Opinion
SUPERIOR COURT CIVIL ACTION Docket No. RE-12-392
05-09-2014
CEDAR BEACH/CEDAR ISLAND SUPPORTERS, INC., et al., Plaintiffs v. CHARLES H. ABRAHAMSON, et al., Defendants and WELLS FARGO BANK, N.A., Party-in-Interest
STATE OF MAINE
CUMBERLAND, ss
ORDER ON DEFENDANT GABLES'S MOTION FOR SUMMARY JUDGMENT
Before the Court is defendant Gables's motion for summary judgment. Gables makes two related arguments: (1) plaintiffs lack standing to sue on behalf of the general public; and (2) even if plaintiffs had standing to sue at the commencement of litigation, their claim is moot based on the settlement of a companion case that excludes the general public from using Cedar Beach. For the following reasons, the motion is denied.
BACKGROUND
In their amended complaint, plaintiffs seek a declaratory judgment that the public has acquired a right to use Cedar Beach Road on Bailey Island in Harpswell, Maine by prescription (count I) or custom (count II). Plaintiffs include Cedar Beach/Cedar Island Supporters, Inc., an entity "made up of members of the public who have previously enjoyed passage to Cedar Beach and Cedar Island by way of Cedar Beach Road, whose passage over Cedar Beach Road has recently been denied, and who are of the opinion and belief that they have a right to the continued use of Cedar Beach Road." (Am. Compl. ¶ 1; Pls.' Add. S.M.F. ¶ 1.) Plaintiffs also include several individuals who "previously enjoyed regular passage to Cedar Beach and Cedar Island by way of Cedar Beach Road." (Am. Compl. ¶¶ 3-5, 7-8.) Some of the plaintiffs in this case were also plaintiffs in a related case, Cedar Beach/Cedar Island Supporters, Inc. v. Aspatore, Cumberland Superior Court Docket No. CV-2013-344. (Supp. S.M.F. ¶ 5; Opp. S.M.F. ¶ 5.)
Easement by custom has never been recognized as a viable cause of action in Maine. See Almeder v. Town of Kennebunkport, 2014 ME 12, ¶ 34, ___ A.3d ___.
The Aspatore case has settled. (Gables S.M.F. ¶ 8.) The settlement agreement was conditioned on the acceptance of a public access easement on the Aspatore land by the Town of Harpswell, which has since been effected. (Gables S.M.F. ¶¶ 9-10.) Under the settlement agreement, as reflected in the proposed deed, the Aspatore defendants are required to deed an easement "for the benefit of the Inhabitants of the Town of Harpswell." (Gables S.M.F. ¶ 11.) The terms of the settlement agreement, as reflected in the proposed deed, also specify that use of the easement area is "limited to the Town, Town residents and their guests and Town non-resident taxpayers and their guests (meaning to include bed and breakfast guests and motel guests)." (Gables S.M.F. ¶ 12.) The Town is required to develop and implement a mechanism to reasonably ensure use of the easement area by authorized users only." (Pls.' Opp. S.M.F. ¶ 15.)
PROCEDURAL HISTORY
On October 24, 2012, plaintiffs filed their complaint. An amended complaint was filed on April 3, 2013. Defendants Abrahamsons and Gables raised the affirmative defense of standing in their answers. Defendant Gables filed a motion for leave to file a motion for summary judgment, which was granted on April 11, 2014. Plaintiffs' motion for leave to file a surreply in opposition to the defendant motion for summary judgment was granted on 5/7/14.
DISCUSSION
Gables argues both standing and mootness in its motion for summary judgment. "Standing and mootness are closely related concepts describing conditions of justiciability." Madore v. Maine Land Use Regulation Comm'n, 1998 ME 178, ¶ 8, 715 A.2d 157. "Standing to sue means that the party, at the commencement of the litigation, has sufficient personal stake in the controversy to obtain judicial resolution of that controversy." Halfway House, Inc. v. City of Portland, 670 A.2d 1377, 1379 (Me. 1996). "When a party initially holds the requisite personal interest, but is later divested of that interest" the doctrine of mootness applies. Madore, 1998 ME 178, ¶ 8, 715 A.2d 157. In deciding these issues on a motion for summary judgment, the court views the facts "in the light most favorable to the plaintiffs as the nonmoving party." Lougee Conservancy v. CitiMortgage, Inc., 2012 ME 103, ¶ 2, 48 A.3d 774.
1. Standing
"Whether a party has standing to bring a claim is a jurisdictional question." North East Ins. Co. v. Young, 2011 ME 89, ¶ 11, 26 A.3d 794. As the Law Court has explained:
Litigants normally may not assert the rights of third parties but must demonstrate that they have received some particularized injury in order to have standing to raise their claim. A person has suffered a particularized injury when the other party's actions have adversely and directly affected that party's property, pecuniary or personal rights.Id. (internal citations and quotations omitted).
The Law Court has never explicitly addressed whether an individual or private entity has standing to bring a claim for a public prescriptive easement. See Lyons v. Baptist Sch. of Christian Training, 2002 ME 137, ¶ 22 n.5, 804 A.2d 364. Without ruling on standing, the Lyons court noted:
"(1) a public easement could be asserted by an individual as a defense to a trespass action, and (2) a declaratory judgment action, M.R. Civ. P. 57, would appear to be available to private individuals and entities where they have been barred from access to ways on lands that they previously used and, in good faith, believe they can continue to use due to a private or public prescriptive easement."Id. In several cases, the Law Court has ruled on the merits of a claim by a private individual for a public prescriptive easement without addressing standing. Id. ¶¶ 26-31; Shadan v. Town of Skowhegan, 1997 ME 187, ¶¶ 6-7, 700 A.2d 245; S.D. Warren Co. v. Vernon, 1997 ME 161, ¶ 17, 697 A.2d 1280.
Gables's argument proceeds from the premise that plaintiffs must represent the general public to bring a declaratory judgment seeking a public prescriptive easement. To have standing, plaintiffs must allege that they have suffered a particularized injury different from that incurred by the general public. Buck v. Town of Yarmouth, 402 A.2d 860, 861 (Me. 1979). At trial, plaintiffs must show "use by people who are 'not separable from the public generally.'" S.D. Warren Co., 1997 ME 161, ¶ 17, 697 A.2d 1280 (quoting Inhabitants of the Town of Kennebunkport v. Forrester, 391 A.2d 831, 833 n.2 (Me. 1978)); see also Stickney v. City of Saco, 2001 ME 69, ¶ 18, 770 A.2d 592 ("[T]he test of a public use is the use of the road by people who are inseparable from the public generally . . . ."). Plaintiffs are not required to raise an issue of fact regarding this element of their case at this stage to survive a motion for summary judgment with regard to standing.
The plaintiffs in this case have raised an issue of fact regarding standing. They allege that they have used Cedar Beach Road to access the beach, that use has recently been denied, and they believe they have the right to continued use of the road. (Am. Compl. ¶¶ 15, 6-9,13; Pls.' Add. S.M.F. ¶ 1.) Because plaintiffs have alleged an injury distinct from that of the general public, they have raised an issue of fact regarding standing to bring a claim for a public prescriptive easement.
2. Mootness
Gables next argues that, even if plaintiffs had standing at the commencement of the suit, their claim is now moot because of the settlement in the Aspatore case. The test for mootness is "whether there remain sufficient practical effects flowing from the resolution of the litigation to justify the application of limited judicial resources." Halfway House, Inc., 670 A.2d at 1380 (quoting Employee Relations v. Labor Relations Bd., 655 A.2d 326, 327-28 (Me. 1995)). A case is moot "if the passage of time and the occurrence of events deprive the litigant of an ongoing stake in the controversy although the case raised a justiciable controversy at the time the complaint was filed." Halfway House, Inc., 670 A.2d at 1379-80 (emphasis added).
In spite of the settlement in the Aspatore case, plaintiffs have raised an issue of fact regarding their having an ongoing stake in the controversy. If they prevail in this case, plaintiffs will be able to use Cedar Beach Road to access and use the beach as provided by the settlement agreement in the Aspatore case. The fact that the general public may be precluded from using the beach does not render plaintiffs' claim moot.
The entry is
Defendant Gables's Motion for Summary Judgment is DENIED. Date: May 9, 2014
/s/_________
Nancy Mills
Justice, Superior Court
DAVID BERTONI ESQ
ANN TORREGROSSA ESQ
BRANN & ISAACSON
PO BOX 3070
LEWISTON ME 04243-303
RICHARD ABBONDANZA ESQ
GERALD SCHOFIELD JR ESQ
HOPKINSON & ABBONDANZA
511 CONGRESS ST
SUITE 801
PORTLAND ME 04101
CHRISTIAN CHANDLER ESQ
CURTIS THAXTER
PO BOX 7320
PORTLAND ME 04112-7320
ORDER ON PLAINTIFFS AND DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Before the court is plaintiffs' motion for partial summary judgment. Plaintiffs argue defendants cannot raise a genuine issue of material fact regarding whether a notice posted in 1962 on property now owned by the Abrahamson defendants prevented the public from acquiring an easement by prescription over a portion of Cedar Beach Road on Bailey Island in Harpswell, Maine. Plaintiffs ask for a ruling that the 1962 notice does not apply to the Cedar Beach Road. Defendants ask for a ruling that the notice does apply to Cedar Beach Road. For the following reasons, the motions are denied.
BACKGROUND
In their amended complaint, plaintiffs seek a declaratory judgment that the public has acquired a right to use Cedar Beach Road on Bailey Island by prescription, count I, or custom, count II. In defendants' answers, the 1962 notice is raised as an affirmative defense to the acquisition of a prescriptive easement.
In 1957, Julia Sturtevant and Meredith Starbranch acquired a cottage and all the land surrounding the cottage and adjoining Cedar Beach Road on Bailey Island. (Supp. S.M.F. ¶¶ 1-2.) In 1961, Ms. Sturtevant and Ms. Starbranch acquired Cedar Beach Road; the deeds contain the language, "subject to the rights of others in common to use said Beach Road as a right of way." (Supp. S.M.F. ¶¶ 8-11.) On December 27, 1961, Ms. Sturtevant and Ms. Starbranch conveyed a portion of their land and a right of way over Cedar Beach Road to Margaret E. Seamans. (Supp. S.M.F. ¶¶ 12-13.) Ms. Sturtevant and Ms. Starbranch retained a 2.71 acre parcel, referred to as the "Ridge Lot" in the Seamans deed. (Supp. S.M.F. ¶ 14.) The deed to Ms. Seamans contained language that the grantors reserved rights to connect utilities, "to two houses on the Ridge Lot, the area retained by the Grantors, and buy water service . . . if at any time in the future houses are built on said retained area which consists of 2 ¾ acres on the eastern shore of Fresh Water Cove." (Supp. S.M.F. ¶ 15.) The deed also contained language that referred to Cedar Beach Road as a parcel separate from the Ridge Lot. (Supp. S.M.F. ¶ 16.)
In September 1962, Ms. Starbranch posted a "Notice to Prevent Acquisition of Right of Way or Easement" on her property and filed the notice in the Cumberland County Registry of Deeds. (Supp. S.M.F. ¶ 19.) In her affidavit, Ms. Starbranch states she posted notices, "to prevent acquisition of a right-of- way or other easement in or over her land in conspicuous places upon her land commonly known as the 'Ridge' property, that being the lot of approximately 2 3/4 acres on the shore of Fresh Water Cove." (Supp. S.M.F. ¶ 20; Abrahamson Opp. S.M.F. ¶ 20; Gables Opp. S.M.F. ¶ 20.) She also refers in her affidavit to two photographs. (Abrahamson & Gables Add. S.M.F. ¶ 34; Pls.' S.M.F. ¶ 19, Eisenstein Aff. Ex. G.) There was a chain across Cedar beach Road connecting two posts during the 1962 notice period. (Abrahamsons & Gables's Add. S.M.F ¶¶ 35, 38.)
Defendants dispute whether the notice was posted solely for the Ridge lot but do not dispute that Ms. Starbranch posted a notice on her property. (Abrahamsons' Opp. S.M.F. ¶ 19; Gables's Opp. ¶ 19.)
PROCEDURAL HISTORY
On October 24, 2012, plaintiffs filed their complaint, which they amended on April 3, 2013. Defendant Gables, LLC filed a motion to intervene, which was granted on April 8, 2013. Plaintiffs filed their motion for partial summary judgment on December 5, 2013. Defendant Gables and defendants Abrahamsons filed separate oppositions to plaintiffs' motion for summary judgment. On April 11, 2014, the Court granted defendant Gables's motion to supplement the summary judgment record with the affidavit of Harry Starbranch, the son of Meredith Starbranch.
Defendant Gables owns a deeded easement over Cedar Beach Road. (Gables's Add. S.M.F. ¶ 46.)
DISCUSSION
1. Standard of Review
Under Rule 56, a party may move for summary judgment on a claim "or any part thereof." M.R. Civ. P. 56(a). "Summary judgment is appropriate when there is no genuine issue of material fact that is in dispute and, at trial, the parties would be entitled to judgment as a matter of law." Fitzgerald v. Hutchins, 2009 ME 115, ¶ 9, 983 A.2d 382 (citing Dyer v. Dep't of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821). "An issue is genuine if there is sufficient evidence supporting the claimed factual dispute to require a choice between the differing versions; an issue is material if it could potentially affect the outcome of the matter." Brown Dev. Corp. v. Hemond, 2008 ME 146, ¶ 10, 956 A.2d 104 (citing Univ. of Me. Found, v. Fleet Bank of Me., 2003 ME 20, ¶ 20, 817 A.2d 871).
Defendants "bear the burden of making a prima facie showing of each element of" their defense. Rutland v. Mullen, 2002 ME 98, ¶ 8, 798 A.2d 1104; see also Martinez-Rodriguez v. Guevara, 597 F.3d 414, 419 (1st Cir. 2010) ("With respect to each issue on which the nonmoving party has the burden of proof at trial, that party must 'present definite, competent evidence to rebut the motion.'") To avoid summary judgment, the non-moving party cannot rely "merely upon conclusory allegations, improbable inferences, and unsupported speculation." Dyer, 2008 ME 106, ¶ 14, 951 A.2d 821 (quoting Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir. 2007)).
2. 1962 Notice
By statute, a landowner may prevent others from acquiring rights through adverse use by posting a notice as follows:
If a person apprehends that a right-of-way or other easement in or over his land may be acquired by custom, use or otherwise by any person, class of persons or the public, he may give public notice of his intention to prevent the acquisition of such easement by causing a copy of such notice to be posted in some conspicuous place upon the premises for 6 successive days . . . . A certificate by an officer qualified to serve civil process that such copy has been served or posted by him as provided, if made upon original notice and recorded with it, within 3 months after the service or posting in the registry of deeds for the county or district in which the land lies, shall be conclusive evidence of such service or posting.14 M.R.S. § 812 (2013). In this case, there is no "certificate by an officer qualified to serve civil process," which would be "conclusive evidence" of posting. (Supp. S.M.F. ¶ 20.) Accordingly, defendants must raise a genuine issue of material fact that the 1962 notice was "posted in some conspicuous place upon the premises for 6 successive days" to avoid summary judgment. 14 M.R.S. § 812.
The operative law in 1962 was identical to current law. R.S. ch. 174, § 12 (1954). The current statute is cited in this order for convenience.
Plaintiffs argue the evidence shows Cedar Beach Road and the Ridge lot are separate parcels. They argue that, because the 1962 notice refers only to the Ridge lot, the notice did not prevent the public from acquiring rights over Cedar Beach Road. Plaintiffs support this argument by stating the Road lot and the Ridge lot, if taken together, would constitute approximately 3 acres. The notice references a 2 3/4 acre lot, which is closer in size to the 2.71 acres of the Ridge lot alone.
Defendants argue plaintiffs cannot establish the size of the Cedar Beach Road parcel because they failed to designate an expert surveyor. The dimensions of the parcel are clear from the facts, however, and it is a simple calculation from those dimensions to determine the size of roughly 0.28 acre. (Supp. S.M.F. ¶ 7; Eisenstein Aff. ¶ 11.)
Defendants claim the notice applied to all of Ms. Starbranch's property, including Cedar Beach Road. (Abrahamsons & Gables's Opp. S.M.F. ¶ 22.) They argue first that the statute does not require a precise description of the land posted. 14 M.R.S. § 812. The statute requires a person who is concerned about an easement "in or over his land" to post a notice is some conspicuous place. In her affidavit, Ms. Starbranch states she "posted two notices of her intention to prevent the acquisition of a right-of-way or other easement in or over her land in conspicuous places . . . ." The affidavit itself raises a genuine issue of material fact regarding whether the notice applied to Cedar Beach Road.
Defendants also argue that because the Road lot abutted and is contiguous to the remainder of the Sturtevant / Starbranch property, the lots merged. See Fitanides v. Holman, 310 A.2d 65, 67 (Me. 1973). Accordingly, defendants argue the notice applied to all of the Sturtevant / Starbranch land. Plaintiffs filed a motion to strike this legal argument pursuant to Rule 12(f). M.R. Civ. P. 12(f); see also M.R. Civ. P. 56(i)(l). Rule 12(f) applies to pleadings. Further, defendants are not proposing a new cause of action; they are stating the law. Defendants have not waived the ability to argue the law.
Defendants next rely on the proposed expert testimony of Attorney Ronald Bissonnette. Defendant Gables designated real estate attorney Ronald Bissonnette as an expert. After reviewing the documents in this case, he opined: "a prudent attorney skilled and experienced in examining title could not conclude that the 1962 Notice does not encompass, include, or refer to the earth described as the Beach Road owned by Meredith Kells Starbranch and Julia Sturtevant at the time of the 1962 Notice." (Abrahamson Add. S.M.F. ¶ 32; Gables Add. S.M.F. ¶ 31.) He further states that "the Notice could very well pertain to the Beach Road, thereby foreclosing any opportunity to claim an easement . . . ." (Abrahamson Add. S.M.F. ¶ 33; Gables Add. S.M.F. ¶ 32.) Finally, he states, "the [1979] letter leads me to conclude that the 1962 notice was intended to include the Beach Road, although that is a factual determination that I would leave to the factfinder." (Pls.' Am. Reply S.M.F. ¶¶ 31-32.)
Under Rule 702 of the Maine Rules of Evidence, if "specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert . . . may testify thereto in the form of an opinion or otherwise." M.R. Evid. 702. "Although the expert need not be able to state his opinion with any special degree of certainty, he must be able to provide some insight beyond the kind of judgment an ordinarily intelligent juror can exert." State v. Woodburn, 559 A.2d 343, 346 (Me. 1989). When applying Rule 702, "the trial court must consider whether the matter is beyond common knowledge so that the untrained juror will not be able to determine it intelligently and whether a person with specialized knowledge can give a helpful opinion." Pelkey v. Canadian Pac. Ltd., 586 A.2d 1248, 1254 (Me. 1991). The issue is whether a "notice [was] posted in some conspicuous place upon the premises for 6 successive days." That matter is not beyond common knowledge.
Even assuming specialized knowledge would help the trier of fact in this case, Attorney Bissonnette's, testimony provides only that there is an issue of fact as to whether the notice applies to Cedar Beach Road. His testimony is insufficient to support a summary judgment in favor of the defendants, as they request. (Gables's Mem. at 8-9; Abrahamson Mem. at 11.)
--------
Finally, defendants rely on the supplemental affidavit of Harry Starbranch, Meredith Starbranch's son. Although Attorney Starbranch does not have personal knowledge of the 1962 posting, he states in his affidavit that his family "consistently and regularly attempted to prevent the general public from using Cedar Beach Road as an access to Merry's Cove or Cedar Beach . . . ." (H. Starbranch Aff. ¶ 6.); Gilbert v. Curtis, 37 Me. 45, 49 (1854). He states further, "the only access to the cove or the beach was along the road." (H. Starbranch Aff. ¶¶ 7, 15.) Based on Mr. Starbranch's testimony, a genuine issue of material fact has been raised regarding whether the 1962 posting to apply to Cedar Beach Road.
The entry is
Plaintiffs' Motion for Partial Summary Judgment is DENIED.
Defendants' Motion for Partial Summary Judgment is DENIED.Date: May 1, 2014
/s/_________
Nancy Mills
Justice, Superiors
RE-12-392 DAVID BERTONI ESQ
ANNE TORREGROSSA ESQ
BRANN & ISAACSON
PO BOX 3070
LEWISTON ME 04243-303
CHRISTIAN CHANDLER ESQ
CURTIS THAXTER
PO BOX 7320
PORTLAND ME 04112-7320
RICHARD ABBONDANZA ESQ
GERALD SCHOFIELD JR ESQ
HOPKINSON & ABBONDANZA
511 CONGRESS ST
SUITE 801
PORTLAND ME 04101