Broadcasts.com - "June 2019 - Robinson Trustee etc v Nordquist et al" (Oral Arguments of the Supreme Court of Virginia)

Published: June 26, 2019, 7:51 p.m.

This podcast is provided by Ben Glass and Steve Emmert

Granted Appeal Summary

Case

JANE WASHBURN ROBINSON, TRUSTEE FOR THE JANE WASHBURN ROBINSON LIVING TRUST v. NELS P. NORDQUIST, ET AL. (Record Number 180631)

From

The Circuit Court of the City of Alexandria; L. Kemler, Judge.

Counsel

Thomas F. Urban, II (Law Office of Urban & Falk, PLLC) and Mikhael D. Charnoff (Perry Charnoff PLLC) for appellant.

John D. McGavin and Dawn E. Boyce (Bancroft, McGavin, Horvath & Judkins, P.C.) for appellees.

Assignments of Error

The trial court erroneously granted Defendants’ Plea in Bar on the basis of improper factual findings that Plaintiff’s Trespass and Nuisance claims were “continuous” rather than “intermittent” and thus barred by the applicable statute of limitations despite admissions by Defendants and independent evidence that the trespass and nuisance did not occur each year during the winter months when a sprinkler system was turned off, as well as when Defendants did not use other watering methods, which are actions within the Defendants’ control.

The trial court erred when it denied Plaintiff’s motion for leave to amend her Trespass and Nuisance claims to properly reflect the evidence adduced during discovery and reflected in attachments to Defendants’ Plea Brief.

The trial court erred when it granted Defendants’ Demurrer, holding that the 1960 Deed of Bargain and Sale and Easement’s “perpetual easement” to the owner of 404 Duke Street and its successors “to keep and maintain openings on the west side of the premises: 404 Duke Street overlooking the premises 406-8 Duke Street, for the purpose of admitting light and air through said openings,” was “vague,” “ambiguous,” and therefore, “unenforceable,” which circumvented and ignored the intent of the drafters to protect the access of Plaintiff’s property to light and air for Plaintiff’s openings.

The trial court erred when it held that the provision in a 1969 Deed of Indenture that created a “3-foot strip of land (herein called the Median)” that “shall forever be and remain open and free of all buildings and structures . . . except as aforesaid the same shall be and remain open yard, the right so secured hereby to be appurtenant to 404 [Duke] and enjoyed by [the owner of 404 Duke]” only protected the Median’s “open yard” from a certain class of items in a narrow definition of “buildings” and “structures,” but allowed all other types of obstructions to be placed within the defined Median, thus circumventing and ignoring the intent of the Indenture’s drafters.

The trial court erred by refusing to issue a Rule to Show Cause and by entering an order restricting Plaintiff’s access to the openings on the west side of Plaintiff’s properties despite the 1960 “perpetual easement” allowing the owner of 404 Duke Street and 303 S. Royal St. (Plaintiff) access to enter the yard of 406 Duke Street “to keep and maintain openings on the west side of 404 overlooking 406-8 [Duke St.]” without any such restrictions.