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O'Malley v. Little

Supreme Court of New Hampshire

August 31, 2017


          Argued: May 18, 2017

          Casassa Law Office, of Hampton (Daniel R. Hartley on the brief and orally), for the plaintiffs.

          Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for Aaron Little and Maryann Little.

          LYNN, J.

         Defendants Aaron and Maryann Little (Littles) appeal an order of the Superior Court (Anderson, J.) quieting title in the plaintiffs, Barbara F. O'Malley and her daughter Helen T. O'Malley, of a strip of land based upon adverse possession, as well as a previous order denying the Littles' motion for summary judgment.[1] We affirm.


         The pertinent facts are as follows. Barbara and her husband, Joseph, acquired the property at 7 McKay Avenue in Hampton (McKay Lot) in 1963 for use as a summer home. Over the next 50 years, the couple lived there with their children, including their daughter Helen, during the summer months; they also used the property for week-long vacations in April and intermittent weekend trips. The backyard of the McKay Lot abuts the backyard of the Littles' property at 6 Francis Street (Francis Lot).

         In October 1993, Barbara contracted for the installation of a chain link fence between the McKay Lot and the Francis Lot after tenants from the latter began walking across the yard of the Francis Lot with beach chairs and scratching Helen's car. The fence was placed about three to five feet over the property line between the two lots. Between the fence and the property line (disputed area), there is a clothesline as well as an outdoor shower and grill, all of which were used frequently by the O'Malley family. The plaintiffs and their relatives and friends would occasionally park against the fence.

         In 1996, following the death of her husband, Barbara deeded the McKay Lot to herself and her daughter Helen. Around this time, Helen planted three rose bushes in the disputed area against the fence, one of which still exists. Tenants of the Francis Lot and other individuals occasionally cut through a gap that existed between the fence and another fence that separated two other abutting properties, but few individuals walked across the disputed area. The individuals who did cross the disputed area did so on only a few occasions.

         The Littles purchased the Francis Lot in December 2008. Upon acquiring the property, the Littles assumed that the actual property line was represented by the fence between the two properties. However, in the spring of 2010, Scott McCarthy, a prior owner of the Francis Lot, informed the Littles that the plaintiffs' fence encroached approximately three to five feet onto the Francis Lot from the actual property line. The Littles confirmed this statement by reviewing a survey plan and measuring the property line with a tape measure. They then called the plaintiffs in April 2010 to inform them of this discovery, before stating that they needed to move the fence. The plaintiffs refused. The Littles claimed that, during this conversation, they gave the plaintiffs permission to continue using the disputed area; the plaintiffs denied that such permission was given. Aaron testified that, around this time, he visited the O'Malley property and walked along the fence with Helen, asserting that the correct boundary between the two properties was represented by several pins from an earlier surveyor's plan. However, the location of those pins did not align with the property line depicted on the surveyor's plan.

         Nothing more occurred until the fall of 2013, when the Littles once again e-mailed the plaintiffs and requested that the fence be moved. Although the Littles offered the plaintiffs a license to use the disputed area, the plaintiffs declined. In November, the Littles contacted the plaintiffs yet again and told them to remove the fence by the end of the year. The Littles threatened to take action to move the fence if the plaintiffs refused to relocate it. In December 2013, the plaintiffs instituted this suit to quiet title to the disputed area based upon adverse possession. The Littles subsequently moved for summary judgment. The trial court denied the motion. After conducting a two-day bench trial in June 2016, the court found in favor of the plaintiffs. Specifically, the trial court found that the plaintiffs did not receive permission to use the disputed area in 2010, and that the Littles' statement to the plaintiffs that the fence needed to be moved "would not put a reasonably prudent person on notice that they had actually been ousted." This appeal followed.


         On appeal, the Littles assert that they ousted the plaintiffs in 2010 and/or 2013, before the expiration of the 20-year statute of limitations applicable to adverse possession claims, by asserting their title to the disputed area and demanding that the fence be moved. The Littles further claim that they implicitly granted the plaintiffs permission by demanding the removal of the fence and then refraining from removing it. The Littles also contend that the trial court erred in denying their pretrial motion for summary judgment.

         Dealing with the last issue first, we decline to entertain the merits of the Littles' claim that the trial court erred in denying their motion for summary judgment because they have failed to brief a fundamental preliminary question bearing on the issue: whether an erroneous trial court order denying summary judgment is reviewable on appeal where, as here, the case proceeds to the entry of a final judgment after trial. We have never addressed this question and do not do so now. We note, however, that there is substantial authority for the proposition that in such circumstances the trial record supersedes the summary judgment record, thereby rendering any error in denial of summary judgment unreviewable on appeal. See Ortiz v. Jordan, 562 U.S. 180, 184 (2011); Brown v. State Farm Fire & Cas. Co., 90 A.3d 1054, 1057 (Conn. App. 2014); Holloman v. ...

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