Bridge BLOQ NAC v. Sorf , 447 P.3d 1278 ( 2019 )

2019 UT App 132THE UTAH COURT OF APPEALS
BRIDGE BLOQ NAC LLC,
Appellant,
v.
ZDENEK SORF, CNC MACHINE AND DESIGN INC.,
AND FRS LEASING LLC,
Appellees.
Opinion
No. 20171043-CA
Filed August 1, 2019
Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 110916014
Leslie Van Frank, Stephen T. Hester, and Bradley M.
Strassberg, Attorneys for Appellant
Paul M. Belnap and Alan R. Houston, Attorneys
for Appellees
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. ORME and KATE APPLEBY concurred.
POHLMAN, Judge:
¶1 This dispute involves whether Appellees Zdenek Sorf
(Mr. Sorf), CNC Machine and Design Inc., and FRS Leasing LLC
(collectively, Sorf) 1 have an implied easement over property
1. We acknowledge that, at times, our use of Sorf to collectively
refer to all three appellees is over-inclusive. However, because
the parties and the district court regularly referred to the
appellees and their interests collectively, we do the same here.
Bridge BLOQ NAC v. Sorf
belonging to Bridge BLOQ NAC LLC. 2 The trial court ruled that
an easement existed. Bridge appeals, and we affirm.
BACKGROUND
¶2 Bridge and Sorf own adjoining properties separated by a
paved alley. Bridge owns the east property and Sorf owns the
west property. The alley, which is the subject of this dispute, is
on Bridge’s property.
¶3 On each property sits a building—the east building and
the west building. The west building is approximately one foot
from the boundary line between the two properties. The east
building is approximately thirty feet to the east of the same
boundary line.
¶4 Both properties were once owned by Sorf’s predecessor, a
company formed by Mr. Sorf and a business partner (Partner). In
2001, the east property was conveyed to Partner, while Sorf
retained the west property. After the properties were severed,
Sorf continued to use the alley in the same manner it was used
before severance. Specifically, Sorf used the alley for ingress and
egress, received deliveries to the west building through the alley,
2. This appeal was originally taken by Sixth South Properties
LLC, which owned the subject property before Bridge. Before
oral argument, Sixth South moved under rule 38(c) of the Utah
Rules of Appellate Procedure to substitute Bridge as the
appellant because Sixth South had conveyed the property to
Bridge by special warranty deed. No objection was raised to the
substitution, and we granted the motion. We therefore treat
Bridge as the plaintiff and appellant throughout this opinion and
attribute Sixth South’s actions and arguments, both below and
on appeal, to Bridge.
20171043-CA 2 2019 UT App 132Bridge BLOQ NAC v. Sorf
and parked in the alley. In addition, before and after severance, a
tenant of the west building (Tenant) was given exclusive use of
two parking spaces in the southernmost part of the alley. Tenant
testified at trial that without those spots, it would “probably
have to move” out of the west building.
¶5 Six years after severance, a dispute developed between
Sorf and Partner regarding rights to the alley. Sorf filed a Notice
of Easement, stating that “[a]n easement . . . in the alley is
claimed for pedestrian and vehicle access for the entire length of
the alley, for all parking stalls located therein, for garbage
receptacles and for storage of raw materials, storage of metal
bars and ingots, pallets, and machinery.” The Notice of
Easement further claimed that Sorf and its predecessors had
used the alley “continuously for fifty-one (51) years.”
¶6 Through a series of conveyances, the east property—
including the alley—came to belong to Bridge, which
subsequently brought suit to quiet title. Sorf counterclaimed,
requesting (as relevant here) a declaratory judgment upholding
the existence of an implied easement. 3
¶7 As the litigation proceeded, Mr. Sorf was deposed. He
testified that when he severed the properties in 2001, he
intended to split “everything 50/50” and that he would have
“never agree[d]” to someone else owning the alley. He also
testified that “from day one, [he] ke[pt] using that property as
[his] property . . . for [the] next six years” until he found out he
did not own it. “That’s when I start[ed] fighting back,” explained
Mr. Sorf, “because this was not the agreement.”
3. Sorf asserted other counterclaims, including a request for
reformation of the 2001 deed severing the east and west
properties. This counterclaim was eventually dismissed as
barred by the applicable statute of limitations.
20171043-CA 3 2019 UT App 132Bridge BLOQ NAC v. Sorf
¶8 Mr. Sorf expressed similar sentiments in two declarations.
In the first, he stated,
[Partner] and I agreed to dissolve our business
relationship in the year 2001 and at that time we
agreed that the alley would be split 50-50, just as
we had discussed previously, and that the alley
would continue to be used as in the past.
I did not know the alley was part of the property
deeded to [Partner] when we ended our
relationship, and I believed that we had divided
the alley equally.
In his second declaration, he confirmed,
I NEVER would have agreed to conveyance of the
east property to [Partner] if I had known that the
alley was located on the east property because the
alley is critical to the operation of [the west
property].
¶9 Based partly on these statements, Bridge moved for
summary judgment on Sorf’s sole remaining counterclaim for an
implied easement. It argued that there was “no basis to imply”
the intent necessary for an implied easement, because “Sorf has
made his intent clear by virtue of his . . . sworn testimony in this
case.” Bridge reasoned that “Sorf intended to own half of the
alley, not have permission to use it.” (Emphasis added.) Because
Mr. Sorf stated that he never would have conveyed the east
property and alley to Partner in 2001, Bridge asserted that Sorf’s
claim for an implied easement failed as a matter of law.
¶10 The trial court denied the summary judgment motion. It
determined, relying on Adamson v. Brockbank, 185 P.2d 264 (Utah
1947), that in the context of implied easements “we’re striving
[for] an intent that the parties would have had if they’d thought
20171043-CA 4 2019 UT App 132Bridge BLOQ NAC v. Sorf
of it.” Thus, while Mr. Sorf’s “recollection of his subjective
intent” was “probative” for the court, it was “not dispositive.”
The court concluded that the issue was “entitled to be tried”
rather than resolved as a matter of law.
¶11 A jury trial followed. After presentation of the evidence,
Bridge moved for a directed verdict. The motion repeated, in
part, what had been argued in the motion for summary
judgment. That is, Bridge argued (1) that because of Mr. Sorf’s
sworn testimony there was no evidence “that the intent of the
parties was to create an implied easement at the time of
severance” and (2) that Sorf “made clear in this case that what
[it] seeks is not an easement, but ownership,” especially with
respect to parking in the alley. Bridge asserted that an easement
is a limited, “non-possessory interest in land” and that Sorf
“intends to occupy all of the parking spaces” in the alley,
“necessarily to the exclusion of [Bridge].” (Cleaned up.)
¶12 The trial court denied the motion for a directed verdict. It
again determined that the parties had presented a jury question
as to intent. And as to parking, the court concluded that Utah
and other states “recognize parking easements.” In other words,
the court concluded that the law does not foreclose an easement
for parking and that there was “evidence for which a jury might
conclude that there was a reasonable necessity for parking” at
the time of severance.
¶13 The jury was tasked with deciding whether the factual
elements of an implied easement were met, and it found each
element was satisfied. 4 Specifically, the jury found, by clear and
4. “The ultimate determination of whether an easement exists is
a conclusion of law,” but “the existence of an easement is also a
highly fact-dependent question.” Carrier v. Lindquist, 2001 UT
105, ¶ 11, 37 P.3d 1112. Thus, the jury found the factual elements
(continued…)
20171043-CA 5 2019 UT App 132Bridge BLOQ NAC v. Sorf
convincing evidence, 5 that Sorf’s claimed easement was
“apparent, obvious, and visible” at the time of severance in 2001;
that the claimed easement was “reasonably necessary” to Sorf’s
use of the west property; that Sorf’s use of the claimed easement
was “continuous rather than sporadic”; and, finally, that Sorf
and Partner at the time of severance “intended, or, having
formed no conscious intent, probably would have intended, to
create an easement” in favor of the west property.
¶14 After trial, but before the court entered final judgment in
the case, Bridge moved for judgment notwithstanding the
verdict (JNOV) based primarily on this court’s intervening
decision in Judd v. Bowen, 2017 UT App 56, 397 P.3d 686, cert.
dismissed as improvidently granted, 2018 UT 47, 428 P.3d 1032.
There, this court held that the doctrine of prescriptive easements
could not grant a parking right that totally excluded the owner
from his property. Id. ¶¶ 55, 68. Bridge argued that under Judd,
“no easement for parking [in the alley could] be established, as a
matter of law.”
¶15 The trial court denied the JNOV motion and
distinguished Judd. First, it concluded that Judd was a prescriptive
easement case—not an implied easement case. It reasoned that
(…continued)
of an implied easement, but the trial court ultimately granted the
easement.
5. The trial court ruled as a matter “of first impression” that
because implied easements “‘deprive an individual of an interest
in real property,’” they must be established by clear and
convincing evidence. (Quoting Essential Botanical Farms, LC v.
Kay, 2011 UT 71, ¶ 22, 270 P.3d 430.) The parties appear to accept
the clear and convincing evidence standard. We therefore
assume without deciding that that standard applies.
20171043-CA 6 2019 UT App 132Bridge BLOQ NAC v. Sorf
parties can expressly “contract away their rights to exclusive
use” and that the jury found that is what impliedly happened
here. The court stated, “This is not a matter of determining
whether a prescriptive right can arise through non-exclusive use
versus a possessory right that can be obtained only through
exclusive use. This is a right that is implied by the circumstances
and the parties’ actual or probable intent.” Second, the court
concluded that Judd was factually distinguishable. According to
the court, Judd concerned a narrow, one-lane driveway with
limited parking and the Judd court “repeatedly emphasized the
peculiar facts in that case.” By way of contrast, the trial court
found in this case that there were a total of around eight parking
spaces in the alley and that there was “very little evidence”
concerning the extent of Sorf’s interference with Bridge’s parking
rights.
¶16 The trial court then entered final judgment, concluding
that “an implied easement over the alley was created in favor of
the west property” in 2001 and that the easement covered
ingress and egress, deliveries to the west building, and parking.
As it relates to parking, the court determined that Sorf has an
exclusive easement for daily parking across the two
southernmost parking spaces in the alley and a nonexclusive
easement for the remaining parking spaces. 6 Accordingly, the
court granted Sorf’s request for a declaratory judgment and
dismissed Bridge’s quiet title claim.
¶17 Bridge appeals.
6. The court found that when the properties were severed in
2001, “it was the parties’ intent that Mr. Sorf be able to continue
operating the business in the same way that it had been operated
before the separation, which necessarily included leasing [the
two parking spaces to Tenant].”
20171043-CA 7 2019 UT App 132Bridge BLOQ NAC v. Sorf
ISSUES AND STANDARDS OF REVIEW
¶18 Bridge first contends that the trial court erred when it
denied its motion for summary judgment on the nonexistence of
an implied easement. “Summary judgment is appropriate when
there are no genuine issues of material fact and the moving party
is entitled to judgment as a matter of law, viewing the facts and
all reasonable inferences drawn therefrom in a light most
favorable to the nonmoving party.” Stephenson v. Elison, 2017 UT
App 149, ¶ 20, 405 P.3d 733 (cleaned up). We review the trial
court’s “ultimate grant or denial of summary judgment for
correctness.” Id. (cleaned up).
¶19 Bridge next contends that the trial court erred when it
denied its motion for a directed verdict. “A trial court is justified
in granting a directed verdict only if, examining all evidence in a
light most favorable to the non-moving party, there is no
competent evidence that would support a verdict in the non-
moving party’s favor.” Merino v. Albertsons, Inc., 1999 UT 14, ¶ 3,
975 P.2d 467. “A motion for directed verdict can be granted only
when the moving party is entitled to judgment as a matter of
law.” Id. (cleaned up).
¶20 Bridge next contends that the trial court erred when it
denied its JNOV motion. In addressing a JNOV motion, “a trial
court must look at the evidence and all reasonable inferences in a
light most favorable to the nonmoving party, granting the . . .
motion only if this examination demonstrates that there is
insufficient evidence to uphold the verdict.” Franklin v.
Stevenson, 1999 UT 61, ¶ 6, 987 P.2d 22. We review the trial
court’s ruling on a JNOV motion for correctness. ASC Utah, Inc.
v. Wolf Mountain Resorts, LC, 2013 UT 24, ¶ 18, 309 P.3d 201.
¶21 Bridge finally contends that the trial court erred when it
determined that Sorf was entitled under the easement to parking
privileges, including two parking spots for Sorf’s exclusive use.
20171043-CA 8 2019 UT App 132Bridge BLOQ NAC v. Sorf
“Determining the scope of an easement is a question of law.”
Conatser v. Johnson, 2008 UT 48, ¶ 10, 194 P.3d 897, superseded by
statute on other grounds as stated in Utah Stream Access Coal. v.
Orange St. Dev., 2017 UT 82, 416 P.3d 553. We accordingly review
for correctness the trial court’s determination on the scope of any
easement. Id.ANALYSIS
¶22 Bridge’s four contentions on appeal break down into two
basic inquiries: (I) does Sorf have an implied easement in the
alley? and (II) if so, what is the scope of that implied easement?
I. Sorf has an implied easement in the alley.
¶23 The answer to the first question—whether Sorf has an
implied easement in the alley—disposes of Bridge’s first three
contentions. That is, if there is an easement, the trial court did
not err in denying the motion for summary judgment, the
motion for a directed verdict, or the JNOV motion.
¶24 To imply an easement from prior use, the fact-finder must
find evidence of four elements: “(1) that unity of title was
followed by severance; (2) that the servitude was apparent,
obvious, and visible at the time of severance; (3) that the
easement was reasonably necessary to the enjoyment of the
dominant estate; and (4) that the use of the easement was
continuous rather than sporadic.” Butler v. Lee, 774 P.2d 1150,
1152 (Utah Ct. App. 1989); accord Morris v. Blunt, 161 P. 1127,
1132 (Utah 1916).
¶25 There is not much dispute in this case about these factual
elements being met. The first element was undisputed, and the
jury found clear and convincing evidence for the remaining
three. The jury’s factual determinations are not challenged. Sorf,
20171043-CA 9 2019 UT App 132Bridge BLOQ NAC v. Sorf
along with Partner, owned both the east and west properties
and, in 2001, severed them (element one). At that time, the alley
was apparently, obviously, and visibly used by both the
properties (element two). Also at that time, the alley was
reasonably necessary to the west property’s operations (element
three). Finally, Sorf used the alley continuously, rather than
sporadically, at the time of the conveyance (element four).
¶26 But for Bridge’s argument about intent, our analysis
would be finished. Bridge contends that, elements aside, “intent
is the key inquiry in deciding whether to imply an easement.” In
Butler, we stated that “whether an easement arises by
implication . . . depends on the intent of the parties, which must
clearly appear in order to sustain an easement by implication.”
774 P.2d at 1153 n.1 (emphasis added) (cleaned up); see also Oak
Lane Homeowners Ass’n v. Griffin, 2009 UT App 248, ¶ 18, 219
P.3d 64 (“Courts are willing to imply an easement because they
are convinced that the parties intended to create an easement
based on the circumstances accompanying a conveyance of
property.” (cleaned up)), aff’d, 2011 UT 25, 255 P.3d 677. And
Bridge argues from these precedents that Sorf cannot have an
implied easement because Mr. Sorf never intended to have an
easement; he wanted to own the alley “50/50.”
¶27 The trial court correctly rejected this argument. In
Adamson v. Brockbank, 185 P.2d 264 (Utah 1947), our supreme
court described the intent necessary to imply an easement:
The inference drawn represents an attempt to
ascribe an intention to parties who had not thought
or had not bothered to put the intention into
words, or perhaps more often, to parties who
actually had formed no intention conscious to
themselves. In the latter aspect, the implication
approaches in fact, if not in theory, crediting the
parties with an intention which they did not have,
20171043-CA 10 2019 UT App 132Bridge BLOQ NAC v. Sorf
but which they probably would have had had they
actually foreseen what they might have foreseen
from information available at the time of the
conveyance.
Id. at 270 (cleaned up). Later, in Butler, we held that Adamson
applied even when the deed between the property owners
specifically disavowed “any other agreements, including [one
for] the disputed easement.” 774 P.2d at 1153. Instead of relying
on the disavowal in the deed, we looked to the circumstances
attending the transaction to discern the parties’ probable intent.
Id.¶28 Here, Mr. Sorf testified many years after the severance in
2001 that he intended to own the alley equally with Partner. He
“did not know the alley was part of” the east property and
instead believed that they “had divided the alley equally.” And
he stated that he “NEVER” would have sold the alley because it
was “critical to the operation” of the west property. But our
precedent makes clear that these statements are not to be
considered in a vacuum. Part of the attendant circumstances of
the severance of the east and west properties was Partner’s
unknown ownership of the alley. And because Sorf was
unaware of the actual legal boundary between the two
properties at the time of the severance, it was appropriate for the
court to allow the jury to credit Sorf with an unexpressed
intention that Sorf “probably would have had had [it] actually
foreseen what [it] might have foreseen.” See Adamson, 185 P.2d at
270 (cleaned up). In fact, when viewed in context, Mr. Sorf’s
statements help confirm the existence of an implied easement.
Far from establishing that Sorf was single-mindedly committed
to ownership or nothing, his testimony demonstrates the
primary importance of the alley to the west property’s use and
continued enjoyment.
20171043-CA 11 2019 UT App 132Bridge BLOQ NAC v. Sorf
¶29 Because it was possible for the jury to conclude that Sorf
and Partner intended, or probably would have intended, to
create an easement if Sorf had known that Partner inadvertently
acquired ownership of the alley, the trial court did not err in
denying Bridge’s motion for summary judgment, motion for a
directed verdict, or JNOV motion. See id.; Butler, 774 P.2d at 1153.
II. The implied easement’s scope includes parking.
¶30 Now we must decide the easement’s scope, specifically
whether the implied easement grants Sorf the right to park in the
alley. 7
¶31 Utah has not yet adopted a test for defining the scope of
an implied easement. The trial court determined the easement’s
scope based on “the parties’ intent and necessity existing at the
time of severance.” And a number of other jurisdictions
determine the scope of an implied easement based on the
parties’ probable expectations at the time of severance. See, e.g.,
Tobias v. Dailey, 998 P.2d 1091, 1095 (Ariz. Ct. App. 2000);
Thorstrom v. Thorstrom, 127 Cal. Rptr. 3d 526, 539 (Ct. App. 2011);
McCoy v. Barr, 275 P.3d 914, 921 (Kan. Ct. App. 2012); Tungsten
Holdings, Inc. v. Kimberlin, 2000 MT 24, ¶ 27, 994 P.2d 1114,
overruled on other grounds by Shammel v. Canyon Res. Corp., 2003
MT 372, 82 P.3d 912; Barbour v. Pate, 748 S.E.2d 14, 18 (N.C. Ct.
App. 2013); see also Restatement (First) of Property § 484 cmt. b
(Am. Law Inst. 1944) (explaining that the extent of an easement
by implication “is to be measured . . . by such uses as the parties
might reasonably have expected from future uses of the
dominant tenement”). This approach is an “inherently factual”
one, McCoy, 275 P.3d at 921, with the parties’ reasonable
expectations being “ascertained from the circumstances existing
7. There is no dispute that, if an easement exists, it would cover
ingress, egress, and deliveries.
20171043-CA 12 2019 UT App 132Bridge BLOQ NAC v. Sorf
at the time of the conveyance,” Thorstrom, 127 Cal. Rptr. 3d at
539 (cleaned up); see also Restatement (First) of Property § 484
cmt. b.
¶32 We agree with this approach. The trial court found 8 that
at the time of severance “it was the parties’ intent that Mr. Sorf
be able to continue operating the business [out of the west
building] in the same way that it had been operated before the
separation, which necessarily included leasing a portion of the
west property to [Tenant], along with the two parking spaces
guaranteed in that lease, and allowing [Sorf’s] employees to use
the other parking spaces” in the alley. (Cleaned up.) It further
found that from 2001, the time of severance, to 2006, the time of
the parties’ first disagreement, Partner “never restricted or
attempted to restrict Sorf or its employees or tenants from
parking” in the alley. Bridge does not dispute these findings.
Instead, Bridge directs its challenges to the evidence of the
parties’ subjective intent. We have already rejected Bridge’s
attempt to undermine the probable intention of the parties based
on subjective intent and see no error in the trial court’s
conclusion that the parties intended that Sorf and Tenant be able
to park in the alley after severance. Thus, based on the court’s
factual findings, we conclude that the parties reasonably
expected parking rights in favor of the west property.
¶33 We also conclude that Judd v. Bowen, 2017 UT App 56, 397
P.3d 686, cert. dismissed as improvidently granted, 2018 UT 47, 428
P.3d 1032, does not, as Bridge contends, compel a different
result. First, Judd never held, or even suggested, that parking
8. After accepting the jury’s determination that the factual
elements for an implied easement were satisfied in this case,
including that the easement is for, among other things, parking,
the trial court determined the scope of the easement and
supported its determination with additional factual findings.
20171043-CA 13 2019 UT App 132Bridge BLOQ NAC v. Sorf
easements are categorically impermissible. 9 See id. ¶ 36. It held
only that “[u]nder the circumstances of [that] case,” a
prescriptive easement could not totally exclude the titled owner
from its property. Id. ¶¶ 55, 68. The case concerned a “narrow,
one-car-wide driveway” that allowed for only limited parking.
Id. ¶¶ 36, 47–48. In contrast, the alley here provided for a total of
approximately eight parking spots, and the trial court found that
there was “very little evidence” concerning the extent of Sorf’s
interference with Bridge’s parking rights. Further, the parties
used the alley for years, both before and after severance, with no
problems.
¶34 Second, Judd limited its discussion to prescriptive
easements. E.g., id. ¶¶ 36, 54, 68. It began by contrasting the
ownership rights one can receive through adverse possession
with the easement rights one can receive by prescription. Id.
¶¶ 37–46. And the Judd court concluded that the ability to
exclude owners from their property more closely resembles the
ownership rights one can acquire only through adverse
possession. Id. ¶ 49. Here, this distinction is not legally relevant.
As the trial court reasoned, parties can expressly grant a parking
right (even an exclusive one), and whether parties impliedly
grant a parking right (including an exclusive one) depends on
the parties’ probable expectations. See supra ¶¶ 31–32. So if the
parties, as here, reasonably expected exclusive use of parking
spots after severance, then exclusive use is what the implied
easement grants. Cf. Papanikolas Bros. Enters. v. Sugarhouse
9. Indeed, our supreme court recognized as much when it
dismissed its grant of certiorari as having been improvidently
granted. See Judd v. Bowen, 2018 UT 47, ¶ 17, 428 P.3d 1032. It
stated that “since the court of appeals did not make a categorical
determination concerning the viability of prescriptive parking
easements,” it would not be appropriate to address the issue. Id.20171043-CA 14 2019 UT App 132Bridge BLOQ NAC v. Sorf
Shopping Center Assocs., 535 P.2d 1256, 1261 (Utah 1975)
(enforcing an agreement providing for a parking easement).
CONCLUSION
¶35 We conclude that an implied easement in favor of the
west property exists in the alley. The trial court therefore did not
err in denying Bridge’s motions for summary judgment, a
directed verdict, or JNOV. We further conclude that the implied
easement in favor of the west property grants parking rights in
the alley, including two exclusive parking spots. Accordingly,
the trial court’s judgment is affirmed.
20171043-CA 15 2019 UT App 132