MCCARTHY v. KNIGHT (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On appeal from a judgment of the Superior Court, the defendants claim error in the grant of partial summary judgment in favor of the plaintiffs as to a portion of their claim for title, by adverse possession, to certain property in Salem.⁴

“We review the allowance of a motion for summary judgment de novo to determine whether the moving party has established that, viewing the evidence in the light most favorable to the opposing party, ‘there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Scarlett v. Boston, 93 Mass. App. Ct. 593, 596-597 (2018), quoting Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). “If the moving party, in its pleadings and supporting documentation pursuant to [rule] 56 (c) ․, asserts the absence of any triable issue, the nonmoving party must respond and make specific allegations sufficient to establish a genuine issue of material fact.” Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800, 804 (2014).

“Title can be acquired by adverse possession only upon proof of ‘nonpermissive use which is actual, open, notorious, exclusive, and adverse for twenty years.’ ” Mancini v. Spagtacular, 95 Mass. App. Ct. 836, 841 (2019), quoting Lawrence v. Concord, 439 Mass. 416, 421 (2003). “The essence of nonpermissive use is the lack of consent from the true owner.” Totman v. Malloy, 431 Mass. 143, 145 (2000).

The undisputed facts in the record reveal the following. Pauline M. McCarthy has lived at 389 Lafayette Street since 1955. McCarthy constructed a fence across the disputed backyard property sometime in 1956, enclosing it with her backyard and separating it from the defendants' adjacent property. From 1956 until at least 1993 –- when Knight purchased 387 Lafayette Street –- McCarthy and the other plaintiff used and maintained the disputed backyard property as their own without interference from the owners of 387 Lafayette Street. Thus, the plaintiffs met the essential elements of an adverse possession claim on the disputed backyard property before Knight acquired any interest in 387 Lafayette Street.

Knight argues that partial summary judgment was precluded because McCarthy initially requested and obtained permission to construct a fence between the two backyards from the then owners of 387 Lafayette Street and because McCarthy installed the fence for privacy reasons instead of to establish a boundary.

To the extent McCarthy's deposition statements may be interpreted to suggest that she sought permission to construct the fence, consent to construct a fence, by itself, does not defeat an adverse possession claim. See Kendall v. Selvaggio, 413 Mass. 619, 623 (1992). “The central inquiry should be whether consent was given to use the ․ land.” Id. Knight did not produce any evidence that McCarthy obtained permission to construct a fence on her then neighbors' land, or sought permission to enclose, on her side of the fence, land owned by her then neighbors, or thereafter to use the land so enclosed as if it was her own.⁵

McCarthy's expressed subjective purpose in constructing the fence is also irrelevant. “[T]he adverse possession test is about the ‘degree of control exercised’ by the possessors” over the land. Mancini, 95 Mass. App. Ct. at 841-842, quoting Shaw v. Solari, 8 Mass. App. Ct. 151, 156 (1979). A fence is only one factor of many used to determine the degree of control in an adverse possession case. See id. at 157. The plaintiffs put forth evidence that they exercised sufficient control over the disputed backyard property by maintaining its plantings, cutting the grass, storing trash barrels on it, and otherwise caring for it as their own land without the interference of any owners of 387 Lafayette Street until at least 1993.⁶ Knight submitted no evidence based on personal knowledge sufficient to create a genuine issue of material fact on this issue.⁷

There likewise was no abuse of discretion in the denial of Knight's motion for reconsideration on the ground that it was untimely. The motion was not filed until April 2018, nearly six months after partial summary judgment was granted, shortly before the case was scheduled to proceed to trial, and offered no explanation for the delay. Furthermore, the motion and supplemental affidavits submitted with the motion for reconsideration attempted to advance “a new argument inappropriate for reconsideration.” Audubon Hill. S. Condominium Ass'n v. Community Ass'n Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 471 (2012).⁸

Judgment affirmed.

FOOTNOTES

4.   Following the order for partial summary judgment, and an unsuccessful motion for reconsideration of that order, the remainder of the plaintiffs' claims proceeded to trial. The parties raise no claim of error arising from the trial of the remaining claims.

5.   Knight also argues that the judge impermissibly weighed McCarthy's credibility due to conflicting statements in McCarthy's deposition. See Attorney Gen. v. Bailey, 386 Mass. 367, 370 (1982). However, the conflicting statements are irrelevant. McCarthy's statements that she only claimed the land that she owned did not create a genuine issue of material fact. Intent is not an essential element of an adverse possession claim. See Totman, 431 Mass. at 145 (“The guiding principle behind the elements of adverse possession is not to ascertain the intent or statement of mind of the adverse claimant, but rather to provide notice to the true owner, allowing for legal vindication of property rights”).

6.   We do not consider the affidavits submitted with the motion for reconsideration, because the judge ruled that the affidavits were untimely filed.

7.   Knight's argument that a laches defense precluded the grant of partial summary judgment also fails. By Knight's own admission, she did not approach McCarthy about the boundary dispute until 2012, and until that time McCarthy believed the disputed backyard property to be hers. Thus, even in the light most favorable to Knight, there is no evidence that McCarthy used any delay tactics to disadvantage Knight. See Moseley v. Briggs Realty Co., 320 Mass. 278, 283-284 (1946).

8.   In the exercise of our discretion, we decline the plaintiffs' request for an award of their appellate attorney's fees.