Citation: Tsavos v. Lewis, 2013 NSSC 43
Date: 20130201
Docket: Hfx No. 318305
Registry: Halifax
Between:
Louis Tsavos
Plaintiff/
Defendant by Counterclaim
v.
Graham Lewis and Josephine Lewis
Defendants/
Plaintiffs by Counterclaim
Judge: The Honourable Justice M. Heather Robertson
Heard: October 2, 2012 and January 23, 2013, in Halifax, Nova Scotia
Written Decision: February 1, 2013
Counsel: Jeffrey P. Flinn, for the plaintiff/defendant by counterclaim (October 2, 2012)
Daniel Walker and Jonathan Hooper, for the plaintiff/defendant by counterclaim (January 23, 2013)
Graham Lewis and Josephine Lewis, self-represented defendants/plaintiffs by counterclaim
Robertson, J.:
[1] The defendant, Louis Tsavos, seeks an order to confirm and enforce the terms of the settlement agreement reached between the parties, by terms agreed to by their legal counsel following a settlement conference held on June 4, 2012, along with costs and disbursements for the motion.
[2] In a brief submitted to the Court by his then counsel Mr. Jeffrey P. Flinn, the litigation history was succinctly summarized.
Litigation History
1. The Plaintiffs, George Vassilakis (“George”) and Louis Tsavos (“Louis”), commenced a legal action against their neighbour’s, Graham Lewis and Josephine Lewis on October 15, 2009.
2. The Defendants, Graham Lewis and Josephine Lewis (the “Lewises”), filed a Defence and Counterclaim on November 19, 2009.
3. George and Louis filed a Defence to Counterclaim on January 29, 2010.
4. George and Louis filed a motion on August 4th, 2010 seeking an interlocutory mandatory injunction and an interlocutory restraining injunction to compel the Lewises to forthwith remove all obstruction, all debris placed on the right-of-way that George and Louis’ property located at 148 Melrose Avenue, Halifax, Nova Scotia, has over the Lewises’ property located at 144/146 Melrose Avenue, Halifax, Nova Scotia.
5. On October 28, 2010, the Honourable Justice Haliburton granted an order for the before mentioned interlocutory mandatory injunction and interlocutory restraining injunction. Justice Haliburton directed that costs for said motion are to be addressed at the Trial.
6. On November 23, 2010, George and Louis filed a motion seeking an order for permission to make a motion for a contempt order against the Lewises.
7. On or about November 30, 2010, the Lewises removed the obstructions placed on the right-of-way and George and Louis withdrew their motion seeking an order for permission to make a motion for a contempt order against the Lewises, scheduled to be heard on December 1, 2010.
8. On January 13, 2011, the Honourable Justice Rosinski granted an order for costs payable in the cause for $576.08 in favour of George and Louis against the Lewises in relation to George and Louis’ motion seeking an order for permission to make a motion for a contempt order against the Lewises.
9. On April 11, 2011 the Honourable Suzanne M. Hood granted an order to compel the Lewises to provide George and Louis with the Lewises’ Affidavit Disclosing Documents and Affidavit Disclosing Electronic Information.
10. On January 12, 2012, a Request for a Date Assignment Conference was filed on behalf of George and Louis.
11. On April 27, 2012, a Date Assignment Conference took place. The Honourable Justice Gerald R.P. Moir was notified that George passed away and counsel for the parties agreed that George would be removed as a party in the proceedings.
12. Trial Dates were set for September 24, 25, 26, 2012. An Ordinary Settlement Conference was also scheduled for Monday, June 4, 2012, from 2:00 PM to 4:30 PM.
BACKGROUND
1. Louis Tsavos and George Vassilakis purchased their property at 148 Melrose Avenue in 1986 (the Tsavos’ property). It was a three-unit apartment building, one unit per level. PID #00237131
2. The Vassilakis family, George and Hariklia, lived on the top story. Louis and his wife, Litson Tsavos, lived in the middle unit, and the bottom unit was rented out.
3. The Lewises, Graham and Josephine, purchased the 144-46 Melrose Avenue (the Lewis’ property), the home next door in 1982. PIK#00239149.
4. The warranty deed dated September 28, 1986, by which Tsavos and Vassilakis acquired their property, contained a right-of-way over the Lewis’ property, in favour of them. The right-of-way provides as follows:
TOGETHER WITH a right-of-ways for the said Grantee, his heirs and assigns and his and their agents, servants, tenants and workmen, a free and uninterrupted right-of-way at all hours of the day and night for all purposes appurtenant to the said Lot 586A for persons, animals and vehicles to and from the said Melrose Avenue through, along and over that certain lot of land which is more particularly described as follows:
ALL that certain lot or parcel of land lying between Lot 586A and 587 and which is more particularly described as follows:
BEGINNING at the southern boundary line of Melrose Avenue at the northeast angle of Lot 586A as shown on the plan;
THENCE southerly along the several courses of the west side line of Lot 587A One hundred and Forty-seven point five (147.5') feet, more or less, to the south east corner of Lot 586A as shown on the plant;
THENCE proceeding northwardly along the former eastern lotline of Lot 586 as shown on said plan to the place of beginning.
[3] This right-of-way is also set out in the warranty deed of the Lewis’ property. It reads as follows:
EXCEPTING AND RESERVING for the use and benefit of the owners and occupants from time to time of the buildings situate on Lots 586A of Right-of-way for themselves, their servants or agents at anytime of the night or day, over, along and upon that certain lot of land which is more particularly described as follows:
ALL that certain lot or parcel of land lying between Lot 586A and 587 and which is more particularly described as follows:
BEGINNING at the southern boundary line of Melrose Avenue in the Northeast angle of Lot 586A as shown on said plan;
THENCE southerly along the several courses of the West side line of Lot 587A One Hundred and Forty-seven point five (174.5') feet, more or less, to the Southeast corner of Lot 586A as shown on said plan;
THENCE proceeding Northwardly along the former Eastern lot line of Lot 586 as shown on said plan to the place of beginning.
[4] These warranty deeds and rights-of way are contained as exhibits 1A and 1B of the affidavit of Jeffrey P. Flinn dated September 14, 2012 and filed with the Court on September 17, 2012, in support of this motion. Photographs of the rights-of-way are also contained therein as an attachment to exhibit 3.
[5] It should be noted that the right-of-way runs along the Tsavos’ driveway and the Lewis’ house, and that the Lewis’ driveway is on the other side of their property. The Tsavos’ property is now for sale. In the early days, as neighbours, the families got along.
[6] In and around 1987 the Tsavoses wanted to pave their own driveway and asked the Lewises if they could at the same time, pave the right-of-way, the narrow strip of land running along their driveway, beside the Lewis’ house. The Lewises agreed.
[7] The Tsavoses also agreed to allow the Lewises to use their driveway and the right-of-way to access the Lewis’ backyard. Construction materials for an extension on the Lewis’ home were delivered, gardening chores completed, and repairs to a fence and garage were accessed on the Lewis’ property, by use of the Tsavos’ driveway and right-of-way.
[8] Differences arose between the families sometime later and the Tsavoses withdrew permission for Graham Lewis to use their driveway.
[9] The Tsavoses claimed the Lewises refused them the use of the right-of-way. Its use was important to the Travos and Vassilakis’ families and their tenant in jockeying automobiles in the driveway and to access the rear of their own property.
[10] The Lewises also claimed the Tsavos’ driveway, once paved, dumped water on their property. The Lewises took up the pavement.
[11] The Tsavoses claimed the Lewises obstructed the right-of-way to make their access to their own parking areas difficult.
[12] Relations between these homeowners deteriorated and the police were called more than ten times respecting these property disputes.
[13] Threats and physical altercations are also alleged to have occurred.
[14] It all culminated in the lawsuits before the Court.
[15] The parties however, through counsel, requested a settlement conference scheduled for June 4, 2012 to attempt to resolve this matter before the scheduled September trial.
[16] Mr. Flinn has described the settlement proceeding in his affidavit. It is an accurate account of the proceeding. He, of course, was not present while I caucused with Mr. Church, solicitor for the Lewises, and his clients, the Lewises.
[17] In that meeting, I discussed the possible alternatives that could result in an early resolution of the dispute and cautioned the Lewises that if a settlement was arrived at, they could not interfere in any way with the use of the right-of-way by the Tsavos’ property residents in the future.
[18] Given the acrimony that had developed over the years and, in particular, as a trial judge of this Court had issued an injunction against the Lewises, I cautioned them of the risks of losing at trial and the resulting order for costs and damages that might ensue against them.
[19] The Lewises agreed to settle the matter by a payment of $7000 as described in Mr. Flinn’s affidavit. Three thousand dollars would contribute to the Tsavos’ plan to repair the driveway and the right-of-way, with the installation of a curb nearest the Lewis’ property, to protect the Lewis’ house against accumulated rain water. The balance of $4000 was a contribution to the plaintiff Tsavos’ costs.
[20] Counsel for the parties drafted the document that reflected these agreed terms and conditions.
[21] Mr. Flinn’s affidavit chronicles the activity after the June 4th settlement conference, as he and his clients prepared to carry out the work agreed to. He says that on Friday, June 15, 2012, Brian Church called him explaining that his clients now refused to sign the settlement agreement.
[22] On July 23, 2012, I agreed to meet with counsel, Mr. Flinn, Mr. Church and the Lewises, as Mr. Church was of the view a further meeting might be helpful. It was not. The Lewises dismissed Mr. Church as counsel following this meeting. I explained to the Lewises the recourse open to Mr. Tsavos, for the enforcement of the settlement agreement pursuant to Civil Procedure Rule 10.04.
[23] I explained that it was appropriate for me to hear the motion as set out in Rule 10.04.
[24] The motion for enforcement of the settlement agreement was filed on July 27, 2012 along with the draft order (Mr. Flinn’s affidavit exhibit 5).
[25] The motion was scheduled to be heard on October 2, 2012. A pre-hearing memorandum and Mr. Flinn’s affidavit had been filed on September 14, 2012.
[26] At the October 2 hearing, Mrs. Lewis informed the Court that she had reached a settlement relating to the right-of-way in dispute with Hariklia Vassilakis, a co-owner of 148 Melrose Avenue with the plaintiff, Louis Tsavos.
[27] Mr. Flinn informed the Court that he was not aware of any such settlement. I adjourned the motion and requested Mr. Flinn obtain an affidavit from Ms. Vassilakis to clarify if any such collateral settlement could have been made.
[28] Mrs. Vassilakis’ affidavit is now before this Court. It is dated November 27, 2012 and was filed January 8, 2013, along with a memorandum of Mr. Tsavos’ current legal counsel, Daniel Walker and Jonathan Hooper, who appeared on this adjourned motion to enforce the settlement agreement.
[29] Mrs. Vassilakis was cross-examined by Mrs. Lewis on the motion as to whether she agreed the Lewises could have the narrow right-a-way strip paved by their own contractor at their own expense in full resolution of the litigation.
[30] Mrs. Vassilakis, who speaks English haltingly, but who can be understood, explained to the Court that after her husband’s death, she wanted to return to Greece and live there permanently. She was anxious to have the house sold. She has spent much of her time in Greece since her husband’s death, but also resides at Melrose Avenue, awaiting the sale of the property.
[31] Both in her affidavit and her testimony, Mrs. Vassilakis made it clear that she had not made a settlement with the Lewises, although she did want the dispute over as she did not want it to interfere with the sale of the property. She emphasized she told Mrs. Lewis she could not sign anything without talking to Mr. Tsavos and her lawyer.
[32] In argument on the motion, Mrs. Lewis agreed that Mr. Church had been their counsel, engaged by them to defend the Tsavos’ suit and file the counter-claim on their behalf.
[33] She agreed Mr. Church had authority to represent her and her husband; however, she felt she was not well served by Mr. Church in the settlement conference and the days following, and decided to refuse to sign the settlement agreement.
[34] In particular, Mrs. Lewis asserts she and her husband have done no wrong. They own the right-of-way. They decided to pave the right-of-way in late October 2012 after speaking with Mrs. Vassilakis, and feel that this is the extent of their responsibility. The matter should now be at an end and the defendant’s motion dismissed. In particular, they are upset by the term of the agreement requiring them to pay costs to Mr. Tsavos.
[35] Respectfully, I disagree. Mr. Flinn’s motion is properly before the Court. Mr. Tsavos is now represented by Messrs. Walker and Hooper, who now advance the motion.
[36] Having heard from counsel for Mr. Tsavos and Mr. and Mrs Lewis in argument on the motion, I am of the view that the agreement achieved between the parties on June 4, 2012, as reduced to writing by counsel following the meeting, was a full resolution of the litigation and that the enforcement of the agreement pursuant to Rule 10.04(3)(c) is the only appropriate course of action.
[37] Rule 10.04 governs the enforcement of a settlement agreement:
10.04 (1)A party who alleges that, after a proceeding was started, the parties reached agreement for settlement of the proceeding or of a claim in the proceeding may make a motion for an order giving effect to the agreement.
(2) The judge who hears the motion may do any of the following:
(a) declare that an agreement was, or was not, made and is, or is not, enforceable;
(b) declare the terms of an agreement;
(c) grant an order enforcing an agreement according to its terms;
(d) order a trial under Rule 4 ‑ Action or a hearing under Rule 5 ‑ Application and give directions about the issues to be determined.
(3) A motion under this Rule 10.04 in which it is alleged that an agreement was made in thepresence of a settlement conference judge must be heard by the settlement conference judge, unless the judge directs otherwise.
(4) The settlement conference judge may take into account the judge’s own knowledge of what took place at the conference, as well as the evidence presented by the parties.
(5) A judge may grant an order enforcing a mediated agreement or an arbitration award disposing of a claim in a proceeding, if both of the following apply:
(a) after the proceeding was started, the parties agreed to submit the claim to mediation or arbitration;
(b) either the mediated agreement or the award disposes of all claims in the proceeding or the claim is severed under Rule 37 ‑Consolidation and Separation and the award or mediated agreement disposes of the claim.
[38] This Court has previously issued an order pursuant to Rule 10.04 (2)(c), is found in Langthorne v. Humphreys, 2011 NSSC 44, where similarly a party refused to sign a release pursuant to the terms of a settlement agreement, and also discharged their legal counsel.
[39] Having presided over this settlement conference, it is very clear that there was no issue concerning Mr. Church’s actual authority to represent the Lewises in the negotiation and preparation of the written agreement, which accurately reflected the terms of the agreement achieved on June 4, 2012.
[40] The Lewises changed their mind and refused to honour the agreement achieved. They, then acted unilaterally in paving the strip of land over which the Tsavos’ property has the right-of-way and now feel the litigation should simply be at an end. Unfortunately, that is not the case.
[41] Mr. Tsavos lost the opportunity to have a trial in September 2012, because a settlement had been achieved. The motion scheduled to be heard on October 2, 2012 had already been adjourned once at the request of the Lewises. The current motion is before the Court, as the Tsavos’ family have the property under an agreement of sale and wish a full resolution of this litigation before closing.
[42] The motion is granted. I will sign the proposed order for enforcement of the terms of the agreement. The plaintiff, Tsavos, is awarded costs in the amount of $750 on this motion, payable forthwith.
Justice M. Heather Robertson