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NAMN, LLC v. Morello

Supreme Court of Nebraska

July 24, 2015

NAMN, LLC, APPELLEE,
v.
BERNARD J. MORELLO, APPELLANT

Appeal from the District Court for Douglas County: JAMES T. GLEASON, Judge.

Larry R. Forman, of Hillman, Forman, Childers & McCormack, for appellant.

Damien J. Wright, of Welch Law Firm, P.C., for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MILLER-LERMAN, and CASSEL, JJ. McCormack, J., not participating.

OPINION

Page 546

[291 Neb. 463] Miller-Lerman, J.

NATURE OF CASE

Bernard J. Morello appeals the order of the district court for Douglas County which ruled that NAMN, LLC, had a permanent easement implied from prior use over Morello's property for vehicle ingress

Page 547

and egress and that NAMN was entitled to make reasonable upgrades to the easement. Morello asserts, inter alia, that equitable considerations preclude a judgment in NAMN's favor and that NAMN did not make an adequate showing of necessity to establish an implied easement from prior use. We affirm.

STATEMENT OF FACTS

Morello owns property at the northwest corner of 42d and Center Streets in Omaha, Nebraska. NAMN owns property immediately to the west of Morello's property. Throughout this litigation, and hereinafter in this opinion, NAMN's property is referred to as " Lot 9" and Morello's property is referred to as " Lot 10." A residential home is located on Lot 9, and there are no structures on Lot 10. Lot 10 separates Lot 9 from 42d Street, which is to the east of both properties. Both properties are bordered on the south by Center Street; however, a retaining wall that was built by the city of Omaha (City) stands between Lot 9 and Center Street. At one time, Lots 9 and 10 were both owned by the same person.

NAMN filed this action against Morello in the district court on June 12, 2013. NAMN sought an order declaring that a permanent easement exists over Lot 10 as reasonably necessary to allow vehicular access to Lot 9 from 42d Street. [291 Neb. 464] NAMN also sought an order allowing NAMN to construct a concrete driveway over a portion of Lot 10 to connect Lot 9 to a curb ramp leading to 42d Street. NAMN sought other relief, including costs of the action and an injunction prohibiting Morello from interfering with NAMN's easement. NAMN alleged that Lot 9 was " 'landlocked,'" because Lot 10 stood between Lot 9 and 42d Street and the City's retaining wall stood between Lot 9 and Center Street. In his answer, Morello raised various affirmative defenses, including defenses he described as " negligence" and " equitable estoppel."

At a bench trial, the court received various pieces of evidence offered by NAMN, including plats, maps, deeds, and photographs intended to demonstrate the chain of title for the parties' respective properties and the situation of each property with respect to one another and with respect to 42d and Center Streets. The evidence indicated that Anita Fuentes acquired title to Lot 9 in 1988, at which time, the City owned Lot 10. The City deeded Lot 10 to Fuentes in 1993. Fuentes deeded Lot 9 to other owners in 1999, but she retained ownership of Lot 10 until 2012.

On May 18, 2012, a sheriff's deed transferring ownership of Lot 9 to a business entity was filed, and on July 2, a quitclaim deed from the business to NAMN was filed. At the time NAMN acquired Lot 9, the title to Lot 10 was still in Fuentes' name. However, on August 23, a sheriff's deed transferring ownership of Lot 10 to the Land Reutilization Commission of Douglas County was filed. On August 27, a special warranty deed from the commission to Morello was filed, and thus, Morello acquired Lot 10 after NAMN had acquired Lot 9. As noted, NAMN filed its complaint against Morello in this action in June 2013.

At trial, NAMN called Jeffrey Rothlisburger as a witness. Rothlisburger testified that he and his wife were the members of NAMN. Rothlisburger testified that he is a mortgage broker and real estate agent and that NAMN owns several residential properties, including Lot 9. He testified that NAMN bought Lot 9 with the intent of fixing up the property and reselling [291 Neb. 465] it. Rothlisburger testified that there is a single-family residence located on Lot 9 but that there is no structure located on Lot 10. Rothlisburger described Lot 10 as a " postage stamp [and

Page 548

an] abnormally small-sized lot." With regard to access to Lot 9 from Center Street, Rothlisburger testified that there is no driveway from Center Street to Lot 9 and that it would not be practical to build such a driveway, because the City had built a retaining wall on the strip of land located between Lot 9 and Center Street, which strip of land had been deeded to the City as part of a widening of Center Street. He testified that Lot 9 was accessible on foot from Center Street, because the City had built a stairway into the retaining wall.

With respect to access to Lot 9 from 42d Street, which Lot 9 does not abut, Rothlisburger testified that a curb ramp was cut into the sidewalk along 42d Street leading onto Lot 10 and that there was gravel on an area running from the curb ramp west across Lot 10 and onto Lot 9. He testified that the City had installed a sign on 42d Street north of the curb ramp. The sign reads " driveways."

Rothlisburger testified that if one drove a vehicle across the graveled area on Lot 10 continuing west onto Lot 9 and then parked, one would be able to enter the house on Lot 9 from the rear through a handicapped accessible entrance and one would not need to walk around to the front of the house. Rothlisburger testified that the curb ramp, the " driveways" sign, and the gravel area were all present at the time he purchased Lot 9. He further testified that there was no street parking allowed on either side of Center Street and no parking on 42d Street within six blocks to a mile of Lot 9.

When asked the purpose for which NAMN needed an easement over Lot 10, Rothlisburger testified that it was needed for vehicular access to Lot 9 and its house: " We would simply have no place to park at all. And the property is set up by the City this way. And it was -- there's just no other way for it to work." Rothlisburger further testified that NAMN had been using the graveled area on Lot 10 to reach Lot 9 and would ...


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