Earl T v. Iii
| Decision Date | 02 August 2010 |
| Docket Number | NO: CV-09-035,: CV-09-035 |
| Parties | EARL T. AND SANDRA S. HOLDSWORTI I, Plaintiffs, v. DAVID HIGGINS III AND LINDA S. RIVARD,Defendants |
| Court | Maine Supreme Court |
ORDER ON DEFENDANTS'MOTION FOR SUMMARY JUDGMENT
Defendants David Higgins III and Linda S. Rivard move for summary judgment on their counterclaim and on all counts of plaintiffs Earl and Sandra Holdsvvorth's complaint. The Holdsworths accuse the defendants of slandering their title, tortiously interfering with a contractual relationship, and negligently claiming a property right in connection with a boundary dispute that allegedly prevented the Holdsworths from selling their property. The defendants deny the allegations and have counterclaimed for declaratory judgment affixing the disputed boundary. The court grants the defendants summary judgment on the Holdsworths' tort claims, but denies judgment on their declaratory action.
On November 17, 1969, plaintiffs Earl T. and Sandra S. Holdsworth purchased property at 111 Bruce Hill Road in Cumberland, Maine, from grantors Paul G. Lebel and Michael Lenoci. (PL's Opp. S.M.F. ¶1.) On November 28, 1969, David Higgins, Jr. and Marilyn Higgins acquired an adjacent parcel of property at 107 Bruce Hill Road from grantors Gene and Carol M. Stratton. (PL's Opp. S.M.F. ¶¶2-4.) The two properties were originally joined as one twelve-acre parcel. (PL's Add'l S.M.F.¶ 10.) The Strattons' deed described their land as onehalf the original twelve acres, and the Holdsworths' deed describes their property as six acres. (PL's Add'l S.M.F. ¶¶4, 9.) Neither deed contained any metes-and-bounds description or referenced any monuments. (PL's Add'l S.M.F.¶¶4, 9)
In 1969, before the Higgins purchased their property, Robert G. Blanchard surveyed the land and found or installed monuments marking the boundaries. He located the boundary between the Stratton and Holdsworth parcels at the center of a driveway and identified the Stratton parcel as encompassing approximately six and one-third acres (6.38± acres). (See L. Rivard Aff. Ex. 1.) The Higgins-Stratton deed, drawn after Mr. Blanchard's survey, contains the first metes-and-bounds description of the property and incorporates Mr. Blanchard's survey plat by reference. (PL's Opp. S.M.F. ¶¶14, 16.)
The Holdsworths access their property by the driveway at the adjacent properties' boundary, and the Higgins used the same driveway to access the rear of their parcel. (PL's Opp. S.M.F. ¶¶ 5, 21.) Between 1969 and 2007, all parties believed that the boundary line began at the center of the driveway and that the parties shared ownership of that driveway. (PL's Opp. S.M.F. ¶¶20, 25, 113.) This is reflected in the Higgins-Stratton deed's metes-and-bounds, is depicted on the Blanchard Survey, 1 and is consistent with what the Strattons told the Higgins at the time of purchase. (PL's Opp. S.M.F.¶¶6-7, 9, 14-15.)
In 1986 defendants David Higgins III and Linda S. Rivard purchased the property at 107 Bruce Hill Road from David's parents, David and Marilyn Higgins. (PL's Opp. S.M.F. ¶¶13, 17.) The defendants' deed contains the same metes-and-bounds description as the Higgins-Stratton deed, and the defendants were given a copy of the Blanchard Survey at the time of purchase. (PL's Opp. S.M.F. ¶¶13, 17.) While the Blanchard Survey shows that the defendants' land is approximately six and one-third acres, town property tax records list the property as six acres. (PL's Add'l S.M.F. ¶¶17-24.)
In 1991 the Holdsworths hired surveyor Daniel LaPoint to locate their boundaries. (PL's Opp. S.M.F. ¶26.) They were interested in subdividing and developing the rear of their property and needed assistance finding their boundary markers. (PL's Opp. S.M.F. ¶26.) Mr. LaPoint prepared a document titled "Standard Boundary Survey Plan of Land" which located the boundary at the center of the driveway, consistent with the earlier Blanchard Survey.2 (PL's Opp. S.M.F. ¶¶27, 29.) In 1993 Mr. LaPoint used his information from 1991 to calculate a five-acre lot split on the Holdsworths' land. (PL's Opp. S.M.F. ¶¶33-36.) The lot split included a metes-and-bounds description of the Holdsworths' property that placed the boundary monument in the center of the disputed driveway. (PL's Opp. S.M.F. ¶¶37-38.) While the Holdsworths ultimately abandoned their subdivision plans, they retained copies of Mr. LaPoint's work in their files. (PL's Opp. S.M.F.¶44.)
The Holdsworths decided to sell their property, and on July 5, 2006 their real estate agent David Banks placed it in the Multiple Listing Service. (PL's Opp. S.M.F.¶¶45, 47.) At that time the Holdsworths told Mr. Banks that they and the defendants shared ownership of the driveway, and showed him a depiction of the property that located the boundary line at the center of the drive. (PL's Opp. S.M.F. ¶¶48-49.) Mr. Banks met with the defendants approximately thirty days later. (PL's Opp. S.M.F. ¶ 52.) He told them that he understood from the Holdsworths that they owned a portion of the driveway, and told them that a written agreement regarding the driveway would probably be necessary for financing purposes. (PL's Opp. S.M.F. ¶¶ 52-53.) Mr. Higgins and Ms. Rivard indicated that they were willing to consider such an agreement, but expressed their concern about increased traffic if the Holds worth parcel was ever subdivided and developed. (PL's Opp. S.M.F. ¶54.)
John E. and Mary Jo Cashman became interested in purchasing the Holdsworths' property, and on July 29, 2006, their real estate agent Pat Rabidoux met with Mr. Banks to view the parcel. (PL's Opp. S.M.F. ¶¶55-56.) Mr. Banks told Ms. Rabidoux that the driveway was shared with the abutting owners and that the Cashmans would probably have to relocate it if they planned to develop the land. (PL's Opp. S.M.F.¶¶57-58.) On August 9, 2006, the Cashmans and the Holdsworths entered into a purchase-and-sale agreement pricing the property at $1,200, 000. (PL's Opp. S.M.F. ¶59.) The agreement included a copy of Mr. LaPoint's "Standard Boundary Survey Plan of Land," initialed by the Holdsworths and Cashmans, depicting the boundary as being at the center of the driveway. (PL's Opp. S.M.F.¶¶60, 63.)
On August 28, 2006, the purchase-and-sale agreement was amended to address a number of concerns, one of which was the driveway. (PL's Opp. S.M.F. ¶¶65-66.) The amendment conditioned the closing on the Holdsworths either:
(PL's Opp. S.M.F.¶66.) Then on September 21, 2006, the Cashmans reduced their offer to $1,100, 000 due to issues identified by a building inspection. (PL's Opp. S.M.F. ¶¶59, 61.)
On October 18, 2006, Mr. Banks provided Mr. Higgins with a proposed easement drafted by the Cashmans' attorney. (PL's Opp. S.M.F. ¶70.) The proposal identified Mr. Higgins as the grantor and would create an easement "for access to a single family residence and accessory structures only," and provided that the grantees would be responsible for maintaining the casement area. (PL's Opp. S.M.F. ¶71-73.) The proposal also included a land plat depicting the boundary as running through the center of the driveway. (PL's Opp. S.M.F. ¶74.)
The defendants gave the proposal to their attorney, Peter Van Hemel, who drafted a counterproposal. (PL's Opp. S.M.F. ¶79.) The counterproposal was given to Mr. Banks, who forwarded it to Ms. Rabidoux. (PL's Opp. S.M.F. 80, 82.) The Cashmans' attorney then contacted Mr. Van Hemel directly and told him that the counterproposal was not acceptable, but that "at most, [the Cashmans] would consider [adding] a sentence addressing respective liability" to their original proposal. (PL's Opp. S.M.F.¶85.) These negotiating positions were also communicated to Mr. Banks. (PL's Opp. S.M.F. ¶86.) Mr. Van Hemel advised Mr. Higgins and Ms. Rivard that they did not have to accept the Cashmans' proposal or enter any sort of agreement with the Holdsworths. (PL's Opp. S.M.F. ¶89.)
On February 9, 2007, the Cashmans terminated the purchase and sale agreement without breach. (PL's Opp. S.M.F. ¶¶91-92.) On February 23, 2007, they made a new offer to purchase the Holdsworths' property for $1,100, 000, contingent on the Holdsworths installing a new driveway. (PL's Opp. S.M.F. ¶93.) A new driveway would have cost approximately $20,000. (PL's Opp. S.M.F. ¶69.) The Holdsworths rejected the offer. (PL's Opp. S.M.F. ¶94.) In March 2007 Paul Babbidge of Titcomb Associates conducted a new survey of the Holdsworths' property. (PL's Opp. S.M.F. ¶95.) This new Titcomb Survey located the boundary between the Holdsworths' and defendants' properties to the southwest of where the Blanchard Survey had identified, placing the entire driveway on the Holdsworths' land. (PL's Opp. S.M.F. ¶¶95-96.)
On March 22, 2007, Mr. Banks met with Mr. Higgins to give Mm a copy of the Titcomb Survey and advise him that the Holdsworths would probably litigate the matter if the defendants refused to accept the new boundaries. (PL's Opp. S.M.F.¶¶96, 108-09.) Mr. Higgins became agitated and a contentious exchange occurred in which he asserted that he had a right to use or close the driveway and possibly stated that he would do so. (PL's Opp. S.M.F.¶¶96, 106-11.) However, Mr. Higgins quickly "backed off" from his statements and told Mr. Banks that he did not "want to get in the middle of this." (PL's Opp. S.M.F. ¶112.) There is no allegation that Mr. Higgins ever attempted to prevent the Holdsworths from using the driveway, or that his specific...
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