Fitzpatrick v. Rowell

• Decision Date: 18 November 2004
• Docket Number: Civil Action CV-03-197
• Parties: JOHN FITZPATRICK, Plaintiff v. GLENDON ROWELL, Defendant
• Court: Maine Superior Court

JOHN FITZPATRICK, Plaintiff v. GLENDON ROWELL, Defendant

Civil Action No. CV-03-197

Superior Court of Maine, York

November 18, 2004

ORDER

G Arthur Brennan, Justice.

This case comes before the Court on Plaintiff John Fitzpatrick's motion for leave to add an additional plaintiff, and on Defendant Glendon Rowell's motion for summary judgment on all counts of the Plaintiff's complaint, pursuant to Rule 56 of the Maine Rules of Civil Procedure. For reasons stated below, the Motion to Amend is Granted, and the Motion for Summary Judgment is Granted in part and Denied in part.

FACTS

Plaintiff John Fitzpatrick (Plaintiff) bought property at 13 Sand Point Road in Kennebunkport, Maine. In 1990, Plaintiff transferred title to his wife, Jan Fitzpatrick. In a letter dated May 29 1995, Plaintiff asked his abutting neighbor, Defendant Glendon Rowell (Rowell), if Plaintiff could, at his own expense, cut down some trees from Rowell's property and replace them with different trees in order to enhance Plaintiff's view of the ocean. Plaintiff also submitted a landscape company's diagram of the proposed planting to Rowell. Because Rowell was frequently absent, Plaintiff and Rowell sometimes communicated through Rowell's sister. Although Plaintiff later proposed an alternative plan, Rowell agreed to Plaintiff's original plan. In September 1996 the landscape company cut Rowell's trees that were obstructing Plaintiff's view, and replaced them with twelve junipers.

Beginning in 2002, Plaintiff began an extensive renovation of his house. That summer, Plaintiff contacted Rowell through Rowell's sister, asking to have the junipers trimmed because they had grown to obstruct Plaintiff's view. Rowell cut some growth from the tops of the trees. Rowell also inquired about Plaintiff's renovation plans to see whether the plans included raising the height of his deck to ensure his ocean view.

Sometime in April or May 2003, someone cut back many of the junipers along the property line with Plaintiff to a height of five or six feet without Rowell's permission, leaving limbs scattered around Rowell's property. Plaintiff and Rowell's nephew, Bruce Jones, were involved in a heated confrontation concerning the cut trees and scattered limbs in Rowell's yard. At that time, Mr. Jones said to Plaintiff "We are going to plant forty-foot trees." In May 2003, Rowell contracted with a landscape company to remove the damaged trees and plant new trees. In August 2003, the company replaced the cut junipers with five arborvitaes trees.

In August 2003, Plaintiff brought a suit against Rowell for private nuisance in erecting a "spite fence, "^[1] breach of contract, and promissory estoppel, and seeking a temporary restraining order. Rowell counterclaimed, charging Plaintiff with trespass, injury to land, ^[2] and punitive damages. Plaintiff's Motion to Strike Rowell's counterclaims was denied.

In June 2004, Plaintiff requested permission of this court to add Jan Fitzpatrick as a named plaintiff after discovering that title to the 13 Sand Point Road property was judgment on all Plaintiff's claims.

DISCUSSION

I. Plaintiffs Motion to Add Named Plaintiff.

Plaintiff argues that addition of named plaintiff, Jan Fitzpatrick, would have no bearing on the substantive issues in this case, would not add additional claims, or enlarge the scope of this litigation, and would in no way prejudice Defendant Rowell or enlarge discovery. Defendant Rowell argues that Plaintiff's motion is untimely and characterizes the request as one for "post discovery joinder." Finally, Rowell argues that Plaintiffs "joinder motion" is futile because Rowell is entitled to judgment as a matter of law on all Plaintiff's claims, whether Jan Fitzpatrick is joined or not.

When faced with both a motion for summary judgment and a Rule 15(a) motion to amend the pleadings, the Law Court has noted that "considerations of finality and judicial economy suggest that a court should dispose of the pending rule 15(a) motion prior to entertaining a summary judgment." Kelly v. Michaud's Ins. Agency Inc. 651 A.2d 345 (Me. 1994)(citing Glynn v. City of So. Portland, 640 A.2d 1065, 1067 (Me. 1994)). This is to ensure that the amending party "is not unfairly precluded from specifying facts that could otherwise defeat a summary judgment." Id.

Here the parties offer no evidence that Plaintiff is seeking to unjustifiably delay the proceedings by seeking to add Jan Fitzpatrick, title holder to the property and wife of the Plaintiff, to the Complaint. Nothing asserted by Plaintiff or Rowell suggests Rowell will be prejudiced by the addition of Jan Fitzpatrick, or that further discovery will be incurred. Indeed Rowell asserts that his arguments for summary judgment are in no way dependant on the absence of Jan Fitzpatrick as a party.

In the absence of delay and undue prejudice to the defendant, this Court Grants Plaintiff's motion to add Jan Fitzpatrick as a plaintiff in the above captioned cause of action, pursuant to Rule 15 of Maine rules of Civil Procedure.

II. Defendant's Motion for Summary Judgment.

On a motion for summary judgment, the court will view the evidence in the light most favorable to the party against whom judgment is sought, "to decide whether the parties' statements of material facts and the referenced record material reveal a genuine issue of material fact." Rogers v. Jackson, 2002 ME 140, ¶ 5, 804 A.2d 379, 380 (citations omitted). The court will give the party opposing a summary judgment the benefit of any inferences that might reasonably be drawn from the facts presented. Curtis v. Porter, 2001 ME 158, ¶ 9, 784 A.2d 18, 22. If the record reveals no genuine issue of material fact, then a summary judgment is proper. Curtis, 2001 ME 158 at ¶ 6, 784 A.2d at 21. When the moving party is the defendant, the burden rests on that party to show that the evidence fails to establish a prima facie case for each element of the cause of action. Stewart ex rel. Stewart v. Aldrich, 2002 ME 16, ¶8, 788 A.2d 603, 606.

Count I: Private Nuisance.

Plaintiff alleges that the Defendant Rowell violated Maine's statute governing the erection of so-called "spite fences" when he installed five arborvitae trees to replace the vandalized junipers. 17 M.R.S.A. § 2801 provides that "[a]ny fence or other structure in the nature of a fence, unnecessarily exceeding 6 feet in height, maliciously kept and maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance." The Law Court has held it is not necessary for a person objecting to such a fence "to prove that malice, the purpose to annoy, was the sole motive for building the fence. It was only necessary to prove that such was the dominant motive." Healy v. Spaulding, 104 Me. 122, 125, 71 A.2d 472, 473 (1908). However, because Maine's statute operates in derogation of the common law principle allowing such barriers as a right of private property owners, it is strictly construed in favor of the party erecting the fence. 9-62 POWELL ON REAL PROPERTY § 62.05. Thus, Maine's statute has been found not to apply when a fence served some useful purpose, even when malice was the primary motive for erecting the fence. Id. (citing Lord v. Langdon, 91 Me. 221, 222, 39 A. 552, 552 (1898))(finding that unless a plaintiff can prove that a fence was unnecessary, "there can be no liability, no matter what may be the motive of the owner in erecting it.") Id.

Rowell argues that because Row ell did not choose the type of tree that replaced the damaged junipers, Plaintiff has no evidence of Rowell's alleged malice or motive to annoy, and Rowell is entitled to judgment as a matter of law. Instead, Rowell claims, the only available evidence shows he was motivated by a desire for privacy. Plaintiff argues that there is ample evidence of the malice and motive to annoy in Rowell's installation of a much taller type of tree in the path of Plaintiff's view.

Here the record provides evidence of an ongoing, sometimes deeply acrimonious dispute between the parties regarding trimming the junipers, damage to the junipers in May 2003, and the installation of the taller arborvitae trees. The altercation between Plaintiff and Rowell's nephew, Bruce Jones, letters of the parties, and beliefs expressed by Rowell and others that Plaintiff was the only one motivated to vandalize the junipers, raise a genuine issue of material fact concerning Rowell's motives in installing the arborvitae sufficient to withstand Defendant's motion for summary judgment on Count I., ,

Count II Breach of Contract: Violation of View Easement

In Count II, Rowell argues that Plaintiff presented no evidence of any agreement to keep the trees trimmed, creating a view easement, and that enforcing any alleged easement is barred by the Statute of Frauds. Plaintiff argues there is a genuine issue of fact as to whether Rowell entered into a binding and valid agreement for a view easement by agreeing to keep trees blocking Plaintiff's view of the ocean trimmed to a certain height, and violated the terms of the easement by planting the arborvitae. Plaintiff also argues the agreement is not subject to the Statute of Frauds because Rowell has admitted entering the agreement.

Easements for almost any purpose may be created by express agreement between private parties.^[3] A property owner may give a party permission to make use of the owner's property, or may agree to refrain from doing something on his own property. Restatement (Third) of Property §§ 451, 452. A negative easement gives the holder "the power to prevent the servient owner from doing, on his or her premises, acts that, but for the easement, the servient owner would be privileged to do."^[4] 4 Powell on Real Property, §...