Sara Lynn & a. v. The Wentworth By the Sea Master Association

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0388, Sara Lynn & a. v. The Wentworth By
the Sea Master Association, the court on April 10, 2020, issued
the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The defendant, The Wentworth By the Sea Master Association
(association), appeals, and the plaintiffs, Sara Lynn and Paul Lynn (the Lynns),
cross-appeal, an order of the Superior Court (Schulman, J.) granting summary
judgment in favor of the Lynns and denying the association’s cross-motion for
summary judgment relative to the parties’ claims for declaratory and injunctive
relief. The present dispute concerns the authority of the association, a
homeowners’ association, to levy a special assessment against the Lynns’ home
in the amount of $301,559 for the attorney’s fees and costs that the association
incurred in litigating the case that we decided in Lynn v. Wentworth By The
Sea Master Ass’n, 169 N.H. 77 (2016). In ruling in favor of the Lynns, the trial
court concluded that the association was not entitled to levy the assessment
under its declaration of covenants, conditions, and restrictions (declaration).

The underlying litigation concerned the validity of an easement for beach
access burdening the Lynns’ oceanfront property. The Lynns sought
declaratory and injunctive relief challenging the validity and enforceability of
the easement. Id. at 80. In ruling that the easement was valid and
enforceable, the trial court determined that an implied easement was created
when the Lynns’ predecessors-in-title purchased the property. Id. at 81. On
appeal, we agreed with the Lynns that an easement implied by prior use did
not exist, and rejected the association’s counterargument that it had an
easement implied by common plan. Id. at 82-83. Nevertheless, we affirmed
the trial court’s judgment on the basis that an express easement, and not an
implied easement, was created as a matter of law. Id. at 83-86. In so ruling,
we acknowledged that language in the deed to the Lynns’ predecessors-in-title
concerning easements that “may be recorded in the future” was ambiguous as
to whether the parties intended to create the specific easement at issue, which
was first reflected on a site plan recorded several days after the deed. See id. at
79, 85. However, we determined that extrinsic evidence testified to by the
predecessors-in-title and a representative of the original developer, which the
trial court had allowed over the Lynns’ objection that the association first
disclosed it after the close of discovery, established that the deed in fact
intended to convey the relevant easement. See id. at 79, 80-81, 85-86.

Nearly two years after we issued our mandate in Lynn, the association
notified the Lynns of its intent to assess them $301,559 for its Lynn costs and
attorney’s fees. The association relied upon a provision of the declaration
authorizing the association to “levy a Special Assessment against any Unit . . .
to reimburse [it] for Costs incurred in bringing the Unit . . . into compliance
with the provisions of the Declaration, any applicable Supplemental
Declaration, the Articles, the By-Laws and the Association rules and
regulations.” The association posited that, because the Lynns had sought to
have the easement judicially declared invalid in Lynn, they necessarily had
attempted to “convert” a portion of its “common area,” which the association
argued included the easement, and therefore, the association argued that the
Lynns had “tried to interfere with [its] common area rights.” The Lynn lawsuit,
according to the association, “was the legal equivalent of trying to build a gate
to block the [a]ssociation’s beach access pathway.” Accordingly, the
association asserted that its attorney’s fees and costs were incurred to bring
the Lynns’ unit into compliance with the declaration.

In rejecting the association’s position, the trial court agreed with it that
the easement fell within the meaning of “common area” under the declaration,
and that “blockading the beach access easement” would have entitled the
association to a special assessment. The trial court rejected the association’s
argument, however, that merely seeking a judicial determination as to “the
existence vel non of an easement” was the equivalent of blocking the easement.
The trial court observed that the association had voluntarily nonsuited its
counterclaim in Lynn in which it had sought to enjoin alleged harassment of
association members who used the easement, and that there was no evidence
that the Lynns had in fact blocked use of the easement. Accordingly, the trial
court concluded that the Lynns’ unit was not in a state of noncompliance and,
thus, that the Lynn attorney’s fees and costs were not recoverable under the
sole provision of the declaration relied upon by the association.

On appeal, the association characterizes Lynn as “an attempted taking of
a known common-area right.” By seeking “to extinguish [its] common-area
rights,” the association contends, “the Lynns fell out of compliance with the
Declaration.” As noted above, however, the validity of the easement in Lynn
ultimately turned upon extrinsic evidence testified to by the parties’
predecessors-in-title. Thus, prior to Lynn, the easement’s validity was far from
unassailable. On cross-appeal, the Lynns challenge the trial court’s
determination that the easement is part of the “common area,” and argue that,
because the association unsuccessfully sought attorney’s fees in Lynn, its
claim for attorney’s fees pursuant to the declaration is barred by res judicata.

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 As the appealing party, the association has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s well-reasoned order, the association’s challenges to it,
the relevant law,1 and the record submitted on appeal, we conclude that the
association has not demonstrated that the trial court erred by ruling that the
Lynns were not out of compliance with the declaration. See id. Accordingly,
we need not address the Lynns’ arguments on cross-appeal.2

Affirmed.

Hicks, Bassett, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

1 Even assuming that the easement constituted “common area,” the association cites no

authority standing for the proposition that merely bringing a legal challenge to the validity of
an easement constituting part of a homeowner’s association’s “common area,” without more,
amounts to a breach of restrictive covenants. We note that in Willow Lake Residential Ass’n v.
Juliano, 80 So. 3d 226 (Ala. Civ. App. 2010), relied upon by the association, the homeowner
had in fact violated restrictive covenants by building within common area, id. at 231, 236-37,
and that the award of attorney’s fees was premised not simply upon a general enforcement
provision, but upon a provision entitling the homeowner’s association to recover attorney’s fees
and costs if it was required to take legal action to abate, enjoin, or remove a violation or breach
of its restrictive covenants, see id. at 240-42.
2 Because the trial court correctly ruled that merely challenging the validity of the easement did

not place the Lynns out of compliance with the declaration, we agree with the Lynns’ assertion
in footnote 12 of their brief that the trial court’s determination that the easement was part of
the “common area” was, in effect, dicta that was not essential to its ultimate decision. Tyler v.
Hannaford Bros., 161 N.H. 242, 247 (2010).

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