2014 VT 44


Brault v. Welch (2013-189)
 
2014 VT 44
 
[Filed 16-May-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2014 VT 44

 

No. 2013-189

 

James A. Brault and Elise D.
  Brault


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Civil Division


 


 


Jeanne E. Welch


March Term, 2014


 


 


 


 


Geoffrey
  W. Crawford, J.


 

L. Randolph Amis of L. Randolph Amis, P.C., Burlington, for
Plaintiffs-Appellants.
 
Liam L. Murphy and Damien J. Leonard of Murphy Sullivan
Kronk, Burlington, for 
  Defendant-Appellee.
 
 
PRESENT:    Reiber, C.J., Skoglund and Robinson, JJ., and Tomasi and Morris (Ret.), Supr. JJ.,
                    
Specially Assigned
 
 
¶ 1.            
SKOGLUND, J.   Plaintiffs James and Elise Brault appeal
from the trial court’s order granting judgment to defendant Jeanne Welch in
this dispute over a right-of-way.  The Braults argue that the court should
have found an ambiguity in the description of the right-of-way, and that it
should have granted their motion to alter or amend.  We affirm.
¶ 2.            
The court made the following findings after a site visit and a bench
trial.  The parties own homes on Broadlake Road in Colchester,
Vermont.  Richard and Diane Griffiths owned both properties prior to
1978.  In 1978, the Griffiths conveyed to their son and daughter-in-law
the property now owned by the Braults.  The deed to their children
included a right-of-way to Lake Champlain, described as follows: “Included in
this conveyance is a right of way five feet wide leading to the lake along the existing
block wall and southerly thereof.”  The Braults purchased the property in
1996 from the bank after the property went into foreclosure.  Their deed
included the right-of-way but the description did not include the phrase
“southerly thereof.”  
¶ 3.            
In 1981, Welch and her former husband purchased their lot from the
senior Griffiths.  The deed to the Welches did not refer to the
right-of-way.  Welch became aware of the deeded right-of-way some time
after purchasing the property.  In the thirty-one years that she had lived
on the property, neither the younger Griffiths nor the Braults ever entered her
property to reach the lake along the southerly boundary.  Upon occasion,
however, Welch did allow them to access the lake across other portions of her
property.  The court explained that, due to the existence of a seawall
consisting of large, irregular blocks of stone, normal access to the water by
walking would require a set of stairs at both the east and west sides of the
seawall and some type of short walkway across its top.  
¶ 4.            
The court found that Welch’s property consists of a small lot on Lake
Champlain with a one-story house.  The lot is bordered by Broadlake Road
on the east and Lake Champlain on the west.  To the south is a cement
block wall that separated the property from a neighboring lot owned by the
Fitzgeralds.  The cement block wall has been in place for many years and
is the same wall referenced in the 1978 deed.  Because neither party had
commissioned a survey, it was unknown whether this wall marked the exact
southern boundary of the Welch lot.  Welch had gardened and planted shrubs
and low trees on her side of the wall.  The court found that if the
five-foot right-of-way described in the Braults’ deed was located on the north
side of the block wall (Welch’s side), it would be a very significant change to
the dimensions of her lot and to its privacy.  
¶ 5.            
In 2010, the Braults listed their home for sale.  The listing
included reference to lake access.  A discussion ensued between Welch and
the Braults concerning whether there existed a right-of-way and where it might
be located.  In 2012, the Braults filed a declaratory judgment action,
asking the court to find that they have “the right to access to the lake as
described [in their deed] for purposes of pedestrian travel to and from the
lake, the necessary improvements, maintenance and construction of seasonal
structures on or over [Welch’s] property over the top of the bank to the waters
of Lake Champlain for actual access to the lake as may be permitted by any
regulatory entity with jurisdiction over the matter.”  
¶ 6.            
As previously stated, the deed in question purported to convey “a right
of way five feet wide leading to the lake along the existing block wall and
southerly thereof.”  The court found this language unambiguous.  Its
plain meaning was that the right-of-way was located on the south side of the
block wall.  The court explained that the words “southerly thereof”
modified the term right-of-way, and it found this interpretation strongly
reinforced by the word “thereof,” which meant “of that” or “concerning
that.”  In arguing that the right-of-way had to be located on the northern
side of the block wall, the Braults asserted that the words “southerly thereof”
modified the words “the existing block wall,” that is, the block wall was
“southerly” of the right of way.  The court found this to be an
unreasonable interpretation of the deed language, and one that was inconsistent
with how the English language was spoken and read.  Read as a whole, in a
normal manner, the court found that the phrase “southerly thereof” gave up its
meaning without much of a struggle.  
¶ 7.            
The Braults maintained that language in the original deed from the Griffiths
to their son and daughter-in-law—“southerly thereof”—must mean that the
right-of-way was actually northerly of the block wall, primarily because a
location northerly of the wall avoided any encroachment over the property line
with the neighboring lot.  
¶ 8.            
The difficulty with the Braults’ argument, the court explained, was that
it violated the parol evidence rule, citing to Thomas v. Farrell, 153
Vt. 12, 16, 568 A.2d 409, 411 (1989).  Courts must start with deed
language and look to circumstantial evidence about intent only when there is
ambiguity.  The court found that the question of the circumstances that
might have produced the disputed provision in the deed also suffered from a
shortage of evidence.  Because the exact dimensions of the Welch lot were
not established, the court found that it was not known whether the block wall
marked the exact boundary on the south side of the lot.  Nor could the
court discern what circumstances led to the use of the word “southerly thereof”
due to “a shortage of evidence.”  The court concluded that the Braults
failed to meet their burden of proof, and it entered judgment in Welch’s
favor.  
¶ 9.            
Following this ruling, the Braults asked for an extension of time in
which to file a motion to alter or amend, which the court granted.  During
this period, the Braults had a survey prepared which they included with their
motion, asking the court to reopen the evidence.  The court found that the
survey was neither “newly discovered” nor “previously unavailable” evidence as
required by Vermont Rule of Civil Procedure 59.  For this and other
reasons, the court denied the motion with respect to the survey.  The
court noted that the survey would not change the outcome of the case in any event. 
It came as no surprise, the court observed, that the block wall marked the
boundary line.  At most, the survey demonstrated what everyone involved in
the case anticipated—that there was no strip of land south of the block wall
that belonged to the Griffiths at the time of the deed to their children. 
The court found that any alternative theory of deed reformation was never pled
and was not part of this case.  The court also rejected the Braults’ new
interpretation of the term “southerly thereof,” which, the Braults argued,
referred to the direction of the easement, not its location.  This appeal
followed.
¶ 10.         The
Braults argue on appeal that the court erred in granting judgment to
Welch.  They maintain that the court should have found the description of
the right-of-way to be ambiguous because it was a simple scrivener’s error that
misstated which side of the wall the easement is on.  According to the
Braults, because they established the concrete wall as the property’s boundary
line, it follows that the easement description was a mere drafting error and
that the easement was located on the north and west side of the concrete
wall.  They complain that the court’s interpretation does not give meaning
to all of the language in the deed.  
¶ 11.         We find
no error in the court’s decision.  See Main St. Landing, LLC v. Lake
St. Ass’n, 2006 VT 13, ¶ 7, 179 Vt. 583, 892 A.2d 931 (mem.) (Supreme Court
reviews question of whether ambiguity exists de novo).  As we have
explained, 
  Our master rule in construing a
deed is that the intent of the parties governs.  In ascertaining intent,
we must consider the deed as a whole and give effect to every part contained
therein to arrive at a consistent, harmonious meaning, if possible.  A
deed term is ambiguous if reasonable people could differ as to its
interpretation.  If a writing is unambiguous
under this standard, we must enforce the terms as written without resort to
rules of construction or extrinsic evidence.
DeGraff v. Burnett, 2007 VT
95, ¶ 20, 182 Vt. 314, 939 A.2d 472 (citations omitted).
¶ 12.         However,
the determination of ambiguity may also involve preliminary analysis of the
circumstances in which the terms are set.  “We allow limited extrinsic
evidence of ‘circumstances surrounding the making of
the agreement’ in determining whether the writing is ambiguous.”  Kipp v. Estate of Chips, 169 Vt. 102, 107, 732 A.2d 127, 131
(1999).  Other than the obvious agreed upon fact that the original
grantors gave an easement to the original owners of the now Brault lot, no
evidence was presented concerning the circumstances surrounding that
grant.  Did the Griffiths think they owned five feet south of the
wall?  Did they intend the easement to be north of the wall,
notwithstanding the language of the deed?  The decision of this case is
driven by a failure of evidence of key elements on which the Braults
rely.  
¶ 13.         First,
the language of the deed is not ambiguous.  As the trial court explained,
the right of way had four important qualities that were described in sequence:
it was five feet wide, leading to the lake, along the existing block wall, and
southerly of the wall.  The court’s interpretation is consistent with the
normal use of the English language.  The interpretation proposed by the
Braults is not.  Ultimately, the Braults would read the word “southerly”
to mean “northerly.”  This does not comport with the deed’s plain
language.  The fact that the grantor may not have owned the land southerly
of the block wall does not render the language at issue ambiguous.  In
interpreting deeds, the court must start with the language of the deed itself,
and ambiguity does not result simply because the plain language leads to an
unfavorable or implausible outcome.  Because this language is unambiguous,
it must be enforced as written.  
¶ 14.         Even
if the circumstances surrounding the grant of the easement created some initial
ambiguity as to the language employed, the “construction” offered by the
Braults requires the Court to rewrite, rather than merely construe, the words
of the deed.  Specifically, it demands that the Court insert the word
“northerly” in place of the word “southerly.”  A result so at odds with
the actual language of a deed is rightly accomplished through the remedy of
reformation.  See Cassani v. Hale, 2010 VT 8, ¶¶ 17-19, 187 Vt.
336, 993 A.2d 422 (finding reformation appropriate to determine location of
easement in face of ambiguous wording of deed); LaRock v. Hill, 131 Vt.
528, 530-31, 310 A.2d 124, 126 (1973) (stating that deed reformation is
appropriate where, through mistake, language did “not represent the actual
conveyance intended by the parties”); Wead v. St. Johnsbury & L.C.R. Co.,
64 Vt. 52, 52-53, 24 A. 361, 362 (1892) (finding that “[p]arole evidence was
admissible, not to vary the deed, but to explain it”); Pitts v. Brown,
49 Vt. 86, 88-89 (1876) (holding that “parol evidence was not admissible to
show that by mistake one tract was inserted in a deed instead of
another”).  
¶ 15.         As to
any suggestion that the trial court should have reformed the deed in this case,
the trial court expressly found that this theory was never pled and that it was
not part of this case.  Issues not raised in pleadings are waived. 
See In re Woodstock Cmty. Hous. Trust, 2012 VT
87, ¶ 21, 192 Vt. 474, 60 A.3d 686.  The trial
court added, moreover, that to sustain such a claim, the Braults would have had
to prove, beyond a reasonable doubt, that there was a valid agreement, prior to
the execution of the deed, representing a standard to which the erroneous
writing could be reformed so as to express the true transaction between the
original parties to the deed.  See Kilcullen v. Dery, 133 Vt. 140,
142, 334 A.2d 410, 411-12 (1975).  
¶ 16.         In
their reply brief, the Braults assert that they tried the issue of reformation
by implication and consent at trial.  Even assuming arguendo that this
unpled claim was tried by consent below, the Braults cannot meet the necessary
standard of proof.  As set forth above, the Braults failed to introduce
any evidence regarding the circumstances of the drafting of the 1978 deed that
attempted to create the claimed easement.  Further, there was no evidence
to explain the sellers’ understanding of boundary lines.  Therefore, there
was no basis on which the court could reform the deed.  The court found
that there was no evidence to show what circumstances led to the use of the
word “southerly thereof” in the deed, and certainly no evidence, beyond a
reasonable doubt, of an agreement concerning any easement between the original
parties to the deed prior to the deed’s execution.  We find no basis to
reform the deed here.  
¶ 17.         Finally,
the Braults argue that the court erred in denying their motion to alter or
amend.  They maintain that the court should have either reopened the
evidence and allowed their new survey to be admitted into evidence or ordered a
new trial.  The Braults also assert that the court “added” to its decision
after trial by finding that there was no dispute about the location of the
property line on the southern side of the property.  
¶ 18.         The
trial court has broad discretion in ruling on motions to alter and amend, and
will be reversed only where there has been an abuse of discretion.  “Such
abuse will be found only when the trial court has entirely withheld its
discretion or where the exercise of its discretion was for clearly untenable
reasons or to an extent that is clearly untenable.”  Brueckner
v. Norwich Univ., 169 Vt. 118, 132-33, 730 A.2d 1086, 1097 (1999)
(quotation omitted).  Here, the court did not abuse its
discretion.  As the court explained, a Rule 59 motion “allows the trial
court to revise its initial judgment if necessary to relieve a party against
the unjust operation of the record resulting from the mistake or inadvertence
of the court and not the fault or neglect of a party.”  Rubin v.
Sterling Enters., Inc., 164 Vt. 582, 588, 674 A.2d
782 (1996).  The Braults had ample opportunity to present a survey at
trial but they neglected to do so.  Their failure to present this evidence
at trial is not attributable to any mistake or inadvertence of the court. 
Additionally, the court did not “add” to its decision, as the Braults
posit.  It merely observed that, even if the survey was admitted, it would
not change the result.  
Affirmed.
 
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 

