Ballard v. SVF Foundation

          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.

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