MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This is a dispute between neighboring residential property owners regarding a drainage system that affects both of their lots. It is uncontested that the system originally was installed many decades ago and has been modified in certain respects since then. After flooding issues began to plague both lots, the defendant, estate of Patricia Powers (estate), had the system inspected. Believing that the flooding issues were being caused by clogs and other problems in the portion of the drainage system on the property of the plaintiff, Maureen Weeks, the estate requested that Weeks make necessary repairs or allow it to do so. After Weeks refused, years of litigation ensued.
On the estates motion for partial summary judgment, a Superior Court judge ruled that the estate had obtained a prescriptive easement with respect to the portion of the drainage system on Weekss property. The judge then allowed the estate access to the Weeks property to fix the problems there. Because of the nature of those problems, the estate -- with judicial approval -- made extensive modifications to the system, including relocating portions of it. In the end, the estate incurred approximately $50,000 for the modifications, and it sought contribution from Weeks for those costs. After trial, a jury found that the changes to the drainage system substantially benefited Weeks, specifically attributing sixty-five percent of the benefits to her. Accordingly, judgment entered on October 11, 2019, that awarded the estate $32,500 in reimbursement for Weekss share of the repair costs (sixty-five percent of $50,000).
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The jury also awarded the estate an additional $20,000 in damages based on its nuisance and negligence counterclaims, and the same judgment that addressed the cost sharing issue also required payment of those additional damages. In a separate judgment, entered on February 19, 2020,
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the judge declared that, by prescription, the estate had gained a drainage easement on Weekss lot.
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Weeks now appeals, arguing that: 1) the judge erred in awarding partial summary judgment on the prescriptive easement issue; 2) the award of $32,500 for cost sharing cannot stand for various reasons; and 3) there was no trial evidence to support the award of $20,000 in additional damages. As explained below, we order a limited remand of the third issue, but otherwise affirm.
1. Partial summary judgment. We examine whether a judge erred in allowing summary judgment based on our de novo review of the same summary judgment record that was before the judge. See Meyer v. Veolia Energy N. Am., 482 Mass. 208, 211 (2019). It appears that the summary judgment record here included the parties’ statement of undisputed material facts, and the various affidavits and exhibits on which that statement was based. However, none of that material was included in Weekss record appendix, thereby preventing us from serving our intended role. As a result, Weekss appeal of the summary judgment ruling fails for that reason alone. Roby v. Superintendent, Mass. Correctional Inst., 94 Mass. App. Ct. 410, 412 (2018) (appellants failure “to ensure that the record is adequate for appellate review” generally “is fatal to [her] appeal” [quotations omitted]).
Weeks argues that her failure to include the summary judgment record is not fatal, because she is not challenging the judges recitation of underlying facts, but instead is disputing only whether such facts warranted a ruling in the estates favor as a matter of law. We are unpersuaded. To be sure, parties can agree to limit the record presented to the appellate court, e.g., if they agree that the ruling under review accurately portrays the facts. See Covell v. Department of Social Serv., 439 Mass. 766, 782-783 (2002). However, where, as here, no such agreement was executed, the absence of the record is fatal. Id.
Were we to overlook this fatal problem, then Weekss argument would still fail on the merits. As the judge recited, it is undisputed that more than twenty years before the current litigation commenced, Weeks became aware that the estates lot (then owned by a predecessor) was being drained into a catch basin (CB-1) located near the border between the two properties. It also is undisputed that this catch basin is on Weekss side of the boundary. Thus, for the applicable twenty-year limitations period, Weeks can be charged with knowledge that the estates lot was being drained by a drainage system located on her own property; whether Weeks had actual knowledge that CB-1 was in fact on her own land is beside the point. See Lawrence v. Concord, 439 Mass. 416, 422 (2003) (constructive notice of adverse use is sufficient); Foot v. Bauman, 333 Mass. 214, 218 (1955) (proof of actual notice of adverse use not required to obtain prescriptive easement). Similarly beside the point is whether Weeks had actual knowledge of the precise layout of the underground portion of the drainage system.
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In sum, we discern no error in the judges ruling that the estate had obtained a drainage easement on Weekss lot.
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2. Cost sharing. Weeks does not challenge the jurys finding that she significantly benefited from the work that the estate undertook to repair and replace the drainage system. Nevertheless, Weeks argues that because the easement here was imposed by prescription, then, as a matter of law, she is entitled to pay nothing toward the repair of the system regardless of how much she benefits from the work that the estate performed. Assuming that Weeks preserved this issue for appeal, an issue on which there is some doubt,
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we discern no merit in it. As the judge noted, the general rule is that an owner of a servient estate who benefits from an easement on her property should contribute to its maintenance. See Restatement (Third) of Property (Servitudes) § 4.13(3) (2000). Weeks has provided no convincing reason why this rule should not apply where the easement was created by prescription.
3. Other damages. As noted, the estate sought damages beyond cost sharing, and the jury awarded $20,000 in such damages. Weeks argues that there was no trial evidence to support that award, and that the judge therefore erred in denying her motion for judgment notwithstanding the verdict (JNOV). In reviewing the denial of a JNOV motion, our task is to “evaluate whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the [party opposing the JNOV motion]” (citation and quotation omitted). OBrien v. Pearson, 449 Mass. 377, 383 (2007). The party claiming that the trial evidence was insufficient to support the jurys finding “has the burden on appeal of furnishing the court with all the evidence.” Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 641 (1998) (“party claiming an insufficiency of evidence ․ has the burden on appeal of furnishing the court with all the evidence”). Because Weeks did not provide us a copy of the trial record, that generally precludes her from challenging the sufficiency of the evidence. Id. However, as discussed below, there are idiosyncrasies present here that warrant a limited remand for the judge to explain the basis of her denial of Weekss JNOV motion.
At the close of evidence, Weeks filed a motion for a directed verdict arguing that the estate had failed to produce evidence that her actions had harmed the estate by interfering with the sale of the estates lot or by otherwise reducing that lots value. The judge allowed that motion, thereby -- in theory -- removing such potential damages from the jurys consideration.
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However, as the judge indicated in her ruling on the JNOV motion, she nevertheless allowed Weekss negligence and nuisance claims to go to the jury based on the possibility that the estate suffered a different type of damages.
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Because Weeks did not provide us a trial transcript and exhibits, we have no basis for assessing whether there was evidence in the trial record to support the award of $20,000 in damages.
However, as Weeks points out, the judge denied the JNOV motion even while “agree[ing] with Weeks that the Estate did not present evidence of damages beyond the cost of repairing the drainage system.” In the same paragraph, the judge stated that there nevertheless was sufficient evidence to justify the $20,000 award.
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It is not apparent on the record before us how those seemingly inconsistent statements can be harmonized. We agree with the estate that Weeks has waived any appellate argument that there was no evidence before the jury to support their award of $20,000 in additional damages. Nevertheless, we conclude that Weeks did not necessarily waive the argument that the judge still committed an error of law in denying the JNOV motion. In light of the seeming inconsistency in the judges reasoning, we remand this case for the judge to clarify that reasoning. Depending on how the judge resolves the inconsistency, she is free to reinstate the $20,000 damages award.
Disposition. With respect to the corrected judgment entered on October 11, 2019, we vacate the award of $20,000 in damages, and remand for the judge to reconsider -- consistent with this memorandum and order -- whether to allow Weekss JNOV motion as to such damages. The remainder of that judgment is affirmed. We affirm the judgment, entered on February 19, 2020, in its entirety.
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So ordered.
vacated in part and remanded; affirmed in part
FOOTNOTES
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. The judge initially entered judgment requiring Weeks to pay the full $50,000 of costs that the jury determined the estate incurred in repairing the system on Weekss lot. In the “corrected” judgment, entered on October 11, 2019, the judge attributed to Weeks a portion of the total costs based on the extent to which the repaired system benefited each property.
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. We note that the issuance of separate judgments violated the principle that, absent the proper invocation of Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974), there should be only one final judgment in a civil case. See Pantazis v. Mack Trucks, Inc., 92 Mass. App. Ct. 477, 478 n.4 (2017).
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. We acknowledge that the estates lot apparently has been sold and that the new owner of that lot has sent correspondence to the court expressing concerns about having the judgment setting forth the easement being filed on her deed and related issues. Putting aside that the purpose and function of the easement is to benefit the owner of the estates lot (by ensuring her ability to use that portion of the drainage system that lies on Weekss lot), the issues that the new owner of the estates lot seeks to raise are not properly before us.
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. It was established that water coming from the estates lot flowed into CB-1, from there into a clay pipe on Weekss lot, then into a second catch basin (CB-2) on Weekss lot, and finally into a public drainage system. Weeks claimed that -- during the relevant limitations period -- she was unaware of the layout of the system and how it worked. For purposes of this memorandum and order, we assume the truth of Weekss averments that she was unaware of the clay pipe and of how water flowed from CB-1 into CB-2 and finally into the public drainage system.
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. Weeks makes no challenge to the form of the separate judgment setting forth the terms and location of the easement, and she did not even include that judgment in her record appendix. In fact, she does not seek the removal of the easement, but instead requests compensation for it. Because we find no error in the recognition of the easement, we need not address the propriety of the dramatic shift in the relief that Weeks is seeking.
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. Weeks points to the fact that she filed a pretrial motion for partial summary judgment in which she argued that, where a drainage easement was established by prescription, the owner of the dominant estate cannot be required to contribute anything to the cost of repairs. However, an order denying such a motion is generally not subject to review after the case went to trial. See Harootian v. Douvadjian, 80 Mass. App. Ct. 565, 566 (2011).
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. We use the qualifier “in theory,” because, without knowing what jury instructions were given on damages, we do not know to what degree the jurys focus was narrowed to account for Weekss prevailing on her motion for directed verdict. In any event, Weeks makes no challenge to the jury instructions.
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. To be clear, because the trial record is not before us, we do not know what theory of damages the estate presented to the jury, e.g., in its closing argument. Moreover, we note again that we do not know what instructions the judge provided regarding damages.
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. Specifically, after quoting the JNOV standard, the judge stated: “Applying that standard, the court concludes that the jury could have awarded $20,000 to compensate the Estate for Weeks’[s] negligence in not maintaining the pipe under her property and preventing the Estate from repairing the system.”
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. We deny the estates request for its appellate attorneys fees.