Phillips v. Brock

• 2017-12-27

Date Filed2017-12-27

Docket378-6-16 Wncv

Cited0 times

StatusPublished

Full Opinion (html_with_citations)

Phillips v. Brock, No. 378-6-16 Wncv (Teachout, J., Dec. 27, 2017).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 378-6-16 Wncv

DALE PHILLIPS
Plaintiff

RICHARD LINTON BROCK and
SARAH DAWSON BROCK
Defendants

Cross-Motions for Summary Judgment:
Defendants’ Claim based on Estoppel
Defendants’ Claim of Adverse Possession

The court has previously ruled that Plaintiff, the owner of Lot 1 in the Cutler Heights
Subdivision, is holder, as a matter of deed interpretation, of a deeded easement providing access
to Lot 1 that is located on adjacent Lots 2 and 5, which are currently owned by Defendants.
Defendants claim that Plaintiff is nonetheless estopped from claiming a continuing right to the
easement based on estoppel. Both parties have filed summary judgment motions on the claim.
Plaintiff challenges the admissibility of some of the facts Defendants rely on, and both parties
seek summary judgment on the issue. Oral argument was heard on December 19, 2017.

Admissibility of Evidence offered by Defendants as Basis for Undisputed Facts
Plaintiff challenges three sources of facts relied on by Defendants. This calls for rulings
on the admissibility of these items of evidence, as evidence must be admissible to support
determination of undisputed facts for purposes of summary judgment. V.R.C.P. 56(c)(2).

1. Memo entitled “Suggested Solutions to Right of Way Problem.” (Defs. Exhibit 11)

This is a memo dated April 3, 1989 of Cyrus Y. Ferris, Jr., who at the time was the owner
of Lot 2. (He was also a Trustee of the Ferris Family Trust, which owned Lot 1.)
Plaintiff does not dispute that the document was authored by Mr. Ferris, nor that it was
addressed to James and Gladys Brock, owners of Lot 5 at the time. Its authenticity is not
in dispute, and Plaintiff acknowledges that it qualifies as an exception to the hearsay rule
under VRE 803(16) as an ancient document. Plaintiff challenges its relevance on the
grounds that by its terms it does not purport to address any property interest related to Lot
1, the Ferris Family Trust “homestead” property, but only addresses interests related to
Lot 2. Defendants argue that it is relevant because an inference can be drawn from it that
if the Brocks were to purchase Lot 2, the “right of way problem” of any right of way on
Lot 2 would be extinguished and resolved. They argue that by offering to solve the “right
of way problem” on Lot 2 by selling it to the Brocks, Mr. Ferris made a promise, later
relied on by the Brocks, that they would acquire Lot 2 free and clear of any easement at

1
Phillips v. Brock, No. 378-6-16 Wncv (Teachout, J., Dec. 27, 2017).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]

all, and that he was in a position to make that promise because he was a Trustee of the
owner of Lot 1 as well. Defendants’ argument that an inference can be drawn from the
memo that could affect the easement that benefits Lot 1 is sufficient to make the
document relevant under V.R.E. 402, and it is accepted as admissible evidence. Its
significance is addressed in the legal analysis below.

2. Affidavit of Richard Linton Brock (Defs Exhibit 9)

At oral argument on December 19, 2017, Attorney Fitzgerald clarified that Defendants
were not relying on any hearsay statements included within this document (specifically,
things his father or others told him), but only on the statements of Richard Linton Brock
made on his own personal knowledge. With that clarification, the court finds the
following paragraphs of the Affidavit admissible and eligible for consideration in the
summary judgment analysis: ¶¶ 1–3, 7–9, 11–13, 15–20. All other paragraphs contain
inadmissible hearsay and are not used in the summary judgment analysis.

3. Affidavit of Nicholas H. Ward (dated and filed September 1, 2017 with Supplement)

Again, Attorney Fitzgerald clarified that only non-hearsay statements included within this
document are relied on in support of Defendants’ motion for summary judgment on
estoppel. With that clarification, the court finds the following paragraphs of the Affidavit
admissible and eligible for consideration in the summary judgment analysis: ¶¶ 1–3, 7,
8-first sentence only, 9, 12–13, 15–16. All other paragraphs, and the remainder of
paragraph 8, contain inadmissible hearsay and are not used in the summary judgment
analysis.

Defendants’ Claim for Summary Judgment based on Estoppel

Undisputed Facts
The facts set forth in the Decision of November 3, 2017 and Exhibits 1–7 attached to it
are all incorporated herein. In addition, the following facts are undisputed.

On July 29, 1977, Cyrus Y. Ferris, Jr. and Marguerite H. Ferris, owners of Lot 1,
conveyed all of their interests to Cyrus Y. Ferris, Jr., Marguerite H. Ferris, Tikyon Y. Ferris, and
Nicholas H. Ward, Trustees of The Ferris Family Trust.

In October of 1977, Heney conveyed Lot 2 to Bush, and in February of 1979, Heney
conveyed Lot 5 to Foss, subject to the easement described in the prior Decision and shown on
Exhibit 4 attached to the Decision.

On December 5, 1979, Bush conveyed Lot 2 to Cyrus Y. Ferris, Jr. individually. In June
of 1988, Foss conveyed Lot 5 to James and Gladys Brock “subject to the rights of others in said
right of way, all as set forth in the aforementioned deed.” The Brocks constructed a primary
residence on Lot 5, which was burdened by an access easement crossing it for the benefit of Lot
2 as well as the easement crossing it for the benefit of Lot 1. The easement across Lot 5 for the
benefit of Lot 1 was not being used at that time because a home had previously been constructed

2
Phillips v. Brock, No. 378-6-16 Wncv (Teachout, J., Dec. 27, 2017).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]

on Lot 1 with a driveway that joined the Town road, Cutler Heights Road, much further to the
north.

Within a year, one Bernard made an offer to Cyrus Y. Ferris, Jr. to purchase Lot 2. Any
use by a third-party owner of Lot 2 and its 60 foot wide access easement across Lot 5 would
have impacted the Brocks’ use of their residence on Lot 5.

On April 3, 1989, Cyrus Y. Ferris, Jr. sent the Brocks the “Suggested Solutions” memo
described above in which he set forth three options as “Suggested Solutions to Right of Way
Problem:” (1) Brocks “purchase all lands and right of way included in warranty deed from
Charles B. and Sharon G. Bush to Cyrus Y. Ferris, Jr. dated December 1979 at purchase price
offered by Bernard;” (2) Brocks pay Ferris for long term lease; and (3) Brocks pay Ferris for
long term lease and option to buy.

On January 2, 1990, the Brocks acquired Lot 2 “and a right of way across the easterly end
of Lot 5” from Ferris.

Analysis
Defendants claim that the “Suggested Solutions” memo was a promise to the Brocks that
if they purchased Lot 2, the problem of the existence of any third party right of way burdening
Lot 5 would go away, and that the Brocks relied on that promise in proceeding to purchase Lot 2
such that Plaintiff, as successor to Lot 1, is estopped from claiming any interest in any easement
burdening Lot 5 for the benefit of Lot 1.

Plaintiff argues that the Suggested Solutions memo is not signed and does not meet the
requirements of the Statute of Frauds for the conveyance of an interest in land. 12 V.S.A. §
181(5).

Plaintiff is correct that the Suggested Solutions memo does not comply with the Statute
of Frauds. Even if that were not necessary for purposes of equitable estoppel, there are other
reasons that the elements necessary for equitable estoppel are not met.

In April of 1989, at the time of the Suggested Solutions memo, there were two separate
legal easements that burdened Lot 5 owned by the Brocks, although they were both 60 feet wide
and both in the same location (see Exhibit 6 to prior Decision): one for the benefit of Lot 1 (as
described in the prior Decision), and one for the benefit of Lot 2 to provide access from the town
road (Cutler Heights Road) across Lot 5 to Lot 2.

The Suggested Solutions memo is specific that the only easement that Ferris would be
selling to the Brocks is the easement benefitting Lot 2. The scope of the purchase is specifically
defined in the first paragraph under “Most Obvious Solution:” “Brock to purchase all lands and
right of way included in warranty deed from Charles B. and Sharon G. Bush to Cyrus Y. Ferris,
Jr. dated December 1979 at purchase price offered by Bernard.” (Emphasis added.) The only
right of way included in that deed is the one that benefitted Lot 2. That deed did not and could
not have included the easement right that benefitted Lot 1.

3
Phillips v. Brock, No. 378-6-16 Wncv (Teachout, J., Dec. 27, 2017).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]

Moreover, Ferris authored the Suggested Solutions memo as a single individual who
owned Lot 2. At that time, the easement benefitting Lot 1 was held by four Trustees of The
Ferris Family Trust: Cyrus Y. Ferris, Jr., Marguerite H. Ferris, Tikyon Y. Ferris, and Nicholas H.
Ward. In the memo, Cyrus Y. Ferris, Jr. did not make any representations on behalf of the four
Trustees, nor did he purport to do so. Having chosen to hold title to the interests in Lot 1 in the
form of a trust administered by four trustees as implemented by the 1977 deed, Cyrus Y. Ferris,
Jr. was only one of four Trustees. There is no evidence that he had authority to act on behalf of
all of the trustees or that he was attempting to do so. The heading on his Suggested Solutions
memo shows only his own individual name.

Therefore, no promise was made by the proper owners of the easement benefitting Lot 1.
Without a promise by the Trustees, there could be no estoppel against the Trustees, or Plaintiff as
their successor. It is unnecessary to consider whether or not the purchase by the Brocks
constituted justifiable reliance, since the element of promise is not met. Plaintiff is entitled to
summary judgment on Defendant’s claim that Plaintiff is estopped from claiming an easement
across Lot 5 for the benefit of Lot 1.

Defendants’ Claim based on Adverse Possession

Defendants claim that they and their predecessors in title to Lot 5 have extinguished the
easement on Lot 5 for the benefit of Lot 1 by adverse possession. Having decided the estoppel
claim as set forth above, the court has considered the parties’ cross-motions for summary
judgment on the issue of adverse possession.

Defendants rely on evidence that James and Gladys Brock erected a fence for 150’ along
the common boundary between Lots 1 and 5, thereby creating a partial barrier between Lot 1 and
the easement that benefits it; that they mowed lawn and planted trees in the easement area; that
they continuously maintained the fence and lawn; that they posted the area against hunting or
trespassing and later required permission and restricted motor vehicle use; and that for a period
of time they put up a rope across the right of way. Plaintiff argues that these activities did not
actually interfere with or prevent use of the right of way, and that abandonment does not occur
through non-use.

While all the facts set forth above are not disputed, the court concludes that the facts are
not sufficient, without elaboration and cross-examination, to decide the ultimate issue of adverse
possession. These facts could support a decision either way, depending on further development
of the facts and an opportunity to view the property and make reasonable inferences from these
facts and additional testimony. Thus, both parties’ motions for summary judgment on this issue
are denied. An evidentiary hearing will be necessary on the Defendants’ claim for adverse
possession. The court would like to make a site visit to the property prior to hearing evidence.

4
Phillips v. Brock, No. 378-6-16 Wncv (Teachout, J., Dec. 27, 2017).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]

ORDER

Based on the foregoing,

1. Defendants’ Motion for Summary Judgment (MPR 1) is denied;

2. Plaintiff’s Motion for Summary Judgment (MPR 3) is granted in part as to Defendant’s
claims based on deed interpretation and estoppel; otherwise denied.

3. The attorneys are requested to confer about the amount of time needed for a site visit and
presentation of evidence at a court trial, and to notify the court by January 17, 2018 of the
amount of time needed as well as any upcoming scheduling problems.

Dated at Montpelier, Vermont this 26th day of December 2017.

_____________________________
Mary Miles Teachout
Superior Judge