JOHN M. KEOUGH, Trustee v. PANKAJ MERCHIA (And a Companion Case).

• Court: Massachusetts Appeals Court
• Decided: March 7, 2024
• Docket: 22-P-1065
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-1065 22-P-1066

JOHN M. KEOUGH, trustee1

vs.

PANKAJ MERCHIA2 (and a companion case3).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Shona Pendse and Pankaj Merchia (appellants) appeal from a

judgment of the Land Court, entered on the parties' cross

motions for summary judgment, which declared that (1) the

property located at and known as 619 Boylston Street ("619

Boylston") holds the benefit of an appurtenant easement for all

purposes of ingress and egress over a certain driveway leading

from Boylston Street to 619 Boylston and traversing portions of

the appellants' property; (2) the appellants have no right to

1 Of the Fisher Hill Realty Trust. 2 Shona S. Pendse was also named as a defendant, but the only claim against her was dismissed on December 24, 2021, and is not at issue on appeal. It is noted that Pendse was a plaintiff in the companion case addressed in this memorandum and order and did participate in that appeal. 3 Shona S. Pendse vs. Brookline Boylston LLC & another.

BoylstonD3 was also a plaintiff in the underlying action but did not participate in this appeal. use either the garage or the portion of the driveway located on

619 Boylston; (3) the property located at and known as 621 and

623 Boylston Street ("621-623 Boylston") holds the benefit of an

appurtenant easement for all purposes of ingress and egress over

the driveway leading from Boylston Street to 621-623 Boylston

and traversing portions of the appellants' property; and (4) the

appellants have no right to park on the paved cobblestone area

located on 621 Boylston Street.4 We discern in the appellants'

various arguments on appeal no cause to disturb the judgment,

and affirm for substantially the reasons set forth in the

thorough and detailed memorandum of decision entered by the

motion judge. We briefly address the appellants' various

arguments below.

1. Scope of easement benefitting 619 Boylston. As the

motion judge correctly determined, there is no merit to the

appellants' contention that the easement benefitting 619

Boylston is limited to the right to use the driveway to access,

and enter, the garage located on 619 Boylston, and specifically

excludes the right of the owners of 619 Boylston (and their

invitees) to access other portions of 619 Boylston after

reaching the garage, or to park on the portion of the driveway

situated on 619 Boylston. As a threshold matter, an easement of

4 The judgment also included other determinations not pertinent to any issue raised in this appeal.

2 broad grant ordinarily is construed to include all rights

incidental to its use and enjoyment. See, e.g., Mahon v. Tully,

245 Mass. 571, 577 (1923), and the other authorities cited by

the motion judge on page 29 of her memorandum of decision.

Moreover, the construction pressed by the appellants would

produce an absurd result, insofar as it would suggest that,

having reached the garage by driving across the driveway, the

driver and occupants of the vehicle would be unable to emerge

from the vehicle and access other portions of 619 Boylston. The

appellants' suggestion that the owners of 619 Boylston may not

park on the portion of the driveway located on 619 Boylston but

outside the garage is equally specious. The appellants hold no

rights in the portion of the driveway located on 619 Boylston,

by virtue of the release of rights contained in the amended deed

dated March 3, 2014, and recorded in the Norfolk County registry

of deeds in book 32231, page 473, and as owners of the fee on

which that portion of the driveway is situated, the owners of

619 Boylston are entitled to use the property for all purposes

attendant to their ownership.5

2. Rights benefitting 621-623 Boylston. As the motion

judge also correctly observed, 621-623 Boylston holds the

5 There is no plausible basis on which the appellants may contend that the parking of vehicles on 619 Boylston overburdens in some manner the use of the portion of the driveway traversing the property at 615-617 Boylston Street.

3 benefit of an easement over the driveway leading from Boylston

Street to that property by virtue of an express grant. The

failure to include a restatement of that grant in the 2005 deed

from Margaret Richardson to Edward Richardson III has no bearing

on the continuing vitality of the easement. See G. L. c. 183,

§ 15.6

3. Appellants' right to park on cobblestone area of 621

Boylston. Finally, with respect to the disputed easement

claims, the motion judge correctly concluded that the appellants

have no right to park on the cobblestone area situated on 621

Boylston and adjacent to the paved driveway. As the motion

judge observed, no deed or other instrument created any such

rights by express grant. There likewise is no basis in the

summary judgment record to support a claim of an implied

easement; it first appeared as a delineated improved area on a

2001 plan recorded with the Norfolk County registry of deeds in

plan book 497, as plan no. 376-2002. On that plan, it is

separated from the driveway by a solid line. Neither the plan

nor any other instrument includes any language suggesting that

the cobblestone area is intended to be included in any manner as

part of the driveway, or that rights to use it, or park on it,

6 621-623 Boylston also enjoys an easement by implication across 615-617 Boylston, as explained by the motion judge at pages 43- 45 of her memorandum of decision.

4 would be held by the owners of property other than the lot on

which it is situated.

4. Merchia's claims under the purchase and sale agreement

for 621-623 Boylston. Last, we affirm the judgment dismissing

the claims of appellant Pankaj Merchia for tortious interference

with his rights under a purchase and sale agreement for the

purchase of 621-623 Boylston. As explained by the motion judge,

621-623 Boylston enjoys the benefit of an easement for access

from Boylston Street over the driveway, and the basis on which

Merchia declined to proceed with his purchase of the property

under that contract was baseless. His failure to perform

constituted a breach of the contract, so that appellee John

Keough's subsequent purchase of the property did not interfere

with any rights held by Merchia.7

5. Attorney's fees. The appellee Keough, as trustee, has

requested an award of his appellate attorney's fees and double

costs, on the ground that the appellants' appeals are frivolous.

We agree that such an award is appropriate. Keough shall within

fifteen days following this order file with this court and serve

on the appellants a motion for determination of the amount of

7 There was likewise no error in the dismissal of Merchia's claims for trespass, if for no other reason than that Merchia was not an owner of the property on which the alleged trespass occurred.

5 his attorney's fees incurred on appeal, supported by an

affidavit detailing such fees, in accordance with the procedure

described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The

appellants may, within fifteen days thereafter, file with this

court and serve on Keough an opposition to the amount of fees so

claimed.

Judgments affirmed.

By the Court (Green, C.J., Walsh & Smyth, JJ.8),

Assistant Clerk

Entered: March 7, 2024.

8 The panelists are listed in order of seniority.