Calvert v. Griggs


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Docket Number: 2007-CA-00102-SCT

Supreme Court: Opinion Link
Opinion Date: 10-16-2008
Opinion Author: Waller, P.J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Real property - Timeliness of appeal - M.R.C.P. 54(b) - Easement - Interference with right of passage
Judge(s) Concurring: Smith, C.J., Diaz, P.J., Carlson, Graves, Dickinson and Lamar, JJ.
Judge(s) Concurring Separately: Randolph, J., Specially Concurs With Separate Written Opinion Joined by Smith, C.J., Waller, P.J., Carlson and Dickinson, JJ.
Non Participating Judge(s): Easley, J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - REAL PROPERTY

Trial Court: Date of Trial Judgment: 12-18-2006
Appealed from: Clay County Chancery Court
Judge: Kenneth M. Burns
Disposition: The chancery court granted summary judgment to the Griggses.
Case Number: 2005-0124 (B)

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Leroy Calvert, Jr.




Gary Street Goodwin



 
  • Appellant #1 Brief

  • Appellee: Brian D. Griggs and Tanya N. Griggs Thomas B. Storey, Jr.; Michelle D. Easterling  

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    Topic: Real property - Timeliness of appeal - M.R.C.P. 54(b) - Easement - Interference with right of passage

    Summary of the Facts: Bryan and Tanya Griggs constructed a fence along an easement which crosses the Griggses’ property. The easement is the only means of access to a public road that Leroy Calvert, Jr. has. After Calvert destroyed portions of their fence, the Griggses filed suit seeking declaratory and injunctive relief. Calvert asserted a counterclaim. The chancery court granted summary judgment to the Griggses. The court found that the Griggses could erect fences and gates, so long as Calvert was given keys to any locks. Calvert was enjoined from any further interference, and was assessed $11,396 in damages. Calvert appeals.

    Summary of Opinion Analysis: Issue 1: Timeliness of appeal The Griggses argue that Calvert’s appeal from the summary judgment order entered on June 21, 2006, is untimely. Absent certification under M.R.C.P. 54(b), any order in a multiple party or multiple claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory. At the hearing on the Griggses’ first motion for summary judgment, the chancellor reserved ruling on the counterclaim. After the chancellor granted the Griggses’ first motion for summary judgment, they filed a second motion for summary judgment on Calvert’s counterclaim. The chancellor’s December 18, 2006, order subsequently disposed of Calvert’s counterclaim and stated that the summary judgment order dated June 21, 2006, is made the final judgment under Rule 54. When a trial court certifies a claim for appeal under Rule 54(b), the time for taking the appeal begins to run on the date of certification. Therefore, the chancellor’s December 18 order constituted the final, appealable judgment and Calvert’s appeal was filed within thirty days of the order. Issue 2: Easement Calvert argues that there are genuine issues of material fact concerning the intention of the parties who created the easement, as well as the reasonableness of the Griggses’ fence and any future improvements. Unless the creators’ intent indicates otherwise, the owner of a servient estate may erect gates or bars across a way provided they are so located, constructed, and maintained as not unreasonably to interfere with the right of passage and they are necessary for the preservation and use of the servient estate. By filing for a declaratory judgment and an injunction, the Griggses assumed the burden of proof. Thus, the Griggses must prove either that the original executors intended to allow the servient estate to erect gates and fences around or alongside the easement or the original executors intent is undeterminable, but the erection of the fence or gates does not unreasonably interfere with Calvert’s right of passage and is necessary for the preservation and use of the Griggses’ property. The record is almost completely silent with respect to the grantor and grantee’s intent concerning fencing or gates. Thus, the Griggses failed to meet their burden of proving that the original creators intended to allow the servient estate to erect fencing and gates on or alongside the easement. Calvert argues that the Griggses’ improvements unreasonably interfere with his right of passage, because he would be required to enter his driveway; exit his vehicle and open the first gate; return to his vehicle and drive through this gate; exit his vehicle once again and close the gate; and return to his vehicle, drive to the second gate, and start the process all over again. Reasonable persons could differ as to whether this constitutes an unreasonable interference with a homeowner’s right of passage, and therefore, this question is best left to the trier of fact. Since a genuine issue of material fact exists as to whether the fencing and gates are necessary for the preservation and use of the Griggses’ property, the trial court erred in its award of declaratory relief on summary judgment.


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