a judgment of partition entered on
December 16, 2002. The Ballards and the Foundation were
awarded equal portions of the property-specifically, the
Foundation was awarded approximately 17.172 acres, comprising
a masonry complex known as the "Swiss Village, "
and the Ballards were awarded 11.478 acres, which included
two structures known as the "Manor House" and the
"Carriage House." Carol Ballard also owned a
separate parcel identified as "Lot 20, " an
undeveloped lot that abuts the Edgehill property on the
westerly side.[3] Lot 20 is featured in the current phase of
this battle. The partition order was not challenged by either
side, and it ripened into a final judgment. However, the
parties' incessant squabbles over access easements and
sewer debate have persisted for many years. This Court has
been confronted with a petition for relief from the partition
judgment arising from an access easement, the unending sewer
debate, as well as numerous amendments to the original
complaint, additional claims, counterclaims, and new
complaints.[4]
The
Sewer System and Lot 20 (NC-2000-0340)
Among
the post-partition disputes from which these appeals arise
was the Edgehill property sewer system (the sewer system).
Questions about joint responsibility for the sewer system and
whether the sewer system could be utilized to service
adjacent lots were raised during the partition proceeding.
The Ballards sought, and were denied, an easement to connect
Lot 20 to the sewer system; their request had been opposed by
the Foundation. This was not the Ballards' first attempt
to do so, nor was it their last. Indeed, it is fair to say
that much of this litigation has centered on the
Ballards' persistent efforts to expand the sewer system
for their personal benefit. On September 27, 2002, the
commissioner issued his supplemental report and
recommendation to address the post-partition sewer system
issues. The commissioner expressly determined that it was not
necessary to address whether the Ballards may access the
sewer system to service abutting properties such as Lot 20,
as that issue did not relate to the partitioned estate.
On
December 6, 2002, the Superior Court issued an order of
partition that adopted the original and supplemental findings
and recommendations of the commissioner. As explained in the
order, the sewer pump facility and its sewer lines serviced
the Swiss Village, the Manor House, and the Carriage House.
The trial justice awarded the Ballards and the
Foundation―in joint ownership―all the benefits
and rights to the sewer pump station, the forced main sewer
line, and the main sewer feed line on the Edgehill property,
and directed that any repair and maintenance responsibilities
be allocated on a pro rata basis. The order also awarded
individual ownership of any lateral sewer lines located on
the parties' respective properties. The Superior Court
declared that "[t]o the extent that other necessary but
unspecified utility or drainage lines, conditions or
facilities exist which predate the partition, such shall be
deemed pre-existing easements by necessity or implication
which inure to the benefit of the dominant tenant." The
Ballards are before the Court arguing that the sewer system
qualifies as an "unspecified utility or drainage
line." Although no appeal was taken by either party from
the partition judgment, the Ballards' efforts to connect
the sewer system to Lot 20 have persisted.
In a
2005 fifth amended complaint in the original action, the
Foundation sought injunctive relief to prevent the Ballards
from connecting Lot 20 to the Edgehill property's sewer
station.[5] The Ballards then filed an answer and
counterclaim, which included claims for trespass, declaratory
judgment, and an accounting.[6] A decade later, in 2015, with the
trial date looming, the Ballards moved to amend their
counterclaim to add a new count, seeking a declaration that
an implied easement to access the sewer system arose when
they bought Lot 20. The motion to amend was denied. No appeal
was taken.
The
Driveway Easement (NC-2013-0499)
An
easement that is described in the commissioner's report
and recommendation as "a driveway easement for access to
the Carriage House" (the driveway easement) is also
before us on appeal.[7] The driveway easement provided the
Ballards with access to a driveway over the Foundation's
property to the Carriage House. Due to zoning setback
requirements, this easement was a necessary part of the
partition judgment. Two stone pillars stood at the entrance
to the driveway: one on the Foundation's property and the
other on the Ballards' property, with an iron gate
between them. The stone pillars and the iron gate were in
poor condition and in need of repair. Given the parties'
toxic relationship, it was only a matter of time before this
circumstance led to acrimony and litigation.
The
Ballards, concerned about the appearance and the condition of
the pillars and the gate, sought to initiate the restoration
of these structures. A.L. Ballard approached the Trust, the
owner at the time, with an offer to relocate the pillars and
to move the driveway. Before this Court, the Ballards allege
that, after replacing the pillars and gate and relocating the
driveway, thus eliminating the need for access to the
Foundation's property, they nonetheless intended to
continue to use "their easement." They planned to
install a garden with landscaping and a grass or gravel path
for foot or vehicular traffic over "their
easement"; and not for its original purpose as "an
access easement over existing driveway to [the] Carriage
House." Indeed, at a July 9, 2015, pretrial conference,
the Ballards' counsel argued to the trial justice that
"the whole purpose of moving the driveway is so we can
landscape on our easement[.]" Counsel also argued that
the Ballards moved the driveway but that "[w]e
didn't move the easement."
According
to the Foundation, it agreed to the offer to relocate the
driveway and move the pillars onto the Ballards'
property; however, in return, the Foundation declared its
intent to erect a fence on its property, where the stone
pillar once stood. The Foundation also contends that, by
relocating the driveway, the Ballards abandoned the driveway
easement. Despite knowing the Foundation's intention once
the driveway was relocated, the Ballards claim that they
"proceeded with the project of relocating and rebuilding
the stone pillars and relocating the carriage house
driveway." Thereafter, the Foundation began installing
the fence, and another donnybrook erupted.
The
Ballards filed a new complaint in Superior Court on December
16, 2013, seeking to enjoin the Foundation from erecting the
fence and obstructing their use and enjoyment of "their
easement."[8] The Ballards argued that, notwithstanding
their request to move the pillars and relocate the driveway,
and the Foundation's conditional acceptance, they had no
intention of abandoning the driveway easement. The Foundation
responded that the proposal to relocate the driveway was
accepted based on the understanding that the Foundation would
install a fence at the entry of the driveway. The Foundation
also filed a counterclaim alleging several counts, including
a request for a declaration that the Ballards had abandoned
the driveway easement.
These
consolidated actions were set for trial on July 29, 2015.
Pretrial
Dispositions
On May
4 and June 1, 2015, the parties came before the trial justice
on the Foundation's motion for partial summary judgment
on Count I of the Foundation's fifth amended complaint,
seeking to enjoin the Ballards from accessing the jointly
owned Edgehill property sewer system to service a subdivision
of Lot 20. The trial justice noted at the later hearing date
that
"[t]his Court gave the parties a month to try to resolve
the matter by trying to reach a resolution that would pay for
the sewerage system. * * * There seems to be no material fact
that I can see. As a matter of law, [the sewer easement]
apparently cannot be extended to benefit other lots that were
not a part of the initial partition."
In
recognizing that another easement would have to be created in
order for the Ballards to connect to the sewer system, the
trial justice granted the motion for summary judgment in
favor of the Foundation, awarding injunctive and declaratory
relief to prevent the expansion of the sewer system. An
appeal of that order is before us in this matter.
On July
9, 2015, the trial justice conducted an on-the-record
pretrial conference in an attempt to narrow the issues in the
consolidated cases and clarify which claims would proceed to
trial on July 29, 2015. The trial justice patiently plowed
through the multiple claims in each complaint and
counterclaim.[9]
In open
court and on the record, the parties agreed to dismiss a
number of the claims in advance of trial. Included in the
claims addressed at the conference was the Ballards'
demand for an accounting as set forth in its counterclaim to
the Foundation's fifth amended complaint. Counsel for the
Ballards agreed to dismiss this claim. Soon thereafter,
counsel for the Ballards notified the Foundation that he
intended to pursue an accounting claim at trial. The record
before us reflects that the Ballards attempted to recast
their accounting claim as a demand for expenses related to
post-partition work on the sewer system, which was
unrelated to the original accounting claim. Accompanying this
eleventh-hour about-face was an e-mail, characterized as a
"document dump"―consisting of voluminous
written material―in support of the Ballards' claim
for reimbursement for post-partition sewer expenses.
The Foundation filed an emergency motion to enforce the
Ballards' previous dismissal of their accounting claim,
and, on July 27, 2015, two days before trial, the trial
justice held a hearing.[10] The Foundation argued that, based on
counsel's colloquy with the court on July 9, 2015 the
Ballards' accounting claim had been dismissed.
In
light of the shifting posture of his adversary, counsel for
the Foundation prudently arrived at the courthouse early on
the morning of July 27, 2015, and secured a transcript of the
pretrial conference concerning the accounting counterclaim.
The trial justice reviewed the transcript and confirmed the
dismissal of the newly formulated accounting claim, based on
counsel's representation to the court on the July 9, 2015
hearing. An order entered that granted the Foundation's
emergency motion to enforce a settlement agreement, and
dismissed the Ballards' accounting
counterclaim.[11] The Ballards have appealed the
dismissal.
There
was no trial on any claim. After the July 27, 2015 hearing,
counsel for the Ballards filed a motion for sanctions
pursuant to Rule 11 of the Superior Court Rules of Civil
Procedure, alleging that counsel for the Foundation had
falsely represented that a settlement agreement had been
reached on July 9, 2015. He also accused counsel and the
trial justice of engaging in ex parte
communications, a serious accusation that was based on the
fact that the trial justice was provided with the transcript
in advance of the emergency hearing.
On
August 31, 2015, the parties came before the trial justice
yet again, on the Foundation's motion for summary
judgment on the driveway easement. During this hearing, in
obvious frustration over the moving pieces in this case, the
trial justice likened this action to that of a shell game:
"THE COURT: * * * I mean if I watched this case, that
has been going on for 15 years, it is beginning to look like
a pea. There's one pea under the shell and everybody is
kind of moving it around. I wonder if there's a pea at
all?"
The
Court admonished counsel for the Ballards:
"THE COURT: This is what I was saying about the pea
under the shell."
The
trial justice ultimately granted the Foundation's motion
for summary judgment on the driveway easement claim, and
summarily denied the Ballards' motion for sanctions. A
final judgment was entered on October 19, 2015. The Ballards
filed a timely notice of appeal.
Standard
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