Groff v. Kohler

MATTHEWS, Justice,

joined by RABINOWITZ, Justice, dissenting.1

For the reasons that follow I conclude that the superior court clearly erred in finding that there was no mutual mistake.

I begin with the earnest money agreements (EMA’s). Both EMA’s contained language specifying that “[djriveways are a common area” for the buildings on the Groffs’ property. Both parties signed both EMA’s, and Anna Groff apparently read both EMA’s aloud to Kohler before he signed them. Kohler testified at trial that easements did not particularly concern him during the term of his lease, and that when he signed the second EMA he did not fully understand the “common driveways” language.2 Nevertheless, he later testified that *876he understood the language to mean “that everybody can use every driveway or something like that.”

Kohler argues, and the trial court apparently agreed, that he could not have understood the need for an easement over the driveway along the eastern edge of Lots One and Two because he mistakenly thought that the parking spaces to the west of the planter box were contained within those lots, which he later bought. The logic of .this escapes me. Kohler never contradicted the testimony that the spaces by the planter box were dedicated to 911 Cushman, and he admitted that he was told that he could use the spaces for “overflow” parking. Even if he had owned the property up to the planter box, then, he had to know that the parking spaces to the west of the planter box were dedicated to 911 Cushman, and that cars parked there could exit only onto Ninth Avenue. The ownership of the land on which the parking spaces were located does not affect the existence of an easement over the driveway.

I next look to the deed. The deed was prepared by TransAlaska, which was apparently chosen to act as closing agent by the bank through which Kohler obtained financing. At the time of the transaction, Bill Standard was the office manager for Trans-Alaska. He testified that the deed’s description of the easements was taken from the earnest money agreement, and that “through clerical error, there was an easement left off of the subject Lot One.”

Finally, and most importantly, I consider the physical characteristics of the area itself. Kohler was aware of the orientation of the parking spaces abutting the planter box and was aware that cars in those spaces had to back out and exit onto Ninth Avenue. Koh-ler never testified that there were no arrows indicating the traffic flow, and never contradicted Anna Groffs testimony regarding directional arrows and zoning restrictions.3 While he testified that some cars exited onto Cushman Street from Lot Four, and Anna Groff also testified that cars “occasionally go against” the arrows, there is no evidence to contradict the Groffs’ claim of traffic restrictions for use of the curb cuts or the testimony that the cars parked at the planter box could only exit at Ninth Avenue.

All of the evidence points to a mistake in the preparation of the deed by TransAlaska following an agreement between the Groffs and Kohler to convey the property subject to an easement on the eastern ten feet of Lots One and Two. Kohler himself never actually testified that there was not a mistake. He may not have initiated the reservation of the easement, and he may not have wanted the easement; but when he agreed to purchase the property, he agreed to purchase it subject to the easement. The deed failed to reflect that agreement only by mistake of the title company.

I conclude that the trial court’s determination that Kohler did not intend for there to be an easement over the driveway leading to Ninth Avenue on Lots One and Two at the time he purchased the property from the Groffs was clearly erroneous, and that the Groffs were entitled to reformation of the deed.

*877APPENDIX A

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. To facilitate the reader’s understanding of this case, I have attached as Appendix A a diagram of the property involved.

. He testified:

What I recall is it said something like driveways are common. And ... I’m not familiar with what that means.... I know what an easement is.... I’m familiar with the term of a utility easement or a natural gas easement or this type of thing, but I don’t know what "driveways are common” means.

Kohler testified that he understood the meaning of "an easement for ingress and egress over, across, and upon the common drive as it exists *876on Lots 2 and 3, Block 109,” but did not understand the meaning of ‘‘driveways are a common area for 901 and 911 Cushman."

. Kohler testified that he could not recall "seeing a bunch of arrows” but he mentioned "the possibility of a line on the Cushman Street” driveway showing the direction of traffic.