Almeder v. Town of Kennebunkport

• Decision Date: 16 October 2012
• Docket Number: Civil Action RE-09-111
• Parties: ROBERT F. ALMEDER and VIRGINIA S. ALMEDER, et al., Plaintiffs v. TOWN OF KENNEBUNKPORT and ALL PERSONS WHO ARE UNASCERTAINED, not in being, unknown or out of the State, heirs or legal representatives of such unascertained persons, or such persons as shall become heirs, devisees or appointees of such unascertained persons who claim the right to use or title in Plaintiffs' Property other than persons claiming ownership or easement by, through, or under an instrument recorded in the York County Registry of Deeds, et al. Defendants
• Court: Maine Superior Court

ROBERT F. ALMEDER and VIRGINIA S. ALMEDER, et al., Plaintiffs
v.
TOWN OF KENNEBUNKPORT and ALL PERSONS WHO ARE UNASCERTAINED, not in being, unknown or out of the State, heirs or legal representatives of such unascertained persons, or such persons as shall become heirs, devisees or appointees of such unascertained persons who claim the right to use or title in Plaintiffs' Property other than persons claiming ownership or easement by, through, or under an instrument recorded in the York County Registry of Deeds, et al. Defendants

Civil Action No. RE-09-111

Superior Court of Maine, York

October 16, 2012

PLAINTIFFS ATTORNEYS Sidney Thaxter, Esq., Regan Haines, Esq., David Silk, Esq., CURTIS THAXTER STEVENS BRODER & MICOLEAU, Christopher Pazar, Esq. DRUMMOND & DRUMMOND One Monument Way.

DEFENDANTS ATTORNEYS Brian D. Willing, Esq., Amy Tchao, Esq., Melissa Hewey, Esq., DRUMMOND WOODSUM & MACMAHON, Neal Weinstein, Esq., LAW OFFICES OF NEAL WEINSTEIN, Thomas R. McNaboe, Esq., LAW OFFICE OF THOMAS R MCNABOE, Gregg R. Frame, Esq., Andre Duchette, Esq., TAYLOR MCCORMACK & FRAME LLC.

Lead Attorney for Plaintiffs: Sidney St. Thaxter, Esq. Curtis Thaxter, LLC.

Lead Attorney for the Town of Kennebunkport: Brian Willing, Esq. Drummond Woodsum.

Lead Attorney for TMF Group Andre Duchette, Esq. Taylor McCormack & Frame, LLC.

For the State of Maine: Paul Stern, A.A.G. Office of the Attorney General.

Prose Litigants: Alexander Lachiatto Judith Lachiatto, Richard Driver Margarete Driver.

ORDER

G. ARTHUR BRENNAN, Justice.

Approximately twenty-six owners of lots fronting Goose Rocks Beach in the Town of Kennebunkport have brought this action seeking a declaration that they hold fee title to the low-water mark and a judgment quieting that title. They do not dispute any interests in the beach established by deed in the York County Registry. The named defendants are the Town of Kennebunkport and "all persons who are unascertained, not in being, unknown or out of the State, heirs or legal representative of such unascertained persons, or such persons as shall become heirs, devisees or appointees of such unascertained persons who claim the right to use or title in Plaintiffs' Property other than persons claiming ownership or easement by, through, or under an instrument recorded in the York County Registry of Deeds."

A variety of motions relating to service, intervention, joinder, and various counterclaims and defenses are before the court.

1. Notice and Service

The plaintiffs filed their complaint on October 26, 2009, and on November 17, 2009 filed notice that they would provide the unascertained defendants with notice by publication in the Journal Tribune, a newspaper published in York County. An advertisement titled "Notice to Persons Who Are Unascertained and to the General Public Pursuant to 14 M.R.S. § 6653" was published among the paper's legal notices on November 20, 2009, November 27, 2009, and December 4, 2009. The plaintiffs did not request the court's permission to serve process by publication or obtain an order authorizing the action as Rule 4 requires. The defendant Town of Kennebunkport objects to the plaintiffs' action on the grounds that they failed to personally serve ascertainable potential claimants and failed to follow the appropriate procedure to permit notice by publication.

"Service of process serves the dual purposes of giving adequate notice of the pendency of an action, and providing the court with personal jurisdiction over the party properly served. . . . 'Any judgment by a court lacking personal jurisdiction over a party is void.'" Gaeth v. Deacon, 2009 ME 9, ¶ 20, 964 A.2d 621, 626 (quoting Brown v. Thaler, 2005 ME 75, P 10, 880 A.2d 1113, 1116). At hearing, the parties agreed through counsel to collaboratively effect personal service on the sixty-five owners of property on Goose Rocks Beach who are not currently named in this litigation. These are necessary parties subject to personal service of process who must be joined pursuant to Rule 19 if feasible. See Eaton v. Town of Wells, 2000 ME 176, ¶ 47, 760 A.2d 232, 248.

The parties also agreed to work collaboratively to provide notice to "unascertained" parties, by means of Rule 4(g) or other equally effective procedures. The court approves of these actions and will reserve ruling on the Town's objection to notice while they are underway. The parties will work together to create a new scheduling order, and discovery shall proceed among those already named in this litigation.

2. The State of Maine's Motion to Intervene

The State seeks to intervene as a defendant pursuant to Rule 24, citing the public interest in maintaining access to Maine's beaches and its past involvement in the cases of Eaton v. Town of Wells, 2000 ME 176, 760 A.2d 232, Bell v. Town of Wells, 557 A.2d 168 (Me. 1989) ("Bell II"), Bell v. Town of Wells, 510 A.2d 509 (Me. 1986) ("Bell I"); Opinion of the Justices, 437 A.2d 597 (Me. 1981), and more recently Flaherty v. Muther, Cumb. Cty. Super. Ct. No. RE-08-098 (July 30, 2009) (Crowley, J.). In Bell v. Town of Wells, the Law Court recognized "that the Attorney General, as the chief law officer of the State, has the power and duty to institute, conduct and maintain such actions and proceedings as he deems necessary for the protection of public rights and to defend against any action that might invidiously interfere with the same." Bell I, 510 A.2d at 519 (quoting In re Estate of Thompson, 414 A.2d 881, 890 (Me. 1980)) (quotations omitted).

Like Bell, the resolution of this case "will affect the rights of the public at [this] beach and may through the persuasive authority of that decision affect public rights at other Maine beaches." Id. This broad public interest in Maine's coast is distinct from the Town's particular interest in Goose Rocks Beach, and cannot adequately be defended by unascertained members of the public at large. The State's motion to intervene is granted. As both the State and the Town will be representing the public's interest in the beach, the court declines the Town's suggestion to appoint a guardian ad litem to represent unascertained parties at this time.

3. The TMF Interveners; Richard & Mary Steiger's Motion to Intervene; Christopher & Janice Tyrrell's Motion to Intervene; Robert & Leslie Sullivan's Motion to Intervene; and Defendant Mark Smith's Motion to Substitute Counsel

The so-called TMF interveners are some 171 parties being represented by the law firm of Taylor, McCormack, & Frame, LLC. The original group consisted of 167 parties, but has grown to include Robert and Leslie Sullivan, Richard and Mary Steiger, Christopher and Janice Christo Tyrrell, and Mark W. Smith.^[1] Also, three additional parties submitted responsive filings after the deadline to respond or intervene. These are Roger C. and Nancy H. Allen; Kendall and Linda Burford; and David Green and Jean French. Their answers and counterclaims are essentially identical to those of the TMF interveners, and they will be treated in kind.

All of the TMF parties appear to have some connection to the Goose Rocks Beach area of Kennebunkport, Maine, but none claim any deeded title to the beach itself. Instead, their proposed counterclaims assert that the fee title in the beach resides in the Town of Kennebunkport, and in the alternative that they the beach-going public have obtained easement rights under various theories. They seek to intervene as defendants and counterclaimants pursuant to Rule 24, asserting that they are the "unascertained persons . . . who claim the right to use or title in Plaintiffs' Property" and that while their interests overlap with the Town's, they are not currently being adequately represented.

The plaintiffs oppose the TMF interveners' motion on the grounds that they lack standing to assert a claim and have not met the requirements of Rule 24. The TMF interveners' alleged interest is essentially the public interest, which the plaintiffs argue is already being fully represented by the Town and the State. The plaintiffs also fear that allowing the TMF parties to intervene in the litigation would add significant complication and delay without any commensurate benefit to either the current parties or the interveners. The plaintiffs note that they would not object to granting the TMF interveners amicus curiae status, nor would they object to a group of interveners able to assert personal, rather than public, claims.

The TMF interveners have not cited any statutory right to participate in this litigation, so they may only enter the case if they satisfy Rule 24(a)(2) or receive permission under Rule 24(b). Rule 24(a)(2) requires the interveners to demonstrate an interest in the subject property, a likelihood that the resolution of this case will impair their ability to protect their interest, and that their interest is not already being adequately represented. Rule 24(b) allows the court to permit intervention if the would-be interveners show that they have a claim or defense that shares a common question of law or fact with the main action, and that their intervention will not unduly delay or prejudice the rights of the existing parties. These rules presuppose that the intervener has standing to bring an independent claim.

"Standing of a party to maintain a legal action is a 'threshold issue'" and a prerequisite to judicial relief. Ricci v. Superintendent, Bureau of Banking, 485 A.2d 645, 647 (Me. 1984). While the concept of standing may be somewhat amorphous, it generally requires that a party have an interest in a controversy "that is 'in fact distinct from the interest of the public at large.'" Nergaard v. Town of Westport Island, 2009 ME 56, ¶ 18, 973 A.2d 735, 740 (quoting Ricci, 485 A.2d at 647); see Nichols v. Town of Rockland, 324 A.2d 295, 296 (Me. 1974) (standing is an amorphous concept relating to presence of a justiciable controversy capable of...