Dupuis v. Soucy

• Decision Date: 04 January 2011
• Docket Number: No. Ken-10-139.,Ken-10-139.
• Citation: 2011 ME 2,11 A.3d 318
• Parties: Marc J.J. DUPUIS Jr. v. Ronald SOUCY et al.
• Court: Maine Supreme Court

11 A.3d 318

2011 ME 2

Marc J.J. DUPUIS Jr.

v.Ronald SOUCY et al.

No. Ken-10-139.

Supreme Judicial Court of Maine.

Argued Oct. 6, 2010.

Decided Jan. 4, 2011.

Jamie I. Nichols, Esq. (orally), Sherman & Sandy, Waterville, ME, for Ronald and Danuta Soucy.

Alton C. Stevens, Esq. (orally), Marden, Dubord, Bernier & Stevens, Waterville, ME, for Marc J.J. Dupuis, Jr.

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

MEAD, J.

[¶ 1] Ronald and Danuta Soucy appeal from a judgment and order awarding attorney fees in favor of Marc J.J. Dupuis Jr. entered in the Superior Court (Kennebec County, Mills, J.) in two consolidated cases seeking a declaratory judgment of the boundary between the parties' properties and alleging trespass pursuant to 14 M.R.S. § 7552 (2009).¹ The Soucys argue that the court erred in determining theboundary line and in finding that they acted intentionally or knowingly when cutting Dupuis's trees in the disputed area. The Soucys also argue that there was insufficient evidence to award damages against Danuta Soucy and that the trial court's award of attorney fees violated section 7552.² Because we find that the court acted within its discretion in accepting the conclusions of Dupuis's surveyor and delineating the boundary line, we affirm the boundary determination. We also affirm the court's finding that Ronald Soucy acted intentionally or knowingly when he cut the trees. However, we find that there is insufficient evidence in the record to support a judgment against Danuta Soucy, and section 7552(5) controls the award of attorney fees. Accordingly, we affirm in part, vacate in part, and remand for a recalculation of attorney fees.

I. BACKGROUND

[¶ 2] Dupuis and the Soucys own abutting properties in Winslow. The Soucys purchased their property in June 1979, and Dupuis purchased his property in June 2005. This dispute concerns the northern boundary of the Dupuis property and the southern boundary of the Soucy property.

[¶ 3] Originally, one family owned both parcels. When the owners sold property to the Soucys, they reserved to themselves the property now owned by Dupuis. Larry Pelotte purchased the latter parcel from the original family, and Dupuis purchased the property from Pelotte. In 1984, when Pelotte purchased the property, he walked the property lines with a member of the original family and noticed four pins marking the property: one at the northeast corner of the land, one at the northwest corner, one about fifty feet south of the northwest corner pin, and one at the southeast corner of the land by the road.

[¶ 4] In 1984 and 1985, Pelotte cleared the land, mowed, and planted trees on the northern line of his property. Before he planted the trees, he strung a rope from the northeast corner pin to the northwest corner pin to mark the property boundary. Soucy adjusted the line because the rope was bowed, but he did not move the pins; he then indicated that he was satisfied with the line. ³

[¶ 5] When Dupuis purchased the property in 2005, he walked the property line with Pelotte and saw the same four pins that Pelotte had noticed in 1984. Dupuis trimmed the trees that Pelotte hadplanted and mowed the area under the trees. He put a camper and volleyball net in the area that is now in dispute.

[¶ 6] In 2007, Ronald Soucy first indicated that he was no longer content with the boundary line. At trial, he testified that he thought about a garden that he used to have, and he concluded that the garden extended over the current boundary line, which caused him to question the true location of the boundary. ⁴

[¶ 7] In the late summer of 2007, Ronald Soucy strung a cable across the boundary between the Dupuis and Soucy properties, stretching from the northeast corner pin to the northwest corner pin. That fall, Elwood Ellis began to survey the Soucy parcel at Soucy's request. Because there was a concern about the boundary line, Ellis also surveyed the Dupuis property. Ellis finished that survey in the spring of 2008. In April 2008, Soucy strung a cable from the northeast corner pin to the pin about fifty feet south of the northwest corner pin, declared that this was the boundary, and proceeded to cut down seven or eight of the trees Pelotte had planted that were north of this new line. When he discovered that the trees had been cut, Dupuis left a note for Soucy, requesting that he refrain from cutting more trees until the matter was resolved. Soucy apologized.

[¶ 8] Soucy testified that Ellis gave him the results of the survey soon thereafter, and that the survey indicated that the trees were on the Soucy property. Soucy then cut an additional fifty-two trees and some of the tree stumps. He also pulled one of the pins, which he thought, based on Ellis's conclusions, had nothing to do with the boundary. Although Soucy claimed that he relied on Ellis's conclusions in taking these actions, Ellis testified at trial that the surveys were not finished, stating: "They are not completed at this point in time. It is an unresolved issue at this point."

[¶ 9] Also in the spring of 2008, Dupuis hired David Wendell to survey the property. The first time Wendell went to the property, only a few trees had been cut along Dupuis's northern boundary. Wendell's survey concluded that the boundary was further north than Ellis's survey indicated and that the trees were all on the Dupuis property.

[¶ 10] On October 27, 2008, Ronald and Danuta Soucy filed a complaint against Dupuis in the Waterville District Court claiming trespass and seeking a declaratory judgment that they owned the disputed property. They alleged that Dupuis's septic system was on their property, that Dupuis had removed or disturbed boundary markers, and that Dupuis had intentionally entered their property without consent, privilege, or the right to do so.

[¶ 11] On November 18, 2008, Dupuis filed a complaint against the Soucys in Kennebec County Superior Court claiming common law and statutory trespass and seeking a declaratory judgment that he owned the disputed property. Dupuis alleged that Ronald Soucy had intentionally and/or negligently entered Dupuis's land, removed a boundary marker, and cut down his trees.

[¶ 12] The cases were consolidated in the Superior Court.⁵ After a two-day, jury-waived trial, the court entered judgment in favor of Dupuis and against Ronald and Danuta Soucy on all counts and determined that the boundary was the more northerly line, as depicted on the Wendell survey. The court also determined that, even if the Wendell survey were rejected, Dupuis proved by clear and convincing evidence that he had acquired the northern boundary by acquiescence.⁶

[¶ 13] The court found that the value of the cut trees was $4300. Section 7552(4) ⁷ allows the prevailing party to recover double damages for acts committed without fault or negligently and treble damages for acts committed intentionally or knowingly. The court ordered treble damages, $12,900, for the cut trees, and $2217.70 plus interest pursuant to section 7552(3)(C),⁸ the cost of Wendell's services to reestablish the boundary marker.

[¶ 14] Dupuis filed an affidavit of attorney fees stating that he incurred fees of $21,327.21. The court awarded this full amount plus costs to Dupuis.

[¶ 15] The Soucys moved for findings of fact to clarify the court's order with regard to the following: the intentional or knowing cutting of trees; Ronald Soucy's acquiescence to the 1985 boundary line; Danuta Soucy's liability; the basis for accepting the Wendell survey; the basis for granting judgment against the Soucys on the common law trespass count; and the basis for finding that any actions the Soucys took were without permission of the owner. The court issued a brief order, concluding that its five-page decision included credibility determinations and findings and reasonable inferences based on record evidence, and that the parties had agreed that section 7552 replaced the common law. The Soucys filed a timely appeal.

II. DISCUSSION

A. Location of Boundary

[¶ 16] The Soucys challenge the court's decision accepting the Wendell survey and concluding that the boundary linewas the more northern line. We review the determination of the location of boundaries on the face of the earth as a question of fact, which we will only disturb if clearly erroneous. McGrath v. Hills, 662 A.2d 215, 218 (Me.1995).

[¶ 17] The Soucys argue that the court improperly relied on a 1974 survey of the disputed parcel by Francis Armstrong and on the Dupuis deed. However, the Armstrong survey was incorporated into the purchase and sale agreement between the original family and the Soucys, and the Soucy deed refers to the Armstrong survey. Further, the description of the Dupuis parcel in the Dupuis deed is the same as the description of the excepted property in the Soucy deed. The court's reliance on the Armstrong survey and the description in the Dupuis deed was not clearly erroneous.

[¶ 18] At trial, Wendell testified that he was able to survey a marshy area of the Dupuis property by walking it in the summer or fall. Ellis testified that he found it difficult to walk this area because of the wetlands. Further, Wendell was able to align his survey more closely with the Armstrong survey, whereas Ellis, who had more points of disagreement with that survey, concluded that the Armstrong survey was mistaken or incorrect on these issues. The court's determination to assign more weight to Wendell's testimony and survey than to Ellis's is an appropriate exercise of its ability to judge the credibility of witnesses. See McGrath, 662 A.2d at 218 ("The weight to be given to a surveyor's opinion is the prerogative of the factfinder.").

[¶ 19] The court also determined that the boundary was the more northern line based on the doctrine of boundary by acquiescence, having found the following: there were pins at the northeast and northwest corners of the Dupuis property; Soucy knew in 1985 that Pelotte possessed...