Sleeper v. Loring, Docket No. Cum–12–488.

• Decision Date: 24 December 2013
• Docket Number: Docket No. Cum–12–488.
• Parties: Gary SLEEPER et al. v. Donald R. LORING et al.
• Court: Maine Supreme Court

83 A.3d 769

2013 ME 112

Gary SLEEPER et al.

v.Donald R. LORING et al.

Docket No. Cum–12–488.

Supreme Judicial Court of Maine.

Argued: Sept. 12, 2013.

Decided: Dec. 24, 2013.

Robert S. Hark, Esq. (orally), Portland, for appellants Gary Sleeper, Ramona Sleeper, Richard Roy, and Holly Roy.

William H. Dale, Esq. (orally), and Mark A. Bower, Esq., Jensen Baird Gardner & Henry, Portland, for appellees Donald R. Loring, Marilyn P. Loring, Harry Greenlaw, and Ann Greenlaw.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

GORMAN, J.

[¶ 1] This case involves a dispute over a parcel of land located on the northwest shore of Sebago Lake, referred to here as lot 40A. The plaintiffs, Gary Sleeper, Ramona Sleeper, Richard Roy, and Holly Roy, all of whom own property near but not on Sebago Lake, appeal from a judgment of the Superior Court (Cumberland County, Cole J.) in favor of the defendants, Donald R. Loring, Marilyn P. Loring, Harry Greenlaw, and Ann Greenlaw, all of whom own shorefront property on the lake. The court found that the defendants hold fee simple title to lot 40A and that an easement held by the plaintiffs over lot 40A does not grant them a right to maintain a dock. Based on our de novo review of the summary judgment record, we conclude as a matter of law that a deed in the defendants' chains of title unambiguously excepts lot 40A from a prior conveyance and that deeds in the plaintiffs' chains of title are ambiguous as to whether the dock is allowed. We vacate the judgment and remand for further proceedings.

I. BACKGROUND

[¶ 2] The following facts are established by the summary judgment record. Pursuant to a declaration of trust dated March 1, 1955, and recorded in the Cumberland County Registry of Deeds, Delmont R. Hawkes conveyed a piece of property in the Town of Sebago to D. Wilson Hawkes. This parcel, which included waterfront property on Sebago Lake, was to be held in trust by D. Wilson Hawkes for himself, Delmont R. Hawkes, and two others in order to allow the property to be subdivided and developed by Clifford L. Swan Co. into “summer and/or winter residential properties.” In July of 1955, Swan recorded a copy of the plan for the North Sebago Shores subdivision in the Registry.

[¶ 3] Over time, the subdivision lots were sold to various persons, including the parties' predecessors in title. In 1970, D. Wilson Hawkes executed a deed to the Town of Sebago granting it fee simple title to the perimeter road (now known as the Anderson Road, but then known as the Hawkes Road) and to another road that connected the subdivision lots with state highway 114. The conveyance was made subject to the rights of third parties to use the roads.

[¶ 4] The trust remained in existence until 1972, when it conveyed its remaining property to D. Wilson Hawkes, Beryl Josephson, and F. Arnold Josephson as co-partners of Hawkes Lumber Company. The Josephsons later filed a partition action against D. Wilson Hawkes relating to several parcels of land that they had held as tenants in common, including the subdivision. On December 24, 1976, as a result of a judgment in the partition action, attorneys Sumner T. Bernstein and Charlton S. Smith acquired title, in a fiduciary capacity, from Hawkes and the Josephsons to whatever remaining ownership interest the co-partners had in the subdivision.

[¶ 5] Shortly thereafter, in August of 1977, Bernstein and Smith executed a quitclaim deed to Bradley Benson. Benson's deed included a description of the parent parcel ( i.e., the North Sebago Shores subdivision parcel as it had existed in 1955) immediately followed by two paragraphs excepting certain land from the conveyance. Those paragraphs state:

Excepting, however, from the above described premises all the Arabic numbered lots shown on Plan of North Sebago Shores ... but not excepting those lots at the Southerly end of the premises ... marked “reserved” on said Plan, and designated as lots numbered I, II, III, IV, V and VI thereon, which said six lots are hereby conveyed to the Grantee.

Also excepting that parcel of land shown as a right of way on a plan entitled “Map of Right of Way (1) Hawkes Road of North Sebago Shores Development and (2) Right of Way from said Development to Route # 114, Me. Highway” ... dated May 14, 1970....

[¶ 6] Between 1994 and 1999, the parties to this action acquired fee simple title to five lots within the North Sebago Shores subdivision through separate chains of title: the Greenlaws own lot 40, a parcel adjoining Sebago Lake; the Lorings own lot 41, also a lot adjoining the lake; the Sleepers own lot 71, a back lot fronting the perimeter road; and the Roys own lots 74 and 75, also back lots. Through their deeds, the plaintiffs, as owners of subdivision back lots, acquired an easement consisting of a right-of-way over lot 40A, a twenty-foot-wide strip of land situated between the defendants' lots. The plaintiffs' deeds both state, “[a]lso a right of way from the road to the shore of the lake over [lot 40A] as shown on said plan.”

Sebago Lake

IMAGE

[¶ 7] In November of 2007, Benson executed a quitclaim deed to lot 40A to the defendants. The deed states that the conveyance was “[s]ubject to easements or rights of way to access Sebago Lake to the lot owners as shown on said Plan,” referring to the subdivision plan that had been filed by Swan in 1955.

[¶ 8] Well before Benson's 2007 conveyance of lot 40A to the defendants, the Sleepers had constructed a fifty-four-foot dock extending from lot 40A into Sebago Lake. The Sleepers secured a retroactive permit for its construction from the Town of Sebago in 1999. Eleven years later, in April of 2010, in response to a complaint by the defendants, the Town's code enforcement officer rescinded the permit and ordered the Sleepers to remove the dock. The Sleepers appealed to the Town's zoning board, which upheld the code enforcement officer's decision.

[¶ 9] In July of 2010, the plaintiffs filed suit, challenging, inter alia, the decision of the zoning board and the defendants' fee simple title to lot 40A, and seeking a declaratory judgment that they are entitled to build and maintain a dock at the waterfront of lot 40A.¹ On cross motions for a partial summary judgment, the court found that (1) Benson's deed was ambiguous and a triable issue existed as to the fee simple title of lot 40A, and (2) the easement over lot 40A unambiguously did not grant the plaintiffs a right to construct and maintain the dock. Accordingly, the court denied summary judgment on Count III of the plaintiffs' complaint and granted a summary judgment to the defendants on Count V of the plaintiffs' complaint. A bench trial was held in July of 2012 on Count III, at which the court heard extrinsic evidence to determine the intent of the parties involved in the conveyance of property to Benson in 1977. After trial, the court found that Bernstein and Smith had intended to convey their entire interest in the parent parcel, including fee simple title to lot 40A, to Benson in 1977. The court entered a judgment that the defendants held the fee simple title to lot 40A subject to any “rights of passage” of the back lot owners, including the plaintiffs. The plaintiffs timely appealed.

II. DISCUSSION

[¶ 10] We review the entry of a summary judgment de novo. Cox v. Commonwealth Land Title Ins. Co., 2013 ME 8, ¶ 8, 59 A.3d 1280. “The interpretation of a deed and the intent of the parties who created it, including whether the deed contains an ambiguity, are questions of law,” which we also review de novo. Lloyd v. Benson, 2006 ME 129, ¶ 8, 910 A.2d 1048.

A. Fee Simple Title to Lot 40A

[¶ 11] We begin by reviewing the trial court's determination that the deed from Bernstein and Smith to Benson was ambiguous. The defendants contend that Benson's deed is plagued with ambiguity justifying the court's admission and consideration of extrinsic evidence to determine the parties' intent concerning the conveyance of property to Benson in 1977. Pointing to the two paragraphs excepting certain land from the conveyance of the parent parcel, they assert that the deed is ambiguous as to (1) whether lot 40A is an “Arabic numbered lot” shown on the subdivision plan; and (2) whether lot 40A is part of “that parcel of land shown as a right of way” in a referenced 1970 plan. The defendants also argue that certain recitals following the deed description create further ambiguity as to the grantors' express intentions. We disagree.

1. Meaning of “Arabic Numbered Lot”

[¶ 12] It is well settled law that, in construing a deed, we first give words their general and ordinary meaning to determine if they create any ambiguity. Wentworth v. Sebra, 2003 ME 97, ¶ 10, 829 A.2d 520. Benson's deed refers to two distinct categories of subdivision lots—those designated by Arabic numbers and those designated by Roman numerals. The plain language of the deed reflects that those categories were to be treated differently: the grantors expressly conveyed the lots designated by Roman numerals to Benson, but excepted from the conveyance “all the Arabic numbered lots.” Lot 40A is an Arabic numbered lot; that it also includes a letter from the Latin alphabet does not, as the defendants have asserted, transform its designation. No third category of lots is included in the language of the deed and there is nothing in the deed that indicates that the parties intended to create a third category. See Perry v. Buswell, 113 Me. 399, 401, 94 A. 483, 484 (1915) (stating that the “cardinal rule” for interpreting a deed is “the expressed intention of the parties”).

2. Meaning of “That Parcel of Land Shown As a Right of Way”

[¶ 13] The defendants next contend that Benson's deed is susceptible to more than one construction because it uses the singular form of the terms “parcel” and “right-of-way,” ² while the referenced plan depicts multiple rights-of-way. The referenced plan indeed depicts many rights-of-way, but its title...