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HomeMy WebLinkAbout2004-6390 Civil JAMES B. SMALL, SR. AND : IN THE COURT OF COMMON PLEAS OF BARBARA H. SMALL, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : KIMBERLY M. REED, : DEFENDANT : 04-6390 CIVIL TERM IN RE: MOTION OF DEFENDANT TO ENFORCEMENT SETTLEMENT BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., August 2, 2007:-- Plaintiffs, James B. Small, Sr. and Barbara H. Small filed a complaint seeking to establish a right-of-way to their land over a twelve foot wide dirt road on the land of 1 defendant, Kimberly M. Reed. The case was listed for trial but removed following a pre-trial conference when attorneys H. Anthony Adams, Esquire, representing the Smalls, and E. Ralph Godfrey, Esquire, representing Reed, reached a general agreement to settle the case. The attorneys then started negotiating the specific terms of a right-of-way agreement. On September 27, 2006, Adams sent Godfrey a proposed right-of-way agreement that did not impose any restrictions on its use by the Smalls. On October 31, Godfrey sent Adams a revised right-of-way agreement and settlement agreement which did contain some restrictions. On December 4, Adams responded: After lengthy discussion and much cajouling [sic] I have convinced Mr. & Mrs. Small to accept the right-of-way agreement with a minor change. __________ 1 Count I sought relief by an easement implied by necessity, Count II by adverse possession, and Count III by an express easement. 04-6390 CIVIL TERM Mr. Small does not intend to do any logging on any of his property. He is concerned however that he would be precluded from doing so or even taking select hardwoods from his property forever. I realize this was our clients [sic] main concern. I suggest we agreement [sic] to allow limited future use for logging. The third Whereas clause will read ------ but not limited to, any for access for any future residential commercial operation or use, developments or neighborhoods . As used herein the term commercial use shall not preclude the future use of the road for the removal of timber not more frequently then [sic] once every two years for a period not in excess of two months after which the road shall be returned by Grantees their heirs or assigns to a condition equal to or better than existing prior to the period of use. Paragraph B would be modified to include the same language. (Emphasis added.) On February 21, 2007, Adams wrote Godfrey that “[m]y client is aware that the other litigation in which I was involved resulted in a court order for an easement without any qualifications. He now wants me to relist the case since he sees no point in giving any quarter.” On March 2, Godfrey sent Adams a right-of-way agreement and settlement agreement that was executed by his client on March 1. The right-of-way agreement granted and conveyed to the Smalls and their heirs and assigns a right-of- way on Reed’s property, twelve feet in width, and contained the following provision: WHEREAS , the parties have agreed that the Grantees, their heirs and assigns, shall have a right-of-way, as described herein, for their residential access only to and from Grantees’ property. This right-of-way is strictly for the private residential use only of Grantees, and the private right-of-way shall not be used for, permit or include the right to use the private right-of-way for any other reason including, but not limited to, any for access for any future residential commercial operation or use, developments, future homes, or neighborhoods . As used herein, the term commercial use shall not preclude the future use of the road for the removal of timber not more frequently then [sic] once every two years for a period not in excess of two months after which the road shall be returned by Grantees their heirs or assigns to a condition equal to or -2- 04-6390 CIVIL TERM Grantees shall provide better than existing prior to the period of use. written notice thirty (30 [sic] -3- 04-6390 CIVIL TERM days in advance of removing the lumber to the Grantor, her heirs, successors and assigns. (Emphasis added.) Godfrey stated in an accompanying letter to Adams that “the only change in the right-of-way agreement is the requirement that your client notify my client thirty (30) days in advance that they intend on logging the property.” On March 26, 2007, Adams wrote to Godfrey: My clients would not agree with the restrictions on using their land in the future. It is their intent to give the land either during their lifetimes or by will or intestacy to their two children. My clients have no intent to place any more dwellings on any of their lots (7 total) but want their children to have the option of using the land for a cabin or residence in the future. Both children are in their 40’s or 50’s so it is unlikely that they will use it in this manner. Also, the new land development laws would probably restrict the use of the land with only a 12-foot right of way to access the same. In trying to find something palatable to both parties, I suggest we remove homes and define residential developments and neighborhoods as the placement of more than one building on any single lot owned by the Plaintiffs or the further subdivision or division by land development plan or any parcel owned by the Plaintiffs. Please let me know. When the Smalls did not execute the right-of-way and settlement agreement that had been signed by Reed and forwarded to Adams on March 2, 2007, Reed filed a petition for enforcement and attorney fees. A hearing was conducted on July 25, 2007. James Small testified and maintains that he never gave Adams authority to enter into any agreement and, further, that the right-of-way agreement that Reed seeks to enforce has additions to the proposal set forth by Adams in his December 4, 2006, letter to Godfrey. Reed maintains that the right-of-way agreement she signed conforms to the Adams’ proposal of December 4 with the minor change that requires the Smalls -4- 04-6390 CIVIL TERM to provide Reed written notice 30 days in advance of removing any lumber from their property. Thus, Reed argues that there is an enforceable agreement. Actually, there are two changes in the right-of-way agreement signed by Reed that were not part of the suggestions in Adams’ letter of December 4, 2006, to Godfrey. One change is the 30 days advance notice requirement for the Smalls to give Reed prior to removing any lumber from their land. The other is that Adams’ proposal to not allow the right-of-way to be used “for any future residential developments or neighborhoods” on the Smalls’ land was changed by Godfrey to further restrict its use for any “future homes” on the Smalls’ land. A future home or several homes is something different from a future residential development or future neighborhood, otherwise Godfrey would not have added it to Adams’ proposal. James Small testified that he is not willing to have to give notice to Reed of any intention to remove any lumber from his land, and, although he does not plan to build a home on his land, he does not want to restrict the right-of-way so that it would prevent his heirs or any future owner from doing so. -5- 04-6390 CIVIL TERM In Pennsylvania an attorney may only bind a client to the terms of a settlement Reutzel v. Douglas agreement based on express authority., 870 A.2d 787 (Pa. 2005). We find that James Small never gave Adams express authority to bind him to the right- of-way agreement that Godfrey sent to Adams on March 2, 2007, and which Reed seeks to enforce. According, the following order is entered. ORDER OF COURT AND NOW, this day of August, 2007, the motion of defendant to IS DENIED. enforce a right-of-way agreement and settlement agreement, By the Court, Edgar B. Bayley, J. H. Anthony Adams, Esquire For Plaintiffs E. Ralph Godfrey, Esquire For Defendant :sal -6- JAMES B. SMALL, SR. AND : IN THE COURT OF COMMON PLEAS OF BARBARA H. SMALL, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : KIMBERLY M. REED, : DEFENDANT : 04-6390 CIVIL TERM IN RE: MOTION OF DEFENDANT TO ENFORCEMENT SETTLEMENT BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this day of August, 2007, the motion of defendant to IS DENIED. enforce a right-of-way agreement and settlement agreement, By the Court, Edgar B. Bayley, J. H. Anthony Adams, Esquire For Plaintiffs E. Ralph Godfrey, Esquire For Defendant :sal